v,^ •«!8.«l»#^ *w3 f ajnrnfU Slam Bt\\nn\ Sjibrary Cornell University Library KF9619.W551918 V.I A treatise on criminal procedure / 3 1924 020 193 862 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020193862 A TREATISE ON Criminal Procedube BY FRANCIS WHARTON, LL.D., Author of Treatise on "Criminal Law," "Evidence," "Conflict of Laws," "Medical Jurispkudence," Etc., Etc. TENTH EDITION WITH LAEGE ADDITIONS BY JAMES M. KERR Volume I SAN FRANCISCO, CALIPOENIA BENDER-MOSS COMPANY 1918 /5 / O O o % Entered according to Act of Congress, in the year 1846, by James Kay, Jb., and Brother, in the office of the Clerk of the District Court of the United States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1852, by James Kay, Jk., and Brother, in the office of the Clerk of the District Court of the United States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1855, by Kay and Brother, in the office of the Clerk of the District Court of the United States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1857, by Kay and Brother, in the office of the Clerk of the District Court of the United States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1861, by Kay and Brother, in the office of the Clerk of the District Court of the United States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1868, by Kay and Brother, in the office of the Clerk of the District Court of the United States, in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1874, by Kay and Brother, in the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1880, by Francis Wharton, in the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1888, by Erancis Wharton, in the Office of the Librarian of Congress, at Washington. Copyright, 1918, by American Security and Trust Company, Substituted Trustee, under the Will of Francis Wharton. Williams Printing Comfaht Independent Pressroom ^^^SSTSS^ PREFACE TO NINTH EDITION Since the issue of the eighth edition of this Avork, in 1880, the accumulation of important rulings bearing on it has required its careful revision. In carrying out this revision I have condensed the text as far as I could, but I have found it necessary, nevertheless, materially to increase the bulk of the volume. In the notes will be found references to more than three thousand cases not included in the prior edition. F.W. Washington, Jan. 1889. PREFACE TO TENTH EDITION In preparing a new edition of this work, in addition to the collection and insertion of later authorities and illus- trative notes, it was deemed advisable to extend the scope of the work in some regards, and especially by including a full treatment of the requisites and sufi&ciency of indict- ments and informations for the various specific crimes and offenses. In carrying out this plan the chapters com- prised within the work have been necessarily increased from twenty-one to one hundred, and almost one thou- sand new sections have been added. The number of cases cited has been more than quadrupled. The new matter on Specific Crimes, — which ends with page 1708, — ^is thought in and of itself to justify this new edition. While it has been sought to bring out every point that has been adjudicated, and collect the cases, it must be borne in mind that most of the rulings cited, and a large proportion of the conflict pointed out, are due to statutory provisions in the various jurisdictions. The statute under which any particular decision was made should be carefully collated with the statute under which it is sought to be applied. Jambs M. Kebb. Los AngeijES, Cal., May 15, 1918. CONSPECTUS CHAPTEE L APPREHENSION IN GENEEAD. Sectwn Introductory — "Apprehension" and "arrest".. ; 1 Same — Distinction sanctioned by good usage 2 Same — ^Doctrine of the decisions 3 Same — Law text-writers 4 Derivation of the words — Etymological distinctions 5 Same — Apprehend 6 Same — Arrest 7 Same — Another ground of distinction 8 Same — Difference of ultimate meaning, similarity of use 9 CHAPTER II. APPREHENSION — PRIVILEGE PROM ARREST. Generally 10 Parties and witnesses — ^Resident 11 Same — Nonresident 12 Judges, attorneys and jurors in case 13 Attendance on federal court 14 Ambassadors 15 Army officers, and soldiers 16 Consuls 17 Members of congress and of legislatures 18 OflScers and employees of the government 19 Defendants and witnesses in criminal cases 20 CHAPTEE III. APPREHENSION — ACTS AND PACTS C0NSTITUTIN8. Introductory 21 Corporal control and notice are essential 22 Notice may be given by implication 23 CHAPTEE rv. APPREHENSION — WARRANTS FOR. Criminal procedure usually commences with oath before magistrate. . . 24 Officer may be described by office 25 Form and sufficiency of warrant 26 V VI CONSPECTUS. Section Same — Blank warrants 27 Same — "John Doe" warrants 28 Same — Defective warrants 20 Manner of executing warrant 30 CHAPTER V. APPREHENSION BY OFFICER — WITH WARRANT. Officer not protected by illegal warrant 31 Warrant omitting essentials is illegal 32 Not necessary for officer to show warrant 33 CHAPTER VI. APPREHENSION BY OrFICER — WITHOUT WARRANT. When peace officer may act without warrant 34 Offenses in presence of officer 35 Apprehension for past offenses 36 Apprehension for past misdemeanors 37 Beasonable suspicion conyertible with probable cause 38 CHAPTER VII. APPREHENSION BY PERSONS NOT OFWCEBS. 1. Acting on Own Initiative. Apprehension for a misdemeanor 39 Apprehension for a felony 40 S. Persons Called hy Olficers, Pursuers, Etc. Peace officer may require aid from private persons ..." 41 Officers may have special assistants 42 Pursuers of felon are protected. 43 S. Power of Private Persons as to Apprehensions. Private person may interfere on probable cause 44 Force may be used such as is necessary to prevent perpetration of felony 45 May apprehend convicted felon after escape 46 4. Prevention of Offenses. May interfere to prevent riot 47 ' And so as to other offenses 48 CHAPTER VIII. APPREHENSION — BREAKING DOOES, AND SEARCH-WARRANTS. 1. Eight to Search in General. House may be broken open to execute warrant in felony offenses, etc. . . 49 CONSPECTUS. TH S. Its Exercise hy Private Persons. Section In felonies this may be done by even private person without warrant. . . 50 S. Its Exercise by Constables or Peace OHicers. Peace oflScer may on reasonable suspicion break open doors without warrant 51 4. What Is "Suspicion." Private person requires stronger grounds for interference C3 5. Search-Warrants — Their Issuance and Eifect. Nature and function 53 Search-warrant to be issued on oath 54 House of third person may be broken open to secure oifender or stolen goods 55 Keys ought to be first demanded 5G Warrant must be strictly followed 57 6. Constitutionality of Search-Warrants. Search-warrants limited by constitution 58 7. Illegality of Apprehension as Ground for Release. That arrest was illegal is irrelevant on the issue of guilt 59 CHAPTER IX. EXTRADITION — ^AS BETWEEN THE SEVEEAL UNITED STATES. In general 60 Under federal constitution and statute fugitives may be apprehended when fleeing from state to state , 61 Apprehension may be had in anticipation of requisition 62 Sufficient if offense is penal in demanding state 63 Requisition must be duly proved, and lies for fugitives only 64 Federal courts can not compel governor to surrender. 65 No objection that fugitive is amenable to asylum state 66 Governor of asylum state can not impeach requisition 67 Ordinarily issues warrant of apprehension 68 Habeas corpus can not go behind warrant 69 Bail not to be taken 70 Indictment or affidavit must set forth a crime, and must be in course of judicial proceedings 71 Fugitive may be tried for other than requisition offense 72 Officers executing such process protected by federal courts 73 For federal offenses warrants may be issued in all districts 74 State has no power of international extradition 75 CHAPTER X. EXTRADITION — AS BETWEEN THE FEDERAL GOVERNMENT AND FOREIGN STATES. Limited to treaty : 76 VIU CONSPECTUS. Section Offense must be one recognized by asylum state 77 Treaties are retrospective 78 Extradition refused when there can be no fair trial 79 And so for political offenses 80 And so for persons escaping from military service 81 But not because the person demanded is a subject of the asylum state 82 Where asylum state has jurisdiction there should be no surrender. 83 Conflict of opinion as to whether a foreign state can claim a subject who has committed a crime in a third state 84 Extradition does not lie for a case not included in a treaty 85 Nor where the defendant is in custody for another offense 86 Trial for offense different from that for which extradited 87 Courts may hear case before mandate 88 Complaint and warrant should be special 89 Warrant may be returnable to commissioner 90 Evidence should be duly authenticated 91 Terms to be construed as in asylum state 92 Evidence must show probable cause 93 Evidence may be heard from defense 94 Circuit court has power of review 95 Einal surrender by executive — ^Discretion of executive 96 CHAPTER XL TAKING MONET AND PEOPBETT JHOM PBISONEE. In general 97 Proofs of crime may be taken from person 98 But not money, unless connected with the offense 99 CHAPTEE XIL TAKING PHOTOGEAPHS AND MEASTJEBMENTS — HANDCUPPINQ. Taking photographs and BertiUon measurements 100 Arrest on suspicion of crime, or indictment for crime 101 Eight to handcuff prisoner 102 CHAPTEE Xni. DISPOSITION OF PEESON APPEEHENDED. In general ^03 Apprehension on warrant 104 Apprehension without warrant 105 OfScei before whom prisoner may be taken 106 CONSPECTUS. m CHAPTER Xrv. APPREHENSION AND SXTERBNDBB BY BAIL. SeoUon Bail may apprehend and surrender principal — At common law 107 Under statute 108 When and where right may be exercised 109 How right of apprehension may be exercised 110 CHAPTER XV. HEARING BEFORE MAGISTRATE. 1. Commitment for Future M earing. Waiver — Hearing may be adjourned from time to time Ill S. Evidence Reqwisite. Practice not usually to hear witnesses for defense 112 Exception in case of identity, or of one-sidedness in prosecutor's case. . 113 Probable cause, only, need be shown 114 5. Final Commitment and Binding Over. At common law, bail to be taken in all but capital cases 115 Excessive bail not to be required 116 Proper course to require such bail as will secure attendance 117 After continuance, bail may be granted 118 And so in ease of sickness 119 Bail to keep the peace may be required 120 Criminals. 4. Vagrants, Disorderly Persons, and Professional Criminals. Magistrates have power to hold vagrants, etc., to bail 121 5. Bail After Habeas Corpus. On habeas corpus, court may adjust bail 122 6. Bail After Verdict or After QuasMng. In exceptional cases, bail may be permitted after verdict 123 After quashing, bail may be refused 124 Courts. 7. Summary Trial and Punishment hy Military Courts. Authority of "military courts" to try and punish 125 CHAPTER XVI. FORM OF INDICTMENT — GENERALLY. I. INDICTMENT AS DISTINGUISHED PROM INFORMATION. Under federal constitution, trials for capital or infamous crimes must be by indictment 126 X CONSPECTUS. Section Presentment is an accusation by grand jury, on wWch indictment may be based 127 Information is ex-officio procedure by attorney -general 128 Is not usually permitted as to infamous crimes 129 ' ' Infamous ' ' crimes are such as involve disgrace or expose to peniten- tiary , 130 II. Statutes of Jbopails and Amendment. By statutes, formal mistakes may be amended, and formal averments made unnecessary 131 ■ Various particulars as to amendments 132 III. Caption and Commencement. Caption is no part of the indictment, being an explanatory prefix... 133 Substantial accuracy only required 134 Caption may be amended 135 Commencement must aver oflice and place of grand jurors, and also their oath 136 Each count must contain averment of oath 137 IV. Name and Addition op Defendant and Name of Pbosecutob AND Third Party. 1. As to Defendant. Name of defendant should be specifically given 138 Omission of surname is fatal 139 Mistake as to either surname or Christian name may be met in abate- ment 140 Surname may be laid as an alias 141 Inhabitants of parish and corporation 142 Middle name to be given when essential 143 Initials suflScient when used by party himself 144 Party can not dispute a name accepted by him 145 Unknown party may be approximately described 146 At common law addition is necessary 147 Wrong addition to be met by plea in abatement 148 Defendant's residence must be given 149 "Junior" must be alleged when party is known as such 150 2. Description of Parties Injured and Third Parties. Name only of third person may be given 151 Corporate title must be special 152 Third persons may be described as ' ' unknown " 153 But this allegation may be traversed 154 The test is whether the name was unknown to the grand jury. . . . 155 Immaterial misnomer may be rejected as surplusage 156 Sufficient if description be substantially correct 157 Variance in third party 's name is fatal ] oS Name may be given by initials 159 CONSPECTUS. XI Section Representative name is sufficient 160 Idem sonans is sufficient 161 V. Time : Necessity fob Alleging and How Averred. Time must be averred, but not generally material 162 When "Sunday" is the essence of the offense, the day must be specified 163 "Videlicet" may introduce a date tentatively 164 Blank as to date is fatal 165 Substantial accuracy is enough 166 Double or obscure dates are inadequate 167 Date can not be laid between two distinct periods 168 Negligences should have time averred 169 Time may be designated by historical epoch 170 * Eecitals of time need not be accurate 171 • Hour not necessary, unless required by statute 172 . Eepetition may be by " then and there " 173 Other terms insufficient 174 ' ' Then and there ' ' can not cure ambiguity 175 Repugnant, future, or impossible dates are bad 176 ' Record dates must be accurate 1 77 Dates of documents must be correctly given 178 Time should be within limitation 179 In homicide, death should occur within a year and a day 180 VI. Place. Enough to lay venue within jurisdiction of court 181 When act is by agent, principal to be charged as of place of such act. . 182 When county is divided, jurisdiction to be laid in court of locus delicti. 183 When county includes several jurisdictions, particular jurisdiction must be specified 184 Name of state not necessary in indictment 185 Sub-description in transitory offenses immaterial 186 But not as to matters of local description 187 "County aforesaid" generally enough — "Then and there" 188 Title, when changed by legislature, must be followed IS 9 Venue need not follow fine 190 In larceny, venue may be placed where goods are taken 191 Omission of venue is fatal 192 Offense must be set forth with reasonable certainty 193 VII. Statement op Oppense. Omission of essential incidents is fatal 194 Terms must be technically exact 195 Not enough to charge conclusion of law 196 Exceptions in case of "common barTfitors." "common scolds," and certain nuisances 197 Xn CONSPECTUS. Section Matters unknown may be proximately described 198 Bill of particulars may be required 199 Surplusage need not be stated; and if stated may be disregarded 200 Videlicet is the pointing out of an averment of probable specification. . 201 Assault may be sustained without specification of object 202 Attempt to commit an impossible crime 203 Act of one confederate may be averred as act of the other 204 Descriptive averment must be proved 205 Alternative statements are inadmissible 206 Disjunctive offenses in statute may be conjunctively stated 207 Otherwise as to distinct and substantive offenses 208 Intent, when necessary, must be averred 209 And so of guilty knowledge 210 Inducement and aggravation need not be detailed 211 Particularity required for identification and protection 212 Vm. Written Instruments. 1. Where the Instrument, as in Forgery, and Libel, Must Be Set Out in FuU. When words of document are material they should be set forth 213 In such case the indictment should claim to set forth the words . . . 214 "Purport" means effect; "tenor" means contents 215 "Manner and form," "purport and effect," "substance," do not imply verbal accuracy 216 Attaching original paper is not adequate 217 When exact copy is required, mere variance of a letter is immaterial. . . 218 Unnecessary documents need not be set forth 219 Quotation marks are not sufficient 220 Document lost, or in defendant's hands, need not be set forth 221 ■ And so of obscene libel 222 Prosecutor 's negligence does not alter the case 223 Production of document alleged to be " destroyed " is a fatal variance . 224 Extraneous parts of document need not be set forth 225 Foreign or insensible document must be explained by averments 226 Innuendo can interpret but not enlarge 227 2. Where the Instrument, as in Larceny, etc., May Be Described Merely by General Designation. Statutory designations must be followed 228 Though general designation is sufScient, yet if indictment purports to give words, variance is fatal 229 3. What General Legal Designation WUl Suffice. If designation be erroneous, variance is fatal — "Purporting to be". . . 230 "Eeceipt" includes all signed admissions of payment 231 ' ' Acquittance ' ' includes discharges from duty 232 "Bill of exchange" to be used in its technical sense 233 "Promissory note" used in a larger sense 234 CONSPECTUS. xin Section ' ' Bank note ' ' includes notes issued by banks 235 Treasury note and United States currency 236 ' ' Money ' ' is convertible with currency 237 "Goods and chattels" includes personalty, exclusive of choses in action 238 "Warrant" is an instrument calling for payment or delivery 239 "Order" implies mandatory power 240 "Request" includes mere invitation 241 Terms mays be used cumulatively 242 Defects may be explained by averments 243 A "deed" must be in writing under seal passing a right — "Bonds". . 244 "Obligation" is an unilateral engagement , 245 And so is " undertaking " 246 A "guarantee" and an I. O. U. are undertakings 247 ' ' Property' ' is whatever may be appropriated 248 "Piece of paper" is subject of larceny 249 to fight need not be set forth 250 IX. WoKDS Spoken. Words spoken must be set forth exactly, though substantial proof is enough 251 In treason enough to set forth substance 252 X. Personal Chattels. 1. In General. Scope of treatment 253 2. Indefinite, Insensible, or Lumping Descriptions. Personal chattels, when subject to an offense, must be specifically de- scribed 254 When notes are stolen in a bunch, denominations may be proximately given 255 Certainty must be such as to individuate offense 256 ' ' Dead ' ' animals must be averred to be such — ' ' Living ' ' animals must be intelligently described 257 When certain articles only of a class are subjects of indictment, then individuals must be described 258 Minerals and vegetables must be averred to be severed from realty. . . . 259 Variance in number or value immaterial e 260 Instrument of injury may be approximately stated 261 3. Value. Value must be assigned when larceny is charged 262 Larceny of "piece of paper" may be prosecuted 263 Value essential to restitution, and also to mark grades 264 Legal currency need not bo valued 265 When there is lumping valuation, conviction can not be had for stealing fraction 266 XIV CONSPECTUS. 4. Money and Coin. Section Money must be specifically described 267 When money is given to change, and change is kept, indictment can not aver stealing change 2G8 XI. Offenses Created by Statute. Usually sufficient and necessary to use words of statute 269 Conclusion of law not enough 270 Variance, if indictment proposes but fails to set forth statutory words. . 271 Special limitations to be given 272 Private statute must be given in full 273 Offense must be averred to be within limitation 274 Section or designation of statute need not be stated 275 Where statute requires two defendants one is not sufficient 276 When statute states object in plural, it may be pleaded in singular .... 277 Disjunctive statutory statements to be averred conjunctively 278 At common law defects in statutory indictments are not cured by verdict 279 Statutes creating an offense are to be closely followed 280 When common-law offense is made penal by title, details of offense must be given 281 When statute is cumulative, common law may be pursued 282 When statute assigns no penalty, punishment is at common law 283 Exhaustive statute absorbs common law 284 Statutory technical averments to be introduced 285 But equivalent terms may be given 286 Where a statute describes a class of animals by a general term, it is enough to use this term for the whole cla^s; otherwise not 287 Provisos and exceptions not part of definition need not be stated 288 i Otherwise when proviso is in same clause 289 Exceptions in enacting clause to be negatived 290 Question in such cases is whether statute creates a general or a limited offense 291 XII. Duplicity. Generally, joinder in one count of two distinct offenses is bad 292 Exception in cases where larceny is included in burglary or embez- zlement 293 And so where fornication is included in major offense 294 When major crime includes minor, conviction may be for either 295 "Assault" is included under "assault with intent" 296 On indictment for minor offense there can be conviction of minor, only . 297 May be conviction of misdemeanor on indictment for felony 298 But minor offense must be accurately stated 299 Not duplicity to couple successive statutory phases 300 Several articles can be joined in larceny 301 And so of cumulative overt acts and intents and agencies 302 CONSPECTUS. XV Section And so of double batteries, libels, or sales 303 Duplicity is usually cured by Terdict 304 XIII. Eepugnanct. Where material averments are repugnant, indictment is bad 305 Xrv. Technical Averments. In treason, "traitorously" must be used 306 ' ' Malice aforethought ' ' essential to murder 307 "Struck" usually essential to wound 308 "Feloniously" essential to felony 309 Word "feloniously" can be rejected as surplusage 310 In such case conviction may be had of attempt 311 "Ravish" and "forcibly" are essential to rape 312 "Falsely" essential to perjury 313 "Burglariously" essential to burglary 314 ' ' Take and carry away ' ' essential to larceny 315 "Violently and against the will" essential to robbery 316 "Piratical" essential to piracy 317 "Unlawfully," and other aggravating terms, not essential 318 "Forcibly" and "with a strong hand," essential to forcible entry. . . 319 " Vi et armis" not essential 320 "Knowingly" always prudent 321 XV. CiiEEiCAi, Eebobs. Verbal inaccuracies not affecting sense, not fatal 322 ' Questions as to abbreviations 323 Omission of formal words may not be fatal 324 Signs can not be substituted for words 325 Erasures and interlineations are not fatal 326 Tearing or defacing not necessarily fatal 327 Pencil vnriting may be sufficient 328 XVI. Conclusion or Indictments. Conclusion must conform to constitution or statute 329 Where statute creates or modifies an offense, conclusion should be statu- tory 330 Otherwise when statute does not modify offense 331 Such conclusion does not cure defect 332 Conclusion need not be in plural 333 Statutory conclusion may be rejected as surplusage 334 XVII. JOINDBE OF OrPENSES. Counts for offenses of the same character and the same mode of trial, may be joined 335 Assaults on two persons can be joined 336 So in conspiracy and assault 337 Common law and statutory offenses may be joined 338 XVI CONSPECTUS. Section And so of felony and misdemeanor 339 Cognate felonies may be joined 340 Successive grades may be joined , 341 Joinder of different offenses no ground for error 342 Election will not be compelled where offenses are connected 343 Object of election is to reduce to a single issue 344 Election at discretion of court 345 Election may be any time before verdict 346 Counts shoidd be varied to suit case 347 Two counts precisely alike defective 348 One bad count can not be aided by another 349 Counts may be transposed after verdict ; 350 XVIII. JoiNDBE or Defendants. 1. Who May Be Joined. Joint offenders can be jointly indicted 351 But not when offenses are several 352 So of officers with separate duties 353 Principals and accessories can be joined 354 In conspiracy at least two must be joined 355 In riot, three must be joined 356 Husband and wife may be joined 357 Misjoinder may be excepted to at any tin\e. 358 Death need not be suggested on record 359 2. Severance. Defendants may elect to sever 360 Severance should be granted when defenses clash 361 In conspiracy and riot, severance .' 362 3. Verdict and Judgment. Joint defendants may be convicted of different gradca 363 Defendants may be convicted severally 364 Sentence is to be several 365 Offense must be joint to justify joint verdict 366 XIX. Statute op Limitation. Construction to be liberal to defendant 367 Statute need not be specially pleaded 368 Indictment should aver offense within statute, or, if excluded by statute, should, by strict practice, aver facts of exception 369 Statute, unless general, operates on offenses it specifies, only 370 Statute is retrospective 371 Statute begins to run from commission of cryne — Continuous offenses. . 372 Indictment or information saves statute 373 In some jurisdictions statute saved by warrant or presentment 374 When flight suspends statute, it is not renewed by temporary return. . . 375 Tailure of defective indictment does not revive statute. 376 CONSPECTUS. XVII Section Courts look with disfavor at long delay in prosecution 377 Statute not suspended by fraud 378 Under statute, indictment unduly delayed may be discharged 379 Statutes have no extra-territorial effect 380 CHAPTER XVII. INDICTMENT — SPECIFIC CRIMES. Introductory, CHAPTEE XVin. INDICTMENT — SPECIFIC CEIMES. Abdiuition. In general 383 For purpose of compelling marriage. 383 For purpose of prostitution •. . . . i 384 For illicit sexual intercourse .' 38,5 Enticement to house of ill-fame 386 Joinder of counts and duplicity 387 CHAPTEE XIX. INDICTMENT — SPECIFIC CHIMES. Abortion. In general . . . .-. 388 Charging grade of crime ■ 389 Averments not required. . . ., -. ' 390 Name and manner of use of instrument 391 Pregnancy and quickening of woman ." 392 Malice : . 393 Negativing death t 394 Negativing statutory exceptions. ........; 395 Publishing information where abortion may be procured 396 Joinder of counts — ^Election 397 Duplicity v •• : 398 CHAPTER XX. INDICTMENT — SPECIFIC CBIMES. Adultery. In general ; 399 Following language of statute 400 Name and description of partioeps criminis '. . ... . . 401' Time and place 402- XVm CONSPECTUS. Section Not husband and wife 40c' Unueeessary allegation 404 Joinder of the parties 405 Joinder of offenses 406 Duplicity 407 CHAPTER XXI. INDICTMENT — SPECIHC CEIMES, Afray. Necessary arennents 408 Charging mutual assault also 409 CHAPTBE XXn. INDICTMENT SPECIFIC CRIMES. Arson. In general 410 Negativing exceptions 411 Definiteness and certainty 412 Surplusage and immaterial averments 413 Joinder and duplicity 414 Averment as to time 415 Averment of degree 416 Unnecessary averments 417 Intent and malice 418 Sufficiency of averment 419 Intent to injure or defraud 420 Description of building 421 Averments to show venue 422 Averments as to location 423 Averments as to value 424 Ownership — Necessity of averment as to 425 Sufficiency of averment as to 426 Of public building 427 Occupancy or possession — Necessity of averment as to 428 Burning 429 Attempt to commit arson , 430 CHAPTER XXIII. INDICTMENT — SPECIFIC CEIMES. Assault and Battery. Form, requisites and sufficiency in general 431 Allegation as to intent and malice 432 CONSPECTUS. XIX Section Allegation of present ability 433 Allegation of acts constituting the assault 434 Allegation of matter in aggravation 435 Description of person accused 436 Description of person assaulted 437 Allegation as to time 438 Allegation as to place 43!) Joinder of persons 440 CHAPTER XXIT. INDICTMENT — SPECIFIC CRIMES. Barratry. Requisites and sufficiency of indictment 441 Allegation' as to place 442 Bill 01 note of particulars 443 CHAPTER XXV. IKDICTMBNT — SPECIFIC CRIMES. Bastardy. Requisites and sufficiency of indictment 444 CHAPTER XXVI. INDICTMENT — SPECIFIC CBIMES. Bigamy. Requisites and sufficiency of indictment 445 Unnecessary allegations 446 Negativing exceptions in statute 447 Venue 448 CHAPTER XXVII. INDICTMENT — SPECIFIC CRIMES. Blasphemy. Form and sufficiency of indictment 449 CHAPTER XXVIII. INDICTMENT — SPECIFIC CRIMES. Bribery. Requisites and sufficiency of indictment 450 Unnecessary allegations 451 XX CONSPECTUS. Section Solicitation of bribe 452 Nature and value of bribe 453 Act to be done and authority to act 454 Joint indictment 455 Duplicity 456 CHAPTER XXIX. INDICTMENT — SPECIPIO CEIMBS. Eequisites and sufficiency in general 457 Charging in the language of the statute 458 Negativing exceptions 459 Degree of crime 460 Venue or place of commission 461 ■ Time of offense 462 Manner of commission, "burglariously," "feloniously," etc 463 Alleging want of consent 464 Attempt to commit the offense 465 Intent must be alleged 46(i Adultery 467 ■ Arson 468 Larceny 460 Eape 470 Description of property stolen or to be stolen — Ownership and value. . . 471 Breaking and entry — Necessity of alleging 472 Description of building — In general. . . * 473 Buildings within curtilage 474 — ■■ — Negativing adjacency to dwelling-house 475 Railroad car 476 -^ — Ofaees, shops, store-houses, warehouses, etc 477 OTCnership of premises — Necessity of allegation as to 478 Sufficiency of allegation 479 Joint ownership 480 Husband and wife. . . ., 481 Landlord and tenant 482 Rooms and apartments 483 —7— Corporation as owner 484 — — Partnership as owner 485 Decedent's estate 486 Occupancy of premises 487 Possession of burglar's tools 488 Joinder of burglary and subsidiary offense 489 Duplicity 490 Aihendment of indictment or information ! 491 Objection to indictment— Manner of making and waiver : . . . 492 CONSPECTUS. XXI CHAPTER XXX. INDICTMENT — SPECIFIC CHIMES. Champerty and Maintenance, ■ Seat%on In general 493 Indictment — At common law 494 Under statute 495 Conclusion 496 CHAPTER XXXI. INDICTMENT — SPECIFIC CEIMES. Chattels, Selling or Removing Mortgaged. In general — Venue 497 Selling mortgaged chattels. 498 Removing mortgaged chattels 499 Concealing mortgaged chattels 500 Description and value 501 Variance 502 CHAPTER XXXIL INDICTMENT — SPECIFIC CBIMES. Common Scold. In general 503 Form and suffioieucj of indictment 504 Anger and malice 505 Allegation of specific acts 506 Joinder of defendants 507 CHAPTER XXXin. INDICTMENT'-^SPECrFIC CBIME3. Criminal Conspiracy. In general — Charging the ofEense 508 Form and sufficiency of indictment. 509 Time of conspiracy. 510 Place of conspiracy , 511 Names of conspirators 512 — ■ — Aider of insufficient charge by other averments 513 Combination or confederacy of parties 514 Object or purpose of combination 515 Means to be employed to accomplish object 516 Knowledge and intent 517 Name of person intended to be injured 518 ygTT CONSPECTUS. Section Joinder of defendants 519 Joinder of counts 520 Same 520a Duplicity 521 Surplusage 522 Overt act — Common law rule 523 Under statute or court rule 524 Accomplishment and advantage 525 Spscific instances 526 Conspiracy to commit crime 527 Conspiracy to cheat and defraud generally 528 Conspiracy to defraud the government 529 Conspiracy to defraud the United States government 530 Conspiracy to injure person or reputation 531 Conspiracy to injure property or business 532 Conspiracy to blackmail and extort money 533 Conspiracy to interfere with civil rights 534 Conspiracy in restraint of trade or commerce 535 Conspiracy to impede due administration of laws or to obstruct justice 536 Conspiracy to boycott, control wages or workmen, strike, and the like ...i 537 CHAPTER XXXrV. INDICTMENT — SPECIFIC CBIMBS, Counterfeiting. In general 538 Joinder of defendants 539 Form and sufficiency of the indictment — In general 540 Following language of statute 541 Intent to defraud 542 Description of subject-matter of counterfeiting 543 Existence and incorporation of bank 544 Value 545 — I — Time and place 546 Current according to law, custom or usage 547 Joinder of counts 548 Duplicity, repugnancy and uncertainty 549 Having counterfeit money in possession 550 Passing counterfeit money 551 Bartering or selling counterfeit money 552 Making or having ih possession counterfeiting tools 55". CONSPECTUS. XXIU CHAPTER XXXV. INDICTMENT — SPEOIFIO CRIMES. Disorderly Conduct and Persons. Section Form and sufSeienoy of indictment 554 Abusive, indecent, offensive, or profane language 555 Discharging firearms near public highway 556 Eavesdropping 557 Night-walking 558 Place of offense 559 Public nuisance 560 Second and subsequent offenses S61 CHAPTEE XXXVI. INDICTMENT — SPECIFIC CRIMES. Disorderly Souses. In general 562 Form and sufficiency of indictment 563 Time 564 Place 565 Intent and knowledge 566 Leasing property for purposes of prostitution 567 Joinder of offenses — ^Duplicity 568 Joinder of defendants 569 CHAPTER XXXVIL INDICTMENT — SPECIFIC CRIMES. Disturbing Puilic Meetings. In general 570 Form and sufficiency of indictment 571 Existence and nature and kind of meeting 572 The disturbance — In general 573 Manner of disturbance 574 Place — Of disturbance 575 Of meeting 576 Intent, wilfulness and malice 577 Duplicity 678 CHAPTER XXXVm. mniOTMENT — SPECIFIC CRIMES. Duelling. In general 679 Indictment and its sufficiency 580 XXIV CONSPECTUS. Section The challenge 581 The venue 582 CHAPTEE XXXIX. INDICTMENT — SPECIFIC CRIMES. Embezzlement or Statutory Larceny. Form and sufficiency of indictment— In general 583 Certainty 584 Language of the statute 585 Particular averments — Fiduciary relation 586 Receipt of property by accused 587 Description of property, generally 588 Money, and its value 589 Corporate or public money 590' Value »t property or money 591 Ownership of property or money 592 Manner of conversion 593 Time of conversion 594 Place of conversion 595 Joinder 596 Duplicity and misjoinder 597 — \ — Continuing embezzlements '. 598 False pretenses and larceny 599 Election 600 CHAPTEE XL. ' INDICTMENT — SPECIFIC CBIMES. Emiracery. Form and sufficiency of indictment 601 Joinder of counts and consolidation of causes 602 CHAPTEE XLL INDICTMENT — SPECIFIC CEIMES. Escape. Form and sufficiency of indictment : 603 The escape 604 Attempt to escape 605 Aiding an4 abetting escape or attempt to. escape 606 . Negligent escape. .' , 607 Voluntary escape '. 607a CONSPECTUS. XXV CHAPTBE XLIL INDICTMENT — SPECIFIC CRIMES. Extortion. Section Form and sufficiency of indictment 608 Description of the offense 609 Allegation as to tlie service 610 Allegation as to the office 611 Allegation as to person and ownership of the money 612 Allegation as to fees 613 Allegation as to knowledge 614 Allegation as to intent 615 Attempt to commit extortion 616 Joinder of causes 617 Joinder of defendants 618 CHAPTEE XLITL INDICTMENT — SPECIFIC CRIMES. False Imprisonment. Form and sufficiency of indictment 619 CHAPTEE XLIV. INDICTMENT — SPECIFIC CRIMES. False Personation. Form and sufficiency of indictment '..'.: 620 Allegation as to relationship between parties 621 Allegations as to property 622 Impersonating another — Acknowledgments, judicial proceedings 623 Impersonating an officer , 624 CHAPTEE XLY. INDICTMENT — SPECIFIC CRIMES. False Pretenses. Form and sufficiency of indictment — In general 625 Language of the statute 626 Negation of pretenses 627 Surplusage ; 628 Necessary averments — False pretenses and knowledge thereof . . . ; 629 Intent and design 630 "Feloniously" » 631 Parties — By whom made 632 To whom made and who defrauded 633 XXVI CONSPECTUS. Section The false pretenses, false tokens, etc. — In general 634 Description of the particular pretenses 635 Confidence game and bunko steering 636 Description of the false token 637 Representations as to financial condition 638 Eelatiou to past events or existing state of facts 639 Eeliance on pretenses 640 Eepresentations as inducing cause 641 Damage to or loss by prosecutor 642 Property, etc., obtained — ^Description of 643 Money, bank-bills, etc 644 Written instniments .' 645 Ownership of money or property 646 Value of money or property 647 False pretense of being an officer 648 Presenting false claim 649 Joinder of defendants 650 Joinder of offenses 651 Joinder of counts 652 CHAPTEE XL VI. INDICTMENT — SPECinC CHIMBS. Fellatio and Cunnilingus. Form and sufficiency of indictment 653 CHAPTBB XLVn. INDICTMENT — SPECIFIC CRIMES. Forgery. Form and sufSciency of indictment — In general 654 Following language of statute 655 Having forged instrument in possession 656 — — Uttering forged instrument 657 Necessary averments — ^Making — In general 65S Time of the offense 650 Name of defendant 660 Name of person to be defrauded 6G1 Fictitious name signed 662 Thing prohibited — Value 663 Manner and means of forgery 664 Lack of authority CG5 Guilty knowledge of accused 666 Intent to defraud — In general 667 Person intended to be defrauded 668 CONSPECTUS. XXVII Section General intent to defraud 669 ■ Altering genuine instrument 670 Falsification of record or of entries therein 671 Unnecessary averments — In general 672 Facts assumed in forged instrument 673 Value need not usually be averred 674 Name of person to whom forged instrument uttered or passed . . . 675 Description of instrument — In general 676 Copy, tenor or facsimile of instrument 677 Purport of instrument : . . . . 678 Effect of videlicet clause 679 Ambiguity and repugnancy — In general 680 In names of persons 681 In names of corporations 682 Designating instrument by name 683 Instrument in foreign language 684 Lost, destroyed, or withheld instrument 685 Indorsements 686 Marginal devices, words and figures, etc 687 Facts extrinsic to instrument — In general 688 When to be alleged and sufiScieney of averments 689 Explanation of instrument 690 Explanation of defective expressions 691 Joinder— Of defendant ; 692 Of offenses — ^Distinct crimes 693 Act or steps in the offense 694 Of counts 695 Duplicity 696 Eemedies for misjoinder 697 CHAPTES XLVm. INDICTMENT — SPECIFIC CRIMES. Fornication. Form and sufBeiency of indictment C98 Particular allegations — As to marriage 699 As to time 700 As to guilty intent 701 Living together — Cohabitation 702 Description of parties 703 Joinder of offenses '. 704 Joinder of parties 705 Joinder of counts 706 Duplicity and election 707 TABLE OF SECTIONS Showing where in this edition the sections in the ninth and previous editions are to be found. Present Ninth Present Ninth Present Ninth Edition Edition Edition Edition Edition Edition 1 . . . . — 31... 5 61 ... 28 2 . . . . — 32... 6 62 ... 29 3 . . . . — 33... 7 63 ... 30 4 .. . . — 34... .... 8, part 64 ... 31 5 — 35... 8, part 65. ... 32 6 — 36... 8, part 66 ... 33 7 — 37... .... 8, part 67 ... 34 8 — • 38... 9 68 ... 34a 9 .... — 39... — 69 ... 35 10 . . . . — 40... — 70 ... 35a 11 .... — 41... 10 71 ... 36 12 — 42... 11 72;.... ... 37 13 .... — 43 12 73 74 37a 14 44... 13 ... 37b 15 . . 59, part 45... 14 75 ... 37c 16 .... — 46... 15 76 ... 38 17 . . 59, part 47... 16 77 ... 39 18 — 48... 17 78 ... 40 19 . . 59, part 49... 18 79 ... 41 20 .... — 50... 19 80 ... 42 21 .... — 51... 20 81 ... 43 22 .... 3 52... 21 82 ... 44 23 .... 4 53... — 83 ... 45 24 .... 1 54... 22 84..... ... 46 25 .... 2 55... 23 85 ... 47 26 — 56... 24 86 ... 48 27 — 57... 25 87 ... 49 28 .... — 58... ...... 26 88 ... 50 29 .... — 59... 27 89 ... 51 30 .... — 60... XXIX 90..... ... 52 XXX Present Ninth Edition Edition 91 53 92 54 93 ' 55 94 56 95 57 96 58 97 — 98 60 99 61 100 — 101 — 102 — 103 — 104 — 105 — 107 62, part 108 — 109 62, part 110 — 111 70 112 71 113 72 114 73 115 74 116 75 117 76 118 77 119 78 120 79 121 80 122 81 123 82 124 83 125 — 126 85 127 86 128 87 129 88 TABLE OF SECTIONS. Present Ninth Edition Edition 130 89 131 90 132 — 133 91 134 92 135 93 136 94 137 95 138 96 139 97 140 98 141 99 142 100 143 101 144 102 145 103 146 104 147 105 148 106 149 107 150 108 151 109 152 110 153 Ill 154 112 155 113 156 114 157 115 158 116 159 117 160 118 161 119 162 120 163 121 164 122 165 123 166 124 167 125 Present Ninth Edition Edition 168 126 169 127 170 128 171 129 172 130 173 131 174 132 175 133 176 134 177 135 178 136 179 137 180 138 181 139 182 140 183 141 184 142 185 143 186 144 187 145 188 146 189 147 190 148 191 149 192 150 193 151 194 152 195 153 196 154 197 155 198 156 199 157 200.. 158 201 158a 202 159 203 — 204 159a 205 160 Present NintJi Mdition Edition 206 161 207 162 208 163 209 163a 210 164 211 165 212 166 213 167 214 168 215 169 216 170 217 171 218 173 219 174 220 175 221 176 222 177 223 178 224. 179 225 180 226 181 227 181a 228 182 229 183 230 184 231 185 232 186 233 187 234 188 235 189 236 189a 237 190 238 191 239 192 240 193 241 194 242 195 243 196 TABLE OF SECTIONS. Present Ninth Edition Edition 244 197 245 198 246 199 247 200 248 201 249 202 250 202a 251 203 252 204 253 205 254 206 255 207 256 208 257 209 258 210 259 211 260 212 261 212a 262 213 263 214 264 235 265 216 266 217 267 218 268 219 269 220 270 221 271 222 272 223 273 224 274 225 275 226 276 227 277 227a 278 228 279 229 280 230 281 231 XXXI Present Ninth Edition Edition 282 232 283 233 284 234 285 235 286 236 287 237 288 238 289 239 290 240 291 241 292 243 293 244 294 245 295 246 296 247 297 248 298 249 299 250 300 251 301 252 302 253 303 254 304. 255 305 256 306 257 307 258 308 259 309 260 310 261 311 262 312 263 313 264 314 265 315 266 316 267 317 268 318 269 319 270 xxxn Present Ninth Edition Edition 320 271 321 272 322 273 323 274 324 275 325 276 326 277 327 278 328 278a 329 279 330 280 331 281 332 282 333 283 334 284 ' 335 285 336 286 337 287 338 288 339 289 340 290 341 291 342 292 343 293 344 294 345 295 346 296 347 297 348 298 349 299 350 300 351 301 352 302 353 303 354 304 355 305 356 306 357 306a TABLE OF SECTIONS. Present Ninth Edition Edition 358 307 359 308 360 309 361 310 362 311 363 312 364 313 365 314 366 315 367 316 368 317 369 318 370.. 319 371 320 372 321 373 322 374 323 375 324 376 325 377 326 378 327 379 328 380 329 381 - 382 g- 383 » 384 I 385i f- 386 g 387 § 388 ^ 389 S' 390 S". 391 » 392 g.; 393 g' 394........ ■^ 395 Present Ninth Edition Edition 396 ^ 397 ^ 398 S 399 I 400 |- 401. g 402 g 403 ^ 404 S" 405 b: 406 " 407 s? 408 g 409 -^ 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 Present Ninth Edition Edition 434 ^;^ 435 g- 436 ^ 437 I 438 I 439 g 440 B 441 =^ 442 S' 443 K 444 CB 445 S? 446 §' 447 ■^ 448........ 449 450:....... 451 452 453 454 455 456 457 458 , 459... 460 461 462 463 464 465 466 467 468 469 470 471 TABLE OP SECTIONS. Present Ninth Edition Edition 472 r-^ 473 g- 474 g 475 I 476 |. 477 g 478 g 479 ^ 480 5' 481 E 482 " Pj 483 g; 484 §■ 485 '^ 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 XXXIII Present Ninth Edition Edition 510 -^^ 511 r 512 S 513 I 514 ^• 515 g 516 g 517 ^ 518 P' 519 b: 09 520 o 521 ^: 522 § 523 '^ 524 525 526 527 528 529 530 531 532 533 534 535 536 537 ;.. 538 539 540 541 542 543 544 545 546 547 XXXIV Present Ninth Edition Edition 548 ^ 549 g- 550 a, 551 S 552 g- OUO ;j3 554 g 555 ^ 556 P 557 E 558 n> 559 I? 560 § 561 "^ 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 TABLE OF SECTIONS. Present Ninth Edition Edition 586 -^i 587 r 588 S 589 I 590 g-- 591 g 592 g 593 ^ 594 P' 595 &: 596 tD 597 S-- 598 g 599 -^ 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 Present Ninth Edition Edition 624 — 625 g- 626 ^ 627 I 628 |- 629 g 630 g 631 ^ 632 B" 633 5: 634 " 635 g; 636 g 637 "^ 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 Present Ninth Edition Edition 662 ^ 663 g- 664 CD 665 g 666 g-- 667 « 668 g 669 2 670 S" 671 b: 672 CD 673 g: 674 I' 675 •^ 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 TABLE OF SECTIONS. Present Ninth Edition Edition 700 ^ 701 g- 702 g 703 I 704 |. 705 g 706 g 707 ^ 708 S' 709 K 710 CD 711 ^■ 712 g 713 "^ 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 XXXV Present Ninth Edition Edition 738 ^ 739 g- 740 S 741 I 742 g-- 743 g 744 g 745 ^ 746 S' 747 s: 748 CD 749 ^■ 750 i' 751 •^ 752 753 754 755 756 757 758........ 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 XXXVI Present Nintli Edition Edition 776 ^ 777 g- 778 S 779 I 780 ^• 781 g 782 g 783 ^ 784 ^" 785 B". m 786 rt. 787 ^ 788 § 789 ■^ 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809 810 81] 812 813 TABLE OF SECTIONS. Present Ninth Edition Edition 81* ^ 815 r 816 S 817 I 818 g-- 819 g 820 g 821 ^ 822 B' 823 &:■ 824 a, 825 |- 826 g 827 '^ 828 829 830 831 832 833 834 835 836 837 838 839 840 841 842........ 843 844 845 846 847 848 849 850 851 Present Ninth Edition Edition 852 r-^ 853 g- 854 S 855 I 856 g-- 857 g 858 g 859 ^ 860 ^' 861 |: 862 a, 863 S? 864 g 865 '^ 866 867 868 869 870 871 872 873 874 875 876 877 878 879 880 881 882 883 884 885 886 887 888 889 Present Ninth Edition Edition 890 -^i 891 g- 892 " 893 I 894 g-- 895 g 896 g 897 ^ 898 ^' 899 , E 900 S 901 , |: 902 g 903 " 90-4 905 , 906 , 907 908 ,. 909 910 911 912 913 914 915 916 917 918 919 920 921 922 923 924 925 926 927 TABLE OF SECTIONS. Present Ninth Edition Edition 928 ';- 929 ^ 930 g 931 I 932 |. 933 g 934 g 935 ^ 936 B" 937 B". 938 % 939 s? 940 g 94] "^ 942 943 944 945 946 947 948 949 950 951 952 953 954 955 956 957 958 959 960 961 962; 963 964 965 XXXVII Present Ninth Edition Edition 966 -- 967 ^ 968 i 969 I 970 |. 971 i 972 g 973 ^ 974 B" 975 E 976 » 977 S;. 978 I' 979 -^ 980 981 982 983 ,.. 984 985 986 987 988 989 990 991 992 993 994 995 990 997 993 999 1000 1001 1002 1003 xxxvm Present Ninth Edition Edition 1004 " 1005 g- 1006 g 1007 I 1008 |- 1009 g 1010 g 1011 ^ 1012 5' 1013 E 1014 " 1015 ^ 1016 g 1017 '^ 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 TABLE OP SECTIONS. Present Ninth Edition Edition 1042 ^ 1043 g- 1044 o 1045 I 1046 ^• 1047 g 1048 g 1049 ^ 1050 ^' 1051 |: 1052 " 1053 S? 1054 g 1055 '^ 1056 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 Present Ninth Edition Edition 1080 — 1081 ^ 1082 " 1083 I 1084 I 1085 g 1086 g 1087 ^ 1088 P" 1089 Ht 1090 % 1091 s? 1092 g" 1093 -^ 1094 1095 1096 1097 1098 1099 1100 1101 1102 1103 1104 1105 1106 1107 1108 1109 1110 nil 1112 1113 1114 1115 1116 1117 Present Ninth Edition Edition 1118 -^ 1119 g- 1120 " 1121 I 1122 5- 1123 g 1124 g 1125 2 1126 ^' 1127 f. 1128 » 1129 S: 1130 i' 1131 "^ 1132 1133 1134 1135 1136 1137 1138 1139 1140 1141 1142 1143 1144 1145 1146 1147 1148 1149 1150 1151 1152 1153 1154 1155 TABLE OF SECTIONS. Present Ninth Edition Edition 1156 ^ 1157 ^ 1158 i 1159 I 1160 |. 1161 i 1162 P 1163 ^ 1164 S' 1165 b: 1166 " 1167 S? 1168 §■ 1169 ■^ 1170 1171 1172 1173 1174 1175 1176 1177 1178 1179 1180 1181 1182 1183 1184 1185 1186 1187 1188 1189 1190 1191 1192 1193 XXXIX Present Ninth Edition Edition 1194 Ti 1195 g- 1196 " 1197 g 1198 g- 1199 g 1200 g 1201 ^ 1202 S" 1203 ^. 1204 " 1205 s? 1206 p 1207 " 1208 1209 1210 1211 1212. 1213 1214 1215 1216 1217 1218 1219 1220 1221 1222 1223 1224 1225 1226 1227 1228 1229 1230 1231 Present Ninth Edition Edition 1232 -^^ 1233 g- 1234 S 1235 I 1236 §■• 1237.. g 1238 P 1239 ^ 1240 P' 1241 ^. 1242 » 1243 I? 1244 g 1245 ■^ 1246 1247 1248 1249 1250....... 1251 1252 1253 1254 1255 1256 1257 1258 332 1259 333 1260 334 1261 335 1262 336 1263 337 1264 338 1265 339 1266 340 1267 341 1268 342 1269 343 TABLE OF SECTIONS. Present Ninth Edition Edition 1270 343a 1271 344 1272 345 1273 346 1274 347 1275 348 1276 349 1277 350 1278 351 1279 352 1280 353 .1281 354 1282 355 1283 356 1284 357 1285 358 1286 358a 1287 359 : 1288 360 : 1289.. 361 : 1290 362 : 1291 363 1292 364 ! 1293 365 ; 1294 366 i 1295 367 • 1296 368 1297....... 369 1298 370 .1299 371 1300 372 1301 373 1302 374 ' 1303 375 ' 1304 376 1305 377 1306 378 1307 379 Present Ninth Edition Edition 1308 380 1309 381 1310 383 1311 384 1312....... 385 1313 386 1314 387 1315 388 1316 389 1317 390 1318 391 1319 391a 1320 392 1321 ....... 393 1322 394 1323 395 1324. ...... 396 1325 397 1326....... -100 1327. 401 1328-.. 402 1329 403 1330-. 404 1331 405 1332. 406 1333 ....... 407 1334 407a 1335 407b 1336.. 408 1337'.. 409 1338 410 1339 411 1340 412 1341 413 1342 414 1343. 415 1344 416 1345' 417 Present Ninth Edition Edition 1346. • 418 1347 419 1348 420 1349 421 1350 422 1351 423 1352 424 1353 425 1354 426 1355 427 1356 428 1357 429 1358 429a 1359 430 1360 431 1361 432 1362 433 1363 434 1364 435 1365 435a 1366 436 1367 437 1368 438 1369 439 1370 440 1371 441 1372 442 1373 443 1374 444 1375 445 1376 446 1377 447 1378 448 1379 449 1380 450 1381 451 1382 452 1383 453 TABLE OF SECTIONS. Present Ninth Edition Edition 1384 454 1385 455 1386 455a 1387 456 1388 457 1389 458 1390 459 1391 460 1392 461 1393 462 1394 463 1395 464 1396 465 1397 466 1398 467 1399 468, part 1400.... 468, part 1401.... 468, part 1402 468, part 1403 468, part 1404 469 1405 469a 1406 470 1407 471 1408 472 1409 473 1410 474 1411 475 1412 476 1413 477 1414 478 1415 479 1416 480 1417 481 1418 482 1419 483 1420 484 1421 485 XLI Present Ninth Edition Edition 1422 486 1423 487 1424 488 1425 489 1426 490 1427 491 1428 492 1429 493 1430 494 1431 495 1432 496 1433 497 1434 498 1435 499 1436 500 1437 501 1438 502 1439 503 1440 504 1441 505 1442. 506 1443 506a 1444 507 1445 508 1446 509 1447 510 1448 511 1449 512 1450 513 1451 514 1452 515 1453 516 1454 517 1455 518 1456 519 1457 520 1458 521 1459 522 Present Ninth Edition Edition 1460 523 1461 524 1462 525 1463 526 1464 527 1465 528 1466 529 1467 530 1468 531 1469 532 1470 533 1471 534 1472 535 1473 536 1474 537 1475 540 1476 540a 1477 541 1478 542 1479 543 1480 544 1481 545 1482 546 1483 547 1484 548 1485 549 1486 550 1487 551 1488 554 1489 555 1490 556 1491 — 1492 557 1493 558 1494 559 1495 560 1496 561 1497 562 TABLE OP SECTIONS. Present Ninth Edition Edition 1498 563 1499 564 1500 565 1501 565a 1502 566 1503 567 1504 568 1505 569 1506 570 1507 571 1508 572 1509 573 1510 574 1511 575 1512 576 1513 577 1514 578 1515 579 1516 583 1517 584 1518 585 1519 586 1520 587 1521 588 1522 589 1523 590 1524 591 1525 592 1526 593 1527 594 1528 595 1529 596 1530 597 1531 598 1532 598a 1533 599 1534 599a 1535 600 Present Ninth Edition Edition 1536 601 1537 602 1538 605 1539 606 1540 607 1541 608 1542 609 1543 610 1544 611 1545 — 1546 612 1547 613 1548 614 1549 614a 1550 615 1551 616 1552 617 1553 618 1554 619 1555 620 1556 621 1557 622 1558 623 1559 624 1560 625 1561 626 1562 627 1563 628 1564 629 1565 630 1566 631 1567 632 1568 633 1569 634 1570 635 1571 636 1572 637 1573 638 Present Ninth Edition Edition 1574 639 1575 640 1576 641 1577 642 1578 643 1579 644 1580 645 1581 646 1582 647 1583 648 1584 649 1585 650 1586 651 1587 652 1588 653 1589 654 1590 655 1591 656 1592 657 1593 658 1594 659 1595 660 1596 661 1597 661a 1598 662 1599 663 1600 664 1601 665 1602 666 1603 667 1604 668 1605 669 1606 670 1607 671 1608 672 1609 673 1610 674 1611 675 TABLE OF SECTIONS. Present Ninth Edition Edition 1612 676 1613 677 1614 678 1615 679 1616 680 1617 681 1618 682 1619 683 1620 684 1621 685 1622 686 1623 687 1624 688 1625 689 1626 690 1627 692 1628 693 1629 694 1630 695 1631 696 1632 697 1633 698 1634 699 1635 700 1636 701 .1637 702 1638 703 1639 704 1640 705 1641 706 1642 707 1643 708 1644 709 1645 710 1646 711 1647 712 1648 713 1649 714 XLIII Present Ninth Edition Edition 1650 715 1651 716 1652 717 1653 718 1654 719 1655 720 1656 721 1657 722 1658 723 1659 724 1660 725 1661 726 1662 727 1663 728 1664 729 1665 730 1666 731 1667 732 1668 733 1669 736 1670 737 1671 738 1672 739 1673 740 1674 741 1675 742 1676 743 , 1677 744 \ 1678 745 , 1679 746 '■ 1680 747 '. 1681 748 1682 749 1683 750 1684 751 1685 752 1686 753 1687 754 Present Ninth Edition Edition 1688 755 1689 756 1690 757 1691 758 1692 759 1693 760 1694 761 1695 762 1696 763 1697 764 1698 765 1699 766 1700 767 1701 768 1702 ,. 770 1703 '.. 770a 1704 771 1705 772 1706 773 1707 774 1708 774a 1709 775 1710 776 1711 , 777 1712 778 1713 779 1714 779a 1715 779b 1716 780 1717 781 1718 782 1719 783 1720 783a 1721 784 1722 785 1723 .786 1724 787 1725 788 TABLE OF SECTIONS. Present Ninth Edition Edition 1726 789 1727 790 1728 791 1729 792 1730 793 1731 794 1732 795 1733 796 1734 796a 1735 797 1736 798 1737 798a 1738 799 1739 800 1740 801 1741 802 1742 803 1743 804 1744 805 1745 806 1746 807 1747 808 1748 809 1749 810 1750 811 1751 812 1752 813 1753 814 1754 815 1755 816 1756 817 1757 818 1758 819 1759.; 820 1760 821 1761 822 1762 823 1763 824 Present Ninth Edition Edition 1764 825 1765 826 1766 827 1767 828 1768 829 1769 829a 1770 830 1771 831 1772 832 1773 833 1774 834 1775 835 1776 836 1777 837 1778 838 1779 839 1780 840 1781 841 1782 842 1783 843 1784 844 1785 845 1786 846 1787 847 1788 848 1789 849 1790 850 1791 851 1792 852 1793 853- 1794 854 1795 855 1796 856 1797 857 1798 858 1799 859 1800 860 1801 860a Present Ninth Edition Edition 1802 861 1803 862 1804 863 1805 864 1806 865 1807 866 1808 867 1809 868 1810 869 1811 870 1812 871 1813 872 1814 873 1815 874 1816 875 1817 876 1818 877 1819 878 1820 879 1821 880 1822 881 1823 882 1824 883 1825 884 1826 885 1827 886 1828 887 1829 888 1830 889 1831 890 1832 891 1833 892 1834 893 1835 894 1836 895 1837 896 1838 897 1839 898 TABLE OF SECTIONS. Present Ninth Edition Edition 1840 899 1841 900 1842 901 1843 902 1844 905 1845 906 1846 907 1847 908 1848 909 1849 909a 1850 910 1851 911 1852 912 1853 913 1854 914 1855 915 1856 916 1857 917 1858 918 1859 919 1860 920 1861 921 1862 922 1863 922a 1864 923 1865 924 1866 925 1867 925a 1868 926 1869 927 1870 928 1871 929 1872 930 1873 931 1874 932 1875 933 1876 934 1877 935 XLV Preserlt Ninth Edition Edition 1878 936 1879 937 1880 937a 1881 938 1882 939 1883 939a 1884 939b 1885 940 188G 941 1887 942 1888 943 1889 944 1890 945 1891 946 1892 946a 1893 947 1894 948 1895....... 949 1896 950 1897 951 1898 952 1899 953 1900 954 1901 955 1902 956 1903 957 1904 958 1905 959 1906 960 1907 961 1908 962 1909 963 1910 964 1911 965 1912 966 1913 967 1914 968 1915 969 XLVI Present Ninth Edition Edition 1916 970 1917 971 1918 972 1919 973 1920 974 1921 974a 1922 975 1923 978 1924 979 1925 980 1926 981 1927 982 1928 983 1929 984 TABLE OF SECTIONS. Present Ninth Edition Edition 1930 985 1931 986 1932 987 1933 988 1934 989 1935 990 1936 991 1937 992 1938 993 1939 994 1940 995 1941 996 1942 996a 1943 996b 1944 997 Present Ninth Edition Edition 1945 998 1946 999 1947 1000 1948 1001 1949 1002 1950 1003 1951 1004 1952 1005 1953 1006 1954 1007 1955 1008 1956 1009 1957 1010 1958 1011 CBIMIKAL PEOCEDURE. CHAPTER I. APPKEHENSION IN GENEKAL. §1. Introductory — "Apprehension" and "arrest." § 2. Same — Distinction sanctioned by good usage. § 3. Same— Doctrine of the decisions. § 4. Same — Law text-writers. § 5. Derivation of the words — ^Etymological distinctions. § 6. Same — Apprehend. § 7. Same — Arrest. § 8. Same — Another ground of distinction. § 9. Same — Difference of ultimate meaning, similarity of use. §1. Intkodxtctoey — "Appeehension" and "aeeest. " In speaking regarding the securing of the person and restraining of liberty, or holding to bail to appear in court to answer to a charge or charges of a violation or violations of persons alleged or supposed to have com- mitted offenses against the criminal or penal laws of the state, nation or municipality, the physical act of thus taking into custody and detaining of liberty is indiffer- ently and interchangeably spoken of as "apprehension" and as ' ' arrest, ' ' as though the two words were exact syno- nyms ;^ but it is thought that a discriminating and schol- arly use of these terms applies the words "apprehend" and "apprehension" to the taking and detention of per-' sons on a charge, or on well-grounded suspicion, that they have violated a criminal or penal law — that is, the taking and detaining of persons in criminal cases; and 1 Crabb's Synonyms does not the other works on synonyms and treat the words "apprehend" and antonyms examined, except Ro- "arrest." The same is true of all get's New Thesaurus (Mawson's I. Ciim. Proc— 1 (1) 2 CEIMINAL PEOCEDUEB. § 2 applies the words "arrest" and "arrested" to the taMng and detention of persons on process in civil cases.^ That is to say, correctly and strictly speaking, a person is apprehended on a complaint issued by a magistrate, or a warrant issuing out of a criminal court of record, charg- ing the commission, or the attempt to commit, rape or robbery or riot, or any other infraction of the criminal or penal laws, whether a felony or a misdemeanor ; and is arrested under a capias ad respondendum, or other writ or process issuing out of a civil court, of whatever jurisdiction, requiring the taking and detaining of the person.* § 2. Same — Distinction sanctioned by good trsAGB. The distinction contended for in the use of the words "appre- hend" and "arrest" is sanctioned by the best usage and discerning scholarship among writers and speakers of recognized distinction. In the King James translation of the Holy Scriptures, the word "apprehend" is used three times, in the sense above contended for,^ and the word "arrest" not at all, I believe. Oliver Goldsmith, in his "Story of Alcander and Septimus," says "the robber who had been really guilty" of the murder with which Alcander had been accused, "was apprehended selling his plunder. "2 Edward Everett, one of the finest word-artists edition) under "Lawsuit," par. 969, (Rawle's revision), tits. "Appre- and Feranold's English Synonyms hension" and "Arrest." and Antonyms, tit. "Arrest," p. 57 3 "Apprehend is used In speak- — botli of wliicli works give the jng of arrests on criminal charges, words as synonyms. -nrhile arrest is used in speaking 2 See Bacon's. Abridgment, tit. of civil offenses, not criminal in "Apprehension." Black says that nature. In other words, one may the term "apprehension" is applied make an arrest on civil process, exclusively to criminal cases, and while one can be apprehended on a "arrest" is applied to both civil criminal warrant." — ^White's Law and criminal cases— Law Diet., tit. in Shakespeare, § 283. "Apprehension." Bouvier declares lActs, ch. XII, ver. 4; II Cor., that the word "arrest" Is said to ch. XI, ver. 32; Phil., ch. Ill, ver. 12. be more properly used in civil 2 The Bee, No. 1, Goldsmith's cases, and the word "apprehen- Works (Library ed.. Harper), Vol. sion" In criminal cases. — Law Diet. 5, p. 23. §2 APPEEHENSION IN GENERAL. this or any other country has produced, says: "Hancock and Adams, though removed by their friends from the immediate vicinity of the force sent to apprehend them, were apprised, too faithfully, that the work of death was begun."* Shakespeare,* that master-hand in Saber-cuts of Saxon speech,^ is an unsatisfactory witness, having used the active verb "apprehend," in its physical sense, twenty times,® the active verb "arrest" twenty-two times,'^ and the word 3 Everett's Orations, p. 88. 4 Should we say Bacon ! in meek deference to Judge Tuthill's sol- emn though unlearned and Dog- berry "decision," as preposterous and as asinine as was the famous bull of Pope Alexander VI, in which he assumed to declare that all the Americas belonged to Spain! — but the pontifical "face" was saved by Pope Paul V, who undid the bull of his predecessor, and made a similar unauthorized disposition of the northern end of the North American continent. — See Parkham's "Pioneers of France in the New World" (Frontenao ed.), vol. 11, p. 213. Judge Tuthill's decision, it is to be noted, attempted to dispose in a summary manner of a dispute of many decades' standing, and over which the court had no juris- diction whatever, for the point Is not judicable in a court of law or equity. 5 Bret Harte's "How Are You Sanitary," Works (Standard Li- brary ed.), vol. XII, p. 5. 6 All Shakespearean references are to the Globe edition, but "fit," also, the Rolfe edition, in most cases at least; and this is prob- ably true of all standard editions: Comedy of Errors, act I, see. 2, line 4. Coriolanus, act III, see. 1, line 173. Henry V, act II, see. 2, line 2; Act IV, see. 7, line 168; act rv, see. 8, line 18. Henry VI (Part II), act II, see. 1, line 173. Henry VI (Part III), act I, see. 1, line 71; act III, see. 2, line 122. King Lear, act I, see. 2, line 83; act II, see. 1, line 110; act III, see. 5, line 20. Love's Labor Lost, act I, see. 1, line 276. Merry Wives of Windsor, act IV, see. 5, line 119. Othello, act I, see. 1, line 178; act I, see. 2, line 77. Romeo and Juliet, act V, see. 3, lines 53, 56. Timon of Athens, act I, see. 1, line 212. Twelfth Night, act V, see. 1, lines 68, 69. 7 Comedy of Errors, act IV, see. 1, lines 69, 75, 106; act IV, see. 2, lines 43, 44, 49; act IV, see. 4, line 85; act V, see. 1, line 230. Henry IV (Part II), act I, see. 9, line 48; act IV, see. 2, line 107. Henry V, act II, see. 2, lines 143, 145. Henry VI (Part II), act III, see. 1, lines 97, 136; act V, see. 1, line 136; act V, see. 5, line 201. Henry VIII, act IV, see. 2, line 13. King Lear, act V, see. 3, line 82. Measure for Measure, act I, see. 2, line 60; act I, see. 4, line 66. Rich- ard II, act IV, see. 1, line 151. CRIMINAL PROCEDUKE. §3 " 'rest" (for arrest) four times.^ Lord Macaulay seems to have uniformly used the vernacular word "arrest."* Many other instances, pro and con, as to the distinction contended for in the use of the words "apprehend" and "arrest" could be cited, but the above will serve suf- ficient illustration for the present purpose.^" § 3. Same — Doctrine of the decisions. Discriminating judges, familiar with the nice shades in the meaning of the edged tools of speech of which they make use, and careful in the appositeness and technical precision of the words employed, draw the distinction contended for in the use of the words "apprehend" and "arrest";^ but there is a multitude of other cases in which no consideration is given to the nice distinctions and shades in the meaning of, or a discriminating use of, these words. ^ In these latter 179 111. 150, 44 L. R. A. 809, 53 N. E. 604, affirming 74 111. App. 631; Com. V. Koferoth, 30 Pa. Co. Ct. 45; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812. "The mere apprehension, or ap- prehension and conviction." — Mr. Justice Lamm, in Smith v. Vernon County, 188 Mo. 501, 506, 107 Am. St. Rep. 324, 327, 70 L. R. A. 59, 87 S. W. 949. In the case of Ralls County v. Stephens, 104 Mo. App. 115, 78 S. W. 291, it is said that, in the real sense of the word, a man who took prompt and energetic meas- ures to bring a criminal within the grasp of the law — made journeys, sent telegrams, and the like — ap- prehended the criminal and de- served to receive the reward of- fered for his capture, rather than the officer simply making the ar- rest. 2 As in Connecticut, where the supreme court declare that "ap- prehension of a person on mesne Twelfth Night, act III, see. 4, line 360. 8 Comedy of Errors, act IV, see. 2, lines 42, 45; act IV, see. 3, line 25; act IV, see. 4, line 3. 9 As samples see History of Eng- land, chapter XXI, vol. VII (Hurd & Houghton ed.), pp. 280, 331. 10 Clarendon says, in his History of England: "It was a rabble, of which nobody was named ; and also is more flagrant, no one appre- hended." Grant says: "By the fugitive- slave law every Northern man was obliged, when properly summoned, to turn out and help apprehend the runaway slave of the Southern ■man." — "Personal Memoirs," vol. II, p. 543. On the other hand, De Hass: "At the instigation of Herodias John was at once arrested." — "Burled Cities," pt. Ill, p. 24. 1 Montgomery County v. Robin- son, 85 111. 174; Hogan v. Stophlet, §3 APPREHENSION IN GENERAL. cases the judges Avriting the opinions not only treat the words "apprehend" and "arrest" as synonymous, but, in some of the cases, they judicially determine that the words are synonymous and interchangeable* — a matter not properly judicable, in all probability, for it is not a matter of law but of etymology. It is to be noted that, as a matter of fact, this non-discriminating and interchange- able use of the words may be said to be largely pre- dominant in the reported decisions of the courts of the various states, in the various federal courts, and in the English decisions.* civil process to answer In a civil action is an 'arrest'." — Town of Hamden v. Collins, 85 Conn. 327, 82 Atl. 636, 638. 3 The Missouri Statutes, speak- ing of "apprehension and arrest" (Mo. Rev. Stats. 1899, § 2474), the supreme court of that state, in Cummings v. Clinton County, 181 Mo. 162, 79 S. W. 1127, construed the words "apprehension" and "ar- rest" to be interchangeable terms — arrest meaning the same as ap- prehension; and this case was fol- lowed in this construction of the statute in the later case of Smith V. Vernon County, 188 Mo. 501, 107 Am. St. Rep. 324, 70 L. R. A. 59, 87 S. W. 949. See Com. v. Koffroth, 30 Pa. Co. Ct. 45. 4 Among the many cases show- ing this use see: ALA. — Gamble v. Fuqua, 148 Ala. 448, 42 So. 735; Childers v. State, 156 Ala. 96, 47 So. 70; Sanderson v. State, 168 Ala. 109, 53 So. 109. CAL.— Peo- ple V. Dallen, 21 Cal. App. 770, 132 Pac. 1064. CONN.— Town of Hamden v. Collins, 85 Conn. 327, 82 Atl. 636, 638. DEL.— Petit v. Colmery, 4 Penn. 266, 55 Atl. 344; State v. Mills, 6 Penn. 497, 69 Atl. 841. GA.— King v. State, 6 Ga. App. 332, 64 S. E. 1001. ILL.— Main v. McCarty, 15 111. 441; Conk- lin V. Whitmore, 132 111. App. 574. KY.— Hart v. Flynn's Exr., 38 Ky. (8 Dana) 190; Com. v. West, 113 S. W. 76. LA.— O'Malley v. Whit- aker, 118 La. 906, 43 So. 545; Thomas v. Henderson, 125 La. 292, 51 So. 202. MAINE— Penny v. Walker, 68 Maine 430, 18 Am. Rep. 269. MASS.— French v. Bancroft, 42 Mass. (1 Mete.) 502; Eldredge V. Mitchell, 214 Mass. 480, 102 N. E. 969. MO.— State v. Pritchett, 219 Mo. 696, 119 S. W. 386. N. H. —Emery v. Chelsey, 18 N. H. 198. N. M. — Territory v. Lynch, 18 N. M. 15, 133 Pac. 405. N. Y.— Shorns V. Titus, 193 N. Y. 272, 85 N. E. 1077; People v. Governale, 193 N. Y. 581, 86 N. E. 554; Giorgio v. Bat- terman, 134 App. Div. 139, 118 N. Y. Supp. 828; Phillips v. Leary, 114 App. Div. 871, 100 N. Y. Supp. 200; People v. Breen, 44 Misc. 375, 89 N. Y. Supp. 998; People v. Brad- ley, 58 Misc. 507, 111 N. Y. Supp. 625. N. C— State v. Baxton, 102 N. C. 129, 8 S. E. 774. OHIO— Williams v. Morris, 32 Ohio Cir. CEIMINAIi PEOCEDURB. §4 § 4. Same — ^Law tbxt-wbitees. Among those who have written text books on the criminal branch of the law, or treated of that branch in other works, very little or no attention has been paid to the distinction between the word "apprehend" and the word "arrest" as above pointed out, and they seem generally^ to use the word "arrest" to designate the act of apprehending a person on a charge of an offense committed, or attempted, against the criminal or penal laws, as well as the taking into custody of a person on a civil process.^ And it is to be Ct. Rep. 453. OKLA.— Holmes v. LePors, 36 Okla. 729, 129 Pao. 718; Collegania v. State, 9 Okla. Cr. 425, 132 Pac. 375. PA.— Hlgbie v. Pennsylvania R. Co., 209 Pa. St. 452, 58 Atl. 858; In re Election Of- ficers, 1 Brewst. 182; Com. v. Dan- iel, 4 Clark 49, 6 Pa. L. J. 330; Com. V. Keepers of Jail, 1 Del. Co. Ct. 215, 4 W. N. C. 540. TBNN.— Herd v. State, 119 Tenn. 583, 108 S. W. 1064. TEX.— Ex parte Sher- wood, 29 Tex. App. 334, 15 S. W. 812; Ex parte Muckenfuss, 52 Tex. Cr. App. 467, 107 S. W. 1131; Con- dron V. State, 69 Tex. Cr. App. 513, 155 S. W. 253. VT.— Scott v. Cur- tis, 27 Vt. 762; Usher v. Severance, 86 vt. 523, 86 Atl. 741. FED.— United States v. Kirby, 74 U. S. (7 Wall.) 482, 7 L. Ed. 278; Ex parte Levi, 28 Fed. 651; United States V. Bond, 85 Fed. 633; O'Hal- loran v. McGuirk, 167 Fed. 493; United States v. Wise, Hayw. & H. 82, Fed. Cas. No. 16746a; United States V. Hart, Pet. C. C. 90, Fed. Cas. No. 15316. ENG.— Genner V Sparkes, 1 Salk. 79, 91 Eng. Repr. 74. 1 A notable exception is Roscoe's Criminal Evidence, in which the term apprehend is uniformly used. 2 John Cowell, author of "The Interpreter," writing in the latter part of the sixteenth century, says : "A man apprehended for debt is said to be arrested." A recent misapprehension of the true import and nice shade in the meaning of the word apprehend, and of its proper application, is to be found in the third revised edi- tion of Bouvier's Law Dictionary (vol. I, _p. 241), where the editor, under the head of "arrest," in the subdivision "in civil practice," says that arrest is "the apprehen- sion of a person by virtue of a legal authority to answer to the demands against him in a civil action," citing Gentry v. Griffith, 27 Tex. 461, 462, which case no- where furnishes any support to the text, the point involved being the matter of a legislator's privi- lege from "arrest," which was held not to include citation or notice to appear. The editor might with propriety have cited Town of Ham- den v. Collins, 85 Conn. 327, 82 Atl. 636, 638, in which the court uses the language: "Apprehen- sion of a person under a mesne process to answer in a civil action is an 'arrest'." § § 5, 6 APPREHENSION IN GENEEAL. 7 noted further that this undiscriminating use of the words "apprehend" and "arrest" has been carried into many, if not most, of the state constitutions,* statutes and codes.* § 5. DeKIVATION of the words ETYMOLOGICAIi DISTINC- TIONS. The derivation of the words "apprehend" and "arrest," and the nice etymological distinctions in the shades of meaning of the root-words, justify the distinc- tion above contended for in the use of those words ; but to those who do not look beneath the general import and meaning of the root-words it also seems to lend justifica- tion for the vernacular use of the words interchangeably as synonyms. §6. Same — ^Appbbhend. The word "apprehend" rep- resents words in the French^ and Latin^ meaning, ulti- mately, "to lay hold upon, seize," and from its earliest use in English this word has the "lay hold upon, seize" idea, being applied with reference to literal laying hold, legal laying hold; and applied, in law, means to seize, seize upon, to take hold of, to take into custody of the law, to make a prisoner of a person — especially seizing a criminal, or one reasonably presumed to have com- s As, for example, in Ala. Const. Pen. Code 1911, art. 479, and Utah 1901, art. I, §5; La. Const., art. Rev. Stats. 1898, § 4635. 204. 1 Century Dictionary: Old 4 As Ala. Code 1907, § 6270; Cal. French apprehendre, modern Pen. Code, §§836, 839; Ga. Pen. French apprehender; Universal Code 1895, §896; Idaho Pen. Code Diet.: French apprehendre, ap- 1901, §5236, and Pen. Code 1903, prehender— to seize; Webster's § 834; Ky. Cr. Code Prac, §§ 37, Diet.: French apprehender. 38; Miss. Code 1892, §1387; Mo. 2Burrill's Law Dictionary de- Rev. SUts. 1899, §2540; N. T. rives from Latin apprehendere— Code Cr. Proc., §§117, 177, 183, to take hold of; Century Diet: and Cr. Code 1903, § 167; N. D. From apprehendere and adhen- Rev. Codes 1899, § 7912; Ohio Gen. dere — lay hold upon, seize; Dr. Code, §§12, 525; Ore. Ann. Codes Johnson's Diet. (ed. 1775): De- & Stats. 1901, §1601; Tenn. Shan- rives from Latin apprehendo, and non's Code, § 6997; Tex. Code Cr. defines "to seize for trial and pun- Prac. 1895, arts. 42, 80, 114, and ishment"; Universal Diet: Ap- 8 CRIMINAL PROCEDURE. §v mitted an offense against the criminal law, and bringing him to justice.* §7. Same — ^Arrest. The word "arrest" represents words from the French^ and Latin^ which mean,* liter- ally, "to stop, restrain."* The word "arrest" is first recorded in Middle English in a few intransitive quota- tions meaning "to come to a stand, halt, stay." Its ear- liest transitive use in English — half a century later — means "to cause to stop, check or hinder the motion or action of," and, also about the same time, "to lay hold upon by legal authority."^ In State v. Buxton," the North Carolina court says that "the word 'arrest' has a technical meaning, applicable to legal proceedings. It implies that a person is thereby restrained of his liberty prehendo; Webster's Diet: Ap- prehendere — to lay hold of, seize. 3 "The term apprehension is more often applied to criminal cases, and arrest to civil cases; as, one having authority, may ar- rest on civil process, and appre- hend on a criminal warrant," 1 Bouvier's L. Diet. (3rd ed.), pp. 217, 243. 1 Century Dictionary: Middle English aresten and arresten, de- rived from Old French arester, modern French arr§ter — stop, re- strain; Dr. Johnson's Diet. (ed. 1775): Arrester — to stop; Univer- sal Diet, (same derivation); Web- ster's Diet.: Old French arester, modern French arr§ter. 2 Century Dictionary: Medieval Latin, arrestare — stop, restrain; Webster's Diet.: Arrestare. 3 The Latin elements being "ad," to, and "restare," stay back, re- main; restare, "re" signifies back and "stare," stand. i See discussion in Legrand v. iiedenger, 20 Ky. (4 T. B. Mon.) 539. Old examples are also on record, of arrest being used in the literal sense of "laying hold upon, seize" — ^as in 1481, beasts are spoken of as arresting with their claws all that they can hold. 5 Jacobs says: "Arrest (arres- tum) Cometh from the French word arrester, to stop or stay. It is a restraint of a man's person, obliging him to be obedient to the law, and is defined to be the exe- cution of a command of some court of record or oiRcer of jus- tice." — Jacobs' Law Diet., tit. "Ar- rest." Tomlinson says: "An arrest Is the beginning of an imprisonment, where a man is first taken and re- strained of his liberty, by power or color of a lawful warrant; also it signifies the decree of a court by which a person is arrested." — Tomlinson's L. Diet, tit. "Arrest" 6 102 N. C. 129, 8 S. E. 774. § 8 APPREHENSION IN GENERAL. 9 by some officer or agent of the law armed with lawful process authorizing and requiring the arrest to be made" — which is strictly true in a civil action, but is not cor- rect when applied to those cases where a person is alleged or supposed to have committed an offense against the criminal or penal laws, for in such a case, in many instances, an apprehension may be made either by an officer of the law or by a private person, and with or without a warrant or process issuing out of some court, or a direction of some officer of justice ' * authorizing and requiring" the act to be doneJ This is one of the tech- nical distinctions between an apprehension and an arrest. § 8. Same — Akothek geotjnd of distinction. A dis- tinction better drawn than between criminal charges and civil cases would be one that recognizes in "apprehend" a mere act of seizing, or taking into custody, and ' * arrest ' ' a placing under certain (prolonged) legal restraints — a difference of intention rather than of effect. The ground for such a distinction is more apparent in considering the nouns ' ' apprehension ' ' and ' ' arrest, ' ' the legal appre- hension of a man being a single act and also the legal arrest of him, whereas he might be said to be under arrest, but can hardly be said to be under apprehension. 7 At common law private per- Kentucky Criminal Code, sons are justified, without a war- § 35, has changed the common-law rant, in apprehending and detain- rule, providing arrests may be ing until they can be carried be- made by a peace officer or private fore a magistrate, all persons person, declaring a private person found committing or attempting to may arrest when he has reason- commit a felony (R. v. Hunt, 1 able grounds to believe the person Moo. C. C. 93) ; but it was other- has committed a felony. — Rich v. wise as to crimes less than a fel- Bailey, 123 Ky. 827, 97 S. W. 747. ony. — Foster P. C. 318. Peace officers may, without a Private persons may make ar- warrant, apprehend and detain per- rest, at common law, for a breach sons on a reasonable suspicion of the peace or a misdemeanor that they have been guilty of the committed in their actual pres- commission of a felony. — 1 East, ence, as well as may an officer of P. C. 301; 2 Hal© P. C. 83, 84, 89. the law.— Rich v. Bailey, 123 Ky. 827, 97 S. W. 787. 10 cbiminal peoceduee. § 9 § 9. Same — ^Diffeeenob of ultimate meaning, similae- ITY in use. From what has been said it will be seen that though the ultimate meanings of the two words are somewhat different, and though "apprehend" might be taken to represent more markedly a seizure idea naturally associated with criminal charges, both words seem to have been used in English during the sixteenth century, without distinction, to represent the idea of ' ' seize ' ' and "lay hold upon by legal authority"; and the distinction of "apprehend" with reference to criminal charges and "arrest" with reference to civil cases, is apparently mod- ern. It would seem, though, as if this distinction were based on an appreciation of the ultimate etymological sense of the two words, "apprehend" being given more to the original "seizing" idea of the word, "arrest" being given more to the original "stop, restrain" and "check or hinder the motion of" idea. So far as the practical application is concerned in law, aside from the etymological and nice technical distinc- tion between the two words, which has been pointed out, and the protection vouchsafed to "officers of the law" taking persons into custody in the shape of immunity from damages for the apprehension or arrest are con- cerned — with which this chapter has nothing to do — an apprehension and an arrest, in the popular under- standing, describe the same overt act, namely, the act of seizing the person and detaining of his liberty and hold- ing to answer to the court, by putting hands upon his body or clothing, or by any other act manifesting an intention and showing an ability to take him into cus- tody, to the end that he may be forthcoming to answer in a court of justice, implies force, and applies not only to the original taking, but also to the continued deten- tion of the person in custody.^ To this extent, only, are the words synonymous and interchangeable. 1 "To arrest is to seize and re- law." — Baltimore & O. R. Co. v. tain a person in the custody of the Strube, IH Md. 119, 73 Atl. 697. CHAPTEE n. APPREHENSION ^PKIVILEGE EBOM AEKEST. § 10. Generally. § 11. Parties and witnesses — Resident. § 12. Same — Nonresident. § 13. Judges, attorneys and jurors in case. § 14. Attendance on federal court. § 15. Ambassadors. § 16. Army officers and soldiers. § 17. Consuls. § 18. Members of congress and of legislatures. § 19. Officers and employees of the government. § 20. Defendants and witnesses in criminal cases. § 10. Genebally. As a general proposition, no per- son is privileged from apprehension for treason or felony in any form, or for a misdemeanor, but there are cer- tain privileges from arrest in civil actions, or even from the service of civil process requiring the taking of the person, in some cases.^ The question of this privilege, while quite an important one and not without serious con- flict in cases of the various jurisdictions, does not fall within the scope of this treatise, except in so far as it may have a bearing upon the question of immunity from arrest of parties or witnesses in a criminal proceeding while they are in necessary attendance upon the busi- ness of the trial and disposition of the case, going to and returning therefrom, and the extent of their privilege. 1 See, however, authorities in Com. v. Daniel, i Clark (Pa.) 49, § 20, post. 6 Pa. law J. 330. Privilege from arrest is confined Witnesses attending court are to parties in civil proceedings, un- not privileged from apprehension less it appears that the apprehen- where charged with an indictable sion upon a criminal charge was offense. — Ex parte Levi, 28 Fed. merely a subterfuge to get defen- 651. dant into custody in a civil suit.— (11) 12 CRIMINAL PROCEDURE. §11 An outline of the general principle will be sufficient to show the reason for the rule in criminal cases, and is all that is attempted in this chapter. § 11. Paeties and witnesses — Resident. It has long been the settled doctrine in this country — following the common law in this regard — that the parties^ to an action, lARK. — Martin v. Bacon, 76 Ark. 160, 113 Am. St. Rep. 81, 6 Ann. Cas. 336, 88 S. W. 863. CAL. —Page V. Randall, 6 Cal. 332 (ex- empt from arrest, but not from or- dinary process). ILL. — Graeer v. Young, 120 111. 184, 11 N. E. 167; Gregg V. Sumner, 21 111. App. 110. IND. — Wilson V. Donaldson, 117 Ind. 356, 3 L. R. A. 266, 20 N. E. 250. MD.— Long V. Hawken, 114 Md. 237, 42 L. R. A. (N. S.) 1101, 79 Atl. 190. MASS. — Com. v. Huggeford, 26 Mass. (9 Pick.) 257; Wood v. Neale, 72 Mass. (6 Gray) 538; Thompson's Case, 122 Mass. 428, 23 Am. Rep. 370. MICH.— Case v. Rosabacher, 15 Mich. 537; Jacob- son V. Hosmer, 76 Mich. 234, 42 N. W. 1110. MINN.— First Nat. Bank v. Ames, 39 Minn. 179, 39 N. W. 308. NEB. — Palmer v. Ro- wan, 21 Neb. 452, 59 Am. Rep. 844, 32 N. W. 210. N. J.— Harris v. Granthan, 1 N. J. L. (Coxe) 142; Halsey v. Stewart, 4 N. J. L. (1 South.) 366; Dungan v. Miller, 37 N. J. L. (8 Vr.) 182. N. Y.— Clark V. Grant, 2 Wend. 257; Williams V. Bacon, 10 Wend. 636; Snelling V. Waterous, 2 Paige Ch. 314 ; Per- son V. Grier, 66 N. Y. 124, 23 Am. Rep. 35; Mathews v. Tutts, 87 N. Y. 568 (as creditor in bankruptcy proceedings and attorney for other creditors) ; Murphy v' Sweezy, 2 N. Y. Supp. 241. N. C— Cooper v. Wyman, 122 N. C. 787, 65 Am. St. Rep. 731, 29 S. E. 947. N. D.— Hicks V. Besuchet, 7 N. D. 434. 66 Am. St. Rep. 655, 75 N. W. 793 (witness as well as litigant). OHIO— Compton v. Wilder, 40 Ohio St. 130; Barber v. Knowles, 77 Ohio St. 81; 14 L. R. A. (N. S.) 663, 82 N. E. 1065. PA.— Miles v. McCullough, 1 Binn. 77; Hayes v. Shields, 2 Yeates 222; Com. v. Donald, 4 Clark 49. R. I.— Water- man V. Merritt, 7 R. I. 345; Ellis V. Garmo, 17 R. L 715, 19 L. R. A. 560, 24 Atl. 579. S. D.— Fisk v. Westover, 4 S. D. 235, 46 Am. St. Rep. 780, 55 N. W. 961. VA.— Richards v. Goodson, 2 Va. Cas. 381. WIS. — Moletor v. Sinnen, 76 Wis. 308, 20 Am. St. Rep. 71, 7 L. R. A. 817, 44 N. W. 1099. FED.— Bridges v. Sheldon, 18 Blatchf. 507, 7 Fed. 17; Juneau Bank v. McSpedan, 5 Biss. 64, Fed. Cas. No. 7582; United States v. Bridg- man, 9 Biss. 221, Fed. Cas. No. 14645; Blight v. Fisher, 1 Pet. C. C. 41, Fed. Cas. No. 1542; Parker v. Hotchkiss, 1 Wall. Jr. 269, Fed. Cas. No. 10739; Brooks v. Farwell, 4 Fed. 166; Wilson Sewing Ma- chine Co. V. Wilson, 22 Fed. 803; Small V. Montgomery, 23 Fed. 707; Kauffman v. Kennedy, 25 Fed. 785; Davis V. Cleveland, C. C. & St. L. R. Co., 146 Fed. 407. Party attending trial as witness exempt from arrest on civil proc- § 11 APPREHENSION — PRIVILEGE FROM ARREST. 13 and their witnesses,^ attending in good faith a legal tri- ess. — Mackay v. Lewis, 7 Hun (N. Y.) 83. Does not waive privilege by giv- ing bond. — Mackay v. Lewis, supra. See Dickinson v. Farwell, 71 N. H. 213, 51 Atl. 624. Contra: Tipton v. Harris, 7 Tenn. (Peck.) 414. 2 ARK. — Martin v. Bacon, 76 Ark. 160, 113 Am. St. Rep. 81, 6 Ann. Cas. 336, 88 S. W. 868 (summoned in a case in which, he is also a party). CONN. — Bishop v. Vose, 27 Conn. 1; Chittenden v. Carter, 82 Conn. 590, 18 Ann. Cas. 125, 74 Atl. 884 (interested in suit, but not a party). IND. — Wilson v. Donaldson, 117 Ind. 356, 10 Am. St. Rep. 48, 3 L. R. A. 266, 20 N. E. 250. KAN.— Bolz v. Crane, 64 Kan. 572, 67 Pac. 1108. MAINE —Smith V. Jones, 76 Maine 138, 49 Am. Rep. 598. MD. — Bolgiano v. Gilbert Lock Co., 73 Md. 134, 20 Am. St. Rep. 582, 20 Atl. 788; Long V. Hawken, 114 Md. 237, 42 L. R. A. (N. S.) 1101, 79 Atl. 190. MASS. — Thompson's Case, 122 Mass. 428, 23 Am. Rep. 370. MICH.— Leth- erby v. Shaver, 73 Mich. 500, 41 N. W. 677; Monroe v. St. Clair Circuit Judge, 125 Mich. 283, 52 L. R. A. 189, 84 N. W. 305. MINN. — Sherman v. Gundlach, 37 Minn. 118, 33 N. W. 549; First Nat. Bank V. Ames, 39 Minn. 179, 39 N. W. 308. MO.— Christian v. Williams, 111 Mo. 429, 20 S. W. 96. NEB.— Palmer v. Rowan, 21 Neb. 452, 59 Am. Rep. 844, 32 N. W. 210. N. H. — Ela V. Ela, 68 N. H. 314, 36 Atl. 15. N. J. — Jones v. Knauss, 31 N. J. Eq. (4 Stew.) 211; Dugan v. Miller, 37 N. J. L. (8 Vr.) 182; Massey v. Colville, 45 N. J. L. (16 Vr.) 119, 46 Am. Rep. 754; Mulhearn v. Press Publishing Co., 53 N. J. L. 150, 11 L. R. A. 101, 21 Atl. 186. N. Y.— Sanford v. Chase, 3 Cow. 381; Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 25; Parker v. Marco, 136 N. Y. 585, 32 Am. St. Rep. 770, 20 L. R. A. 45, 32 N. B. 989; Mackay V. Lewis, 7 Hun 83; Lamkin v. Starkey, 7 Hun 479; Thorp v. Adams, 58 Hun 63, 11 N. Y. Supp. 41; Hollender v. Hall, 58 Hun 603, 11 N. Y. Supp. 759. N. C— Cooper T. Wyman, 122 N. C. 787, 65 Am. St. Rep. 731, 29 S. B. 947; White V. Underwood, 125 N. C. 25, 74 Am. St. Rep. 630, 46 L. R. A. 706, 34 S. E. 104. N. D.— Hicks v. Besuchet, 7 N. D. 434, 66 Am. St. Rep. 665, 75 N. W. 793 (suitor as well as witness). R. I. — Baldwin V. Emerson, 16 R. I. 34, 15 Atl. 83; Capwell V. Sipe, 17 R. I. 475, 33 Am. St. Rep. 890, 23 Atl. 14. S. C. — Breon v. Miller Lumber Co., 83 S. C. 225, 24 L. R. A. (N. S.) 278, 65 S. E. 214. S. D.— Fisk v. West- over, 4 S. D. 235, 46 Am. St. Rep. 780; 55 N. W. 961; Malloy v. Brewer, 7 S. D. 591, 58 Am. St. Rep. 586, 64 N. W. 1120. TENN.— Sewanee Coal, Coke & Lumber Co. V. Williamson & Co., 120 Tenn. 339, 107 S. W. 968. VA.— Com. v. Ronald, 4 Call. 97 WIS.— Moletor V. Slnnen, 76 Wis. 308, 20 Am. St. Rep. 71, 7 L. R. A. 817, 44 N. W. 1099. FED. — Juneau Bank v. Mc- Spedan, 5 Biss. 64, Fed. Cas. No. 7582; Bridges v. Seldori 18 Blatcht. 507, 7 Fed. 17; Blight v. Fisher, 1 Pet. C. C. 41, Fed. Cas. No. 1542 ; Parker v. Hotchkiss, 1 Wall. Jr. 269, Fed. Cas. No. 10739; Brooks v. Farwell, 4 Fed. 166; Small v. 14 CRIMINAL PROCEDURE. §11 bunal,^ are privileged in all jurisdictions from airrest* in a civil suit during such attendance, and have a reasonable time in going to and returning therefrom;^ and in some Montgomery, 23 Fed. 707; Kaufe- man v. Kennedy, 25 Fed. 785. Voluntarily attending trial as a witness, service of process not void, but may be set aside by the court. — Massey v. Colville, 45 N. J. L. (16 Vr.) 119, 46 Am. Rep. 754. Witness at lodgings while en- gaged in suit, privileged. Hurst's Case, 4 U. S. (4 Dall.) 387, 1 L. Ed. 878, Fed. Cas. No. 6924; Parker v. Hotchkiss, 1 Wall. Jr. 269, Fed. Cas. 10793 (during day on which plaintiff nonsuited). 3 While in actual attendance, and have a reasonable time to prepare for departure. — Corn v. Ronald, 4 Call (Va.) 97; Richards v. Good- son, 2 Va. Cas. 381; Smythe v. Banks, 4 U. S. (4 Dall.) 329, 1 L. Ed. 154 (not for the whole term, or while transacting private busi- ness). Attending reference before mas- ter, and in vacation.— Huddeson v. Prezir, 9 Phlla. (Pa.) 65; Vincent V. Watson, 1 Rich. L. (S. C.) 194; Sidgier v. Berch, 9 Ves. 69, 32 Eng. Repr. 527. Spectator not exempt. — Mcln- tyre v. Mclntyre, 5 Mack. (D. C.) 344. 4 Service of writ in civil act not an arrest, without statutory pro- vision that "all persons necessa- rily going to, attending, or return- ing from the same," the superior court, "shall be free from arrest in any civil action." — Huntington V. Shultz, Harp. (S. C.) 452, 18 Am. Dec. 660. 5 GA. — Thornton v. American Writing Machine Co., 83 Ga. 288, 20 Am. St. Rep. 320, 9 S. B. 679. ILL.— Green v. Young, 120 111. 189, 11 N. E. 167. MICH.— Munroe v. St. Clair Circuit Judge, 125 Mich. 285, 52 L. R. A. 190, 84 N. W. 305. N. J. — Rogers v. Bullock, 3 N. J. L. (2 Pen.) 516 (subpoena served, necessary to indemnity for ar- rest) ; Halsey v. Stewart, 4 N. J. L. (1 South.) 366; Jones v. Knauss, 31 N. J. Eq. (4 Stew.) 211 (sub- poena necessary to immunity). N. Y. — Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35; Parker v. Marco, 136 N. Y. 585, 32 Am. St. Rep. 770, 20 L. R. A. 45, 32 N. E. 989. N. C. — Moore v. Green, 73 N. C. 394, 21 Am. Rep. 470; Cooper V. Wyman, 122 N. C. 785, 65 Am. St. Rep. 371, 29 S. E. 947. PA.— Miles V. McCullough, 1 Binn. 77; Kay V. Jetto, 1 Pittsb. 117. R. I.— Capwell V. Sipe, 17 R. I. 475, 33 Am. St. Rep. 890, 23 Atl. 14. VT —Scott V. Curtis, 27 Vt. 762. WIS — ^Anderson v. Rountree, 1 Pin 115; Cameron v. Roberts, 87 Wis 291, 41 Am. St. Rep. 43, 58 N. W, 376. FED.— Lyell v. Goodwin, 4 McL. 29, Fed. Cas. No. 8616; At- chison V. Morris, 11 Fed. 582 (ser- vice not void, but voidable). ENG. —Hare v. Hide, 16 Q. B. (16 Ad. & E. N. S.) 394, 71 Eng. C. L. 394, 71 Eng. C. L. 393, 20 L. G. Q. B. N. S. 185, 15 Jur. 315; Anonymous, 1 Dowl. P. C. 175; Jacobs v. Jacobs, 3 Dowl. P. C. 675; Rex v. Douglas, 7 Jur. 39. Amount of time allowed, a rea- §11 APPEEHENSION — ^PRIVILEGE FROM ARREST. 15 jurisdictions this immunity extends to freedom from ser- vice of a citation or a summons as well as to an arrest/' This immunity applies whether they are attending in the sonable time, both going and com- ing. — Gregg V. Sumner, 21 111. App. 110; Bolgiano v. Gilbert Lock Co., 73 Hd. 132, 25 Am. St. Rep. 582, 20 Atl. 788; Brett v. Brown, 13 Abb. Pr. N. S. (N. Y.) 295; Cooper V. Wyman, 122 N. C. 784, 65 Am. St. Rep. 731, 29 S. B. 947; Barber V. Knowles, 77 Ohio St. 81, 14 L. R. A. (N. S.) 663, 82 N. E. 1065; Ferree v. Pierce, 25 Pa. Co. Ct. 112 (an hour reasonable limit of ex- emption) ; Smythe v. Banks, 4 U. S. (4 Ball.) 329, 1 L. ed. 854, Fed. Cas. No. 13134; Lightfoot v. Came- ron, 2 W. Bl. 1113, 96 Eng. Repr, 658 (suitor remaining in court after case seven or eight hours to get an opportunity to confer with his counsel, and going to dine with counsel and witnesses at tav- ern privileged) ; Silby v. Hills, 1 Moore & S. 253 (suitor on direct route home two hours after hear- ing, although he made some stops, privileged) ; Anonymous, 1 Smith 355 (remaining in town from mid- dle of afternoon until middle of afternoon next day privilege lost where home but twelve miles dis- tant); Mahon v. Mahon, 2 Ir. Eq. Rep. 440 (suitor, on way to solici- tor's house to arrange as to ex- hibits, stopping at exhibition of pictures does not lose privilege). Deviation. Suitor or witness not bound to return home by the near- est route. — Pitt v. Coomes, 5 Bar. & Ad. 1078, 110 Eng. Repr. 1091, 27 Eng. C. L. 452 (suitor stopping two hours at office to assort the papers, and calling at tailor shop later, both on way home, not a deviation and privilege not lost) ; Randall v. Gurney, 1 Chitty 679, 18 Eng. C. Li. 370 (witness going out of course to secure papers re- quired as exhibits, loses his privi- lege, a deviation) ; Ricketts v. Gur- ney, 1 Chitty 682, 18 Eng. C. L. 372 (witness going out of way to se- cure papers required as exhibits, does not lose his privilege) ; Wil- lingham v. Matthews, 6 Taunt. 35S, 128 Eng. Repr. 1072; 1 Eng. C. L. 652 (going somewhat out of way and stopping at a shop, privi- lege not lost). Going beyond home without stopping, suitor loses his privilege. —Heron v. Stokes, 41 N. C. (6 Ir. Eq.) 125. 6 GA. — Thornton v. American Writing-Machine Co., 83 Ga. 288, 20 Am. St. Rep. 320, 6 L. R. A. 73, 9 S. E. 679. MD. — Peters v. I.«ague, 13 Md. 58, 71 Am. Dec. 622 (ser- vice not void, but Irregular). MICH. — Letherby v. Shaver, 73 Mich. 500, 41 N. W. 677. N. J.— Jones v. Knauss, 31 N. J. Eq. (4 Stew.) 211. Dugan v. Miller, 37 N. J. L. (8 Vr.) 182; Massey v. Col- ville, 45 N. J. L. (16 Vr.) 119, 46 Am. Rep. 754. N. Y. — Person v. Grier, 66 N. Y. 124, 23 Am, Rep. 35. OHIO — ^Andrews v. Lembeck, 46 Ohio St. 38, 15 Am. St. Rep. 547, 18 N. E. 483; Barber v. Knowles, 77 Ohio St. 81, 14 L. R. A. (N. S.) 663, 82 N. E. 1065. PA.— Miles v. Mc- Cullough, 1 Binn. 47. VT.— In re Healey, 53 Vt. 496, 38 Am. Rep. 713. WIS.— Andrews v. Rountree, 16 CRIMINAL PROCEDURE. 11 county of their residence, in another county in the same state/ or in another state/ As has been well said in a New York case,® "this immunity does not depend upon statutory provisions, but is deemed necessary for the administration of justice ; it is not confined to witnesses, but extends to parties as well, and is abundantly sus- tained by authority.'"" The foundation of the rule, in common law, is the impolicy of permitting any action which will deter suitors and witnesses from coming into court^^ and thus impeding the process of justice; for it is the policy, both at com- mon law and under the procedure in the various jurisdic- tions in this country, that witnesses should be produced 1 Pin. 115; Cameron v. Roberts, 87 Wis. 291, 41 Am. St. Rep. 43, 58 N. W. 376. FED.— Lyell v. Goodwin, 4 McL. 29, Fed. Cas. No. 8616; Matthews v. Puffer, 10 Fed. 66; Atchison v. Morris, 11 Fed 582; Lamed v. Griffin, 12 Fed. 590. Voluntary appearance, not exempt. Jones v. Knauss, 41 N. J. Eq. (4 Stew.) 211 (subpoena nec- essary to immunity) . Contra: Walpole v. Alexander, 3 Doug. 45, 99 Eng. Repr. 350, 26 Eng. C. L. 41. 7 ARK. — Powers v. Arkadelphia Lumber Co., 61 Ark. 508, 54 Am. St. Rep. 276, 33 S. W. 842; Martin V. Bacon, 76 Ark. 160, 113 Am. St. Rep. 81, 6 Ann. Cas. 336, 88 S. W. 868. CONN. — Chittenden v. Car- ter, 82 Conn. 590, 18 Ann. Cas. 125, 74 Atl. 884. ILL.— Gregg v. Sum- ner, 21 111. App. 110. KAN.— Bolz V. Crone, 64 Kan. 572, 67 Pac. 1108 ; Underwood v. Fosha, 73 Kan. 413, 9 Ann. Cas. 833, 85 Pac. 564. MASS.— Thompson's case, 122 Mass. 428, 33 Am. Rep. 370. MICH. — Jacobson v. Hosmer, 76 Mich. 234, sub nom. Jacobson v. Wayne Circuit Judge, 42 N. W. 1110. N. Y.— Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35; Mat- thews V. Tufts, 87 N. Y. 566; Hess V. Flansburg, 26 N. Y. Supp. 329. N. D.— Hicks V. Besuchet, 7 N. D. 434, 66 Am. St. Rep. 665, 75 N. W. 793. PA.— Addicks v. Bush, 1 Phila. 19. S. C— Breon v. Miller Lumber Co., 83 S. C. 225, 24 L. R. A. (N. S.) 278, 65 S. E. 214. FED. — Lamed v. Griffin, 12 Fed. 590; Central Trust Co. v. Milwaukee St. R. Co., 74 Fed. 442. ENG. — Goodwin v. Lordon, 1 Ad. & El. 378, 110 Eng. Repr. 1251, 28 Eng. C. L. 188. 8 See post, § 12. 9 Matthews v. Tufts, 87 N. Y. 570. 10 See Moore v. Greene, 73 N. C. 473; White v. Underwood, 125 N. C. 25, 74 Am. St. Rep. 630, 46 L. R. A. 706, 34 S. E. 104. 11 Massey v. Colville, 45 N. J. L. (16 Vr.) 119, 46 Am. Rep. 754; White V. Underwood, 125 N. C. 25, 74 Am. St. Rep. 630, 46 L. R. A. 706, 34 S. E. 104. §11 iPPREHENSION PRIVILEGE FROM ARREST. 17 in court and have oral examination, as well as that par- ties to the action shall have full opportunity to be present and to be heard when their cases are reached and tried.^* It is held to be the duty of the court to foster this policy from which the privilege and immunity spring.^^ The privilege is a very ancient immunity, extending to every proceeding of a judicial nature taken in and under the direction of, or emanating from a duly constituted tribunal, which directly relates to the trial and deter- mination of the issues involved in the cause,^* — as to a hearing or reference,^' bankruptcy proceedings,^® and the 12 First Nat. Bank v. Ames, 39 Minn. 179, 39 N. W. 308; Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35, affirming Person v. Pardee, 6 Hun (N. Y.) 477. 13 Mitchell v. Huron Circuit Judge, 53 Mich. 541, 19 N. W. 176; Hoffman v. Circuit Judge, 113 Mich. 109, 67 Am. St. Rep. 458, 38 L. R. A. 663, 71 N. W. 480; Merrill V. George, 23 How. Pr. (N. Y.) 331. 14 Powers V. Arkadelphia Lum- ber Co., 61 Ark. 508, 54 Am. St. Rep. 276, 33 S. W. 842; Parker v. Marco, 136 N. Y. 585, 32 Am. St. Rep. 770, 20 L. R. A. 45, 32 N. E. 989; Holmes v. Nelson, 1 Phila. fPa.) 217 (taking depositions for use in case in United States su- preme court) ; Ladd Metal Co. v. American Min. Co., 152 Fed. 1008 (taking depositions). Any legal tribunal, whether a court of record or not. — Thomp- son's Case, 122 Mass. 428, 23 Am. Rep. 370. Attending Injunction hearing in county other than that of resi- dence, privileged. — ^Andrews v. Lembech, 46 Ohio St. 38, 15 Am. St. Rep. 547, 20 N. E. 549. Attending sale under judicial I. Crim. Proc. — 2 decree, not exempt. — Greenleaf v. People's Bank, 133 N. C. 293, 98 Am. St. Rep. 709, 63 L. R. A. 499, 45 S. E. 638. Witness in own behalf before legislature to establish claim against the state, privileged from arrest. — Thompson's Case, 122 Mass. 428, 23 Am. Rep. 370. 15 Mulehon v. Press Publishing Co., 53 N. J. L. 153, 11 L. R. A. 101, 20 Atl. 186 (testifying before court commissioner on motion to set aside service of summons) ; Dick- inson V. Farwell, 71 N. H. 215, 51 Atl. 624; Dugan v. Miller, 37 N. J. L. (8 Vr.) 182 (hearing before master in chancery) ; Carstains v. Knapp, 3 W. N. C. (Pa.) 292 (hear- ing before magistrate, going and coming from court). Taking depositions. — Powers v. Arkadelphia Lumber Co., 61 Ark. 508, 54 Am. St. Rep. 276, 33 S. W. 842; Holmes v. Nelson, 1 Phila. (Pa.) 217 (attending as stock- holder and attorney) ; Ladd Metal Co. v. American Min. Co., 152 Fed. 1008. 16 Matthews v. Tufts, 87 N. Y. 568. 18 CRIMINAL PROCEDURE. §12 like. Mr. Justice Cooley says in a well-considered Michi- gan case,^'' that "there is no doubt whatever that the privilege exists in the case of all proceedings in their nature judicial, whether taking place in court or not. ' ' § 12. Same. Nonresident. On principle, it would seem that this rule and the immunity should apply with espe- cial force to nonresident suitors and witnesses, and while there is a marked cleavage in the judicial decisions upon this question^ the better rule and the weight of precedent confirm the privilege and exemption,^ whether the party 17 People V. Judge, 40 Mich. 729. 1 "Upon principle, as well as upon authority, this immunity . . . against them is absolute eundo, morando et redeundo. This rule is especially applicable in all Its force to suitors and wit- nesses from foreign states attend- ing upon the courts of this state . . . This immunity is one of the necessities for the administra- tion of justice, and courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process." —Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35. "The weight of authority is to the effect that the immunity is absolute from the service of any process unless the case is special." —In re Healey, 53 Vt. 694, 38 Am. Rep. 713. 2 ARK. — Martin v. Bacon, 76 Ark. 160, 113 Am. St. Rep. 81, 6 Ann. Cas. 336, 88 S. W. 863. CONN. — Wilson Sewing Machine Co. V. Wilson, 51 Conn. 595, 52 Fed. 803. GA. — Thornton v. Amer- ican Writing-Machine Co., 83 Ga. 288, 20 Am. St. Rep. 320, 9 S. E. 697. ILL.— Gregg v. Sumner, 21 111. App. 110. IND.— Wilson v. Donaldson, 117 Ind. 356, 10 Am. St. Rep. 48, 3 L. R. A. 266, 20 N. E. 250; Minnich v. Packard, 42 Ind. App. 373, 85 N. E. 787. IOWA.— Murray v. Wilcox, 122 Iowa 188, 101 Am. St. Rep. 263, 64 L. R. A. 534, 97 N. W. 1087. MD.— Bolgi- ano V. Gilbert Lock Co., 73 Md. 132, 25 Am. St. Rep. 582, 20 Atl. 788; M'ullen v. Sanborn, 79 Md. 864, 47 Am. St. Rep. 421, 25 L. R. A. 721, 29 Atl. 522; Long v. Hawken, 114 Md. 237, 42 L. R. A. (N. S.) 1101, 79 Atl. 190. MASS. — Chaffee v. Jones, 36 Mass. (19 Pick.) 260 (remaining for funeral of son) ; Thompson's Case, 122 Mass. 428, 23 Am. Rep. 370. MICH.— Weale v. Clinton Circuit Judge, 158 Mich. 565, 123 JsT. W. 31. NEB. — Linton v. Cooper, 54 Neb. 438, 69 Am. St. Rep. 727, 74 N. W. 842 (twenty-four hours, not a waiver by witness where case not finished). N. H. — Ela v. Ela, 68 N. H. 312, 36 Atl. 15. N. J. • — Harris v. Grantham, 1 N. J. L. (Coxe) 142; Halsey v. Stewart, 4 N. J. L. (1 South.) 366; Jones v. Knauss, 31 N. J. Eg. (4 Stew.) 211. N. Y.— Clark v. Grant, 2 Wend. 257 (waiting two days for report of §la APPEEtlENSION — PEIVILEGE PROM AEEEST. 19 referee, and to prepare papers for motion to set aside report) ; San- ford V. Chase, 3 Cow. 388; Seaver V. Robinson, 3 Duer. 622; Norriti V. Beach, 2 John. 294; Baurs t. Tuck«rman, 7 John. 538 (immun- ity applies to nonresidents only) ; Hopkins v. Coburn, 1 Wend. 292; Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35; Parker v. Marco, 136 N. Y. 585, 32 Am. St. Rep. 77, 20 L. R. A. 45, 32 N. E. 989 (start- ing morning after notified not needed further, witness privil- eged) ; Finch v. (Jalligher, 25 Abb. N. S. 404, 12 N. Y. Supp. 487 (re- maining two days with nothing to detain, privilege lost) ; Men-ill v. George, 23 How. Pr. 331 (privilege accorded to nonresidents only) ; Schlesiriger v. Foxwell, 1 N. Y. City Ct. Rep. 461 (exemption from arrest, but not from service of summons in civil action) ; Pope v. Negus, 14 N. Y. Civ. Proc. Rep. 406, 3 N. Y. Supp. 796 (remaining three hours after giving testimony, case not being finished, and he not knowing whether he would be recalled) ; Marks v. De L'Union Des Papeteries, 22 N. Y. Civ. Proc. Rep. 201, 19 N. Y. Supp. 470 (un- necessarily remaining two months, lost). N. C. — Hammerscald v. Rose, 52 N. C. (7 Jones L.) 629; Cooper V. Wyman, 122 N. C. 784, 65 Am. Rep. 731, 29 S. B. 947. N. D.— Hicks V. Besuchet, 7 N. D. 429, 66 Am. St. Rep. 665, 75 N. W. 793. OHIO — Barber v. Knowles, 77 Ohio St. 81, 14 L. R. A. (N. S.) 663, 82 N. E. 1065. PA.— Miles v. McCullough, 1 Binn. 77; Hayes v. Shields, 2 Yeates 222 (remaining twenty-four hours after verdict, forfeits exemption) ; Tyrone Bank V. Daly, 2 Pa. Dis. R. 558 (starting next day after verdict, not ex- empt) . R. I. — Ellis V. De Garmo, 17 R. I. 715, 19 L. R. A. 560, 24 Atl. 579; Eliason's Petition, 19 R. I. 118, 32 Atl. 166. S. D.— Fick v. Westover, 4 S. D. 233, 46 Am. St. Rep. 780, 55 N. W. 961; Malloy v. Brewer, 7 S. D. 587, 58 Am. St. Rep. 856, 64 N. W. 1120. VT.— Hall's Case, 1 Tyl. 274; In re Healey, 53 Vt. 694, 38 Am. Rep. 713. WIS.— Moletor v. Sinnen, 76 Wis. 308, 20 Am. St. Rep. 71, 7 L. R. A. 817, 44 N. W. 1099; Cameron v. Roberts, 87 Wis. 291, 41 Am. St. Rep. 43, 58 N. W. 376. FED.— Smythe v. Banks, 4 U. S. (4 Dall.) 329, 1 L. Ed. 854; Hurst's Case, 4 TJ. S. (4 Dall.) 387, 1 L. Ed. 386; Lyell v. Goodwin, 4 McL. 29, Fed. Cas. No. 8616; Bridges v. Sheldon, 7 Fed. 36; Larned v. Griffin, 12 Fed. 590; Hale V. Wharton, 76 Fed. 739; Davis V. Cleveland C. C. & St. L. R. Co., 146 Fed. 407. ENG.— Cole V. Hawkins, Andrews 275, Eng. Repr.; Walpole v. Alexander, 3 Dougl. 45, 99 Eng. Repr. 530, 26 Eng. C. L. 41; Thinder v. Williams, 4 T. R. 377. An ancient privilege, Independ- ent of statute, and liberally con- strued. — Coal, Coke & Lumber Co. V. Williamson & Co., 122 Tenn. 342, 107 S. W. 968. Need not take first train home. — Kinsey v. American Hardwood Mfg. Co., 94 N. Y. Supp. 455; Wil- bur V. Boyer, 1 W. N. C. (Pa.) 154. Remaining several days consult- ing with counsel and advising as to cause and its conduct, exempt. — Kinney v. Lant, 68 Fed. 436. Taking first or an early train home, privilege not lost. — Fidelity & Casualty Co. v. Everett, 97 Ga. 787, 25 S. E. 734; Sherman v. 20 CEIMINAL PEOCEDUEE. § 12 involved in the particular case was attending as a suitor,* Gundlach, 37 Minn. 118. 33 N. W. 549; HJcks v. Besuchet, 7 N. D. 429, 66 Am. St. Rep. 665, 75 N. W. 793; Kinney v. American Hard- wood Mfg. Co., 94 N. Y. Supp. 455. 3 ARK.— Martin v. Bacon, 76 Ark. 160, 113 Am. St. Rep. 81, 6 Ann. Cas. 336, 88 S. W. 863. IND. — Minnick v. Packard, 42 Ind. App. 373, 85 N. E. 787. MD.— t.ong v. Hawken, 114 Md. 237, 42 L. R. A. (N. S.) 1101, 79 Atl. 190. NEB.— Linton v. Cooper, 54 Neb. 440, 69 Am. St. Rep. 727, 74 N. W. 842. N. H.— Martin v. Whitney, 74 N. H. 506, 69 Atl. 888 (attending hear- ing in equity proceeding). N. J. — Halsey v. Stewart, 4 N. J. L. (1 South.) 336 (nonresident plain- tiff) ; Dugan v. Miller, 37 N. J. L. (8 Vr.) 182 (nonresident defend- ant) ; Richardson v. Smith, 74 N. J. L. 114, 65 Atl. 162. N. Y.— Per- son V. Grier, 66 N. Y. 124, 23 Am. Rep. 35, following Van Lieiiw v. Johnson, unreported; Parker v. Marco, 136 N. Y. 585, 32 Am. St. Rep. 770, 20 L. R. A. 45, 32 N. E. 989; Lucas v. Albee, 1 Den. 666; Goldsmith v. Haskell, 120 App. Div. 404, 105 N. Y. Supp. 327 (re- turning from hearing in bank- ruptcy) ; People ex rel. Hess v. Inman, 74 Hun 131, 26 N.Y. Supp. 329; Graves v. Graham, 19 Misc. 620, 44 N. Y. Supp. 415; Cake v. Haight, 30 Misc. 388, 63 N. Y. Supp. 1043. N. C— Cooper v. Wyman, 122 N. C. 787, 65 Am. St. Rep. 731, 29 S. E. 947. OHIO— Barber v. Knowles, 77 Ohio St. 81, 14 L. R. A. (N. S.) 663, 82 J>r. E. 1065. S. D.— Fisk v. West- over, 4 S. D. 235, 46 Am. St. Rep. 780, 55 N. W. 961 (civil process can not be served on nonresident attending court as suitor or wit- ness). WIS. — Cameron v. Rob- erts, 87 Wis. 291, 41 Am. St. Rep. 43, 58 N. W. 376. FED.— Hurst's Case, 4 U. S. (4 Dall.) 387, 1 L. Ed. 386; Juneau Bank v. McSpedan, 5 Biss. 64, Fed. Cas. No. 7582; Parker v. Hotchkiss, 1 Wall. Jr. 269, Fed. Cas. No. 10379 (nonresi- dent defendant) ; Davis v. Cleve- land, C. C. C. & St. L. Co., 146 Fed. 407. In Hurst Case, 4 U. S. (4 Dall.) 387, 1 L. Ed. 386, it is held that a suitor from another state who, while in attendance on court as a suitor, has been subpoenaed as a witness in another case, is priv- ileged from an arrest on execu- tion out of a state court while at his lodgings. Coming to attend to private business as well as to attend trial, exemption does not apply. — Finucane v. Warner, 194 N. Y. 163, 86 N. E. 1118. Looker-on at court-house during hearing of another case, exemp- tion does not apply. — Mclntire v. Mclntire, 5 Mack. (D. C.) 344. Remaining for own pleasure, where case not called, defendant's privilege lost. — Cake v. Haight, 30 Misc. (N. Y.) 386, 63 N. Y. Supp. 1043. Submitting to service under special agreement, service vacated upon plaintiff repudiating agree- ment. — Graves v. Graham, 19 Misc. (N. Y.) 620, 44 N. Y. Supp. 415. Sued in federal court of another state, exemption from process In such state. — Parker v. Marco, 136 12 APPREHENSION — PRIVILEGE PROM ARREST. 21 or in the capacity of a witness'' merely, or in both the N. Y. 585, 32 Am. St. Rep. 770, 20 L. R. A. 45, 32 N. E. 989. Voluntarily attending court for purposes other than trial of cause, exemption from arrest does not attach. — Monroe v. Atkinson, 125 Mich. 283, 52 L. R. A. 189, 84 N. W. 305 (owner of vessel who deliv- ered same under contract of sale free from liens, attending court on notice of purchaser that boat had been libeled, to try to arrange for discharge, subject to arrest in an- other suit). Voluntarily in state on private legal business, not exempt. — Reed v. Browning, 130 Ind. 577, 30 N. E. 704 ; Levi v. Kaufman, 12 Ind. App. 348, 39 N. E. 1045. 4 ARK. — Martin v. Bacon, 76 Ark. 160, 113 Am. St. Rep. 81, 6 Ann. Gas. 336, 88 S. W. 863. IND. — ^Wilson V. Donaldson, 117 Ind. 256, 10 Am. St. Rep. 48, 3 L. R. A. 266, 20 N. E. 250. MD.— Bolgiano V. Gilbert Lock Co., 73 Md. 134, 25 Am. St. Rep. 582, 20 Atl. 788; Long V. Hawken, 114 Md. 237, 42 L. R. A. (N. S.) 1101, 79 Atl. 190. MICH. — Mitchell v. Huron Circuit Judge, 53 Mich. 541, 19 N. W. 176. MINN. — Sherman v. Gundlach, 37 Minn. 118, 33 N. W. 549; First Nat. Bank v. Ames, 39 Minn. 179, 39 N. W. 308. NEB. — ^Palmer v. Rowan, 21 Neh. 452, 59 Am. Rep. 844, 32 N. W. 210; Linton v. Cooper, 54 Neb. 440, 69 Am. St. Rep. 727, 74 N. W. 842. N. H.— Ela v. Ela, 68 N. H. 314, 36 Atl. 15; Martin v. Whit- ney, 74 N. H. 506, 69 Atl. 888 (at- tending hearing in equity proceed- ings). N. J. — Dugan v. Miller, 37 N. J. L. (8 Vr.) 182; Massey v. Colville, 45 N. J. L. (16 Vr.) 119, 46 Am. Rep. 754; Richardson v. Smith, 74 N. J. L. 114, 65 Atl. 162. N. Y.— Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35; Matthews v. Tufts, 87 N. Y. 568; People ex rel. Ballin v. Smith, 184 N. Y. 76, 35 N. Y. Civ. Proc. Rep. 326, 76 N. E. 925 (witness in supplementary proceedings) ; Weston v. Citizen's Nat. Bank, 64 App. Div. 148, 71 N. Y. Supp. 827 (personal privilege which may be waived) ; Goldsmith V. Haskell, 120 App. Div.. 404, 105 N. Y. Supp. 327 (returning from hearing in bankruptcy) ; People ex rel. Hess v. Inman, 74 Hun 131, 26 N. Y. Supp. 329 ; Cake v. Haight, 30 Misc. 388, 63 N. Y. Supp. 1043. N. C— Cooper v. Wyman, 122 N. C. 787, 65 Am. St. Rep. 731, 29 S. B. 947. PA. — Miles v. McCullough, 1 Binn. 77;, Huddeson v. Prizer, 9 Phila. 65. S. D.— Fisk v. West- over, 4 S. D. 235, 46 Am. St. Rep. 780, '55 N. W. 961; Malloy v. Brewer, 7 S. D. 591, 58 Am. St. Rep. 586, 64 N. W. 1120. VT.— In re Healey, 58 Vt. 694, 38 Am. Rep. 713. FED.— Atchison v. Morris, 11 Fed. 582; Small v. Montgomery, 23 Fed. 707; KaufEman v. Kennedy, 25 Fed. 785. Delay in returning from Friday afternoon until Monday morning, privilege lost. — Sizer v. Hampton & B. R. & Lumber Co., 57 App. Div. (N. Y.) 390, 68 N. Y. Supp. 232. Voluntary appearance without subpoena, not exempt. — Mullen v. Sanborn, 79 Md. 364, 47 Am. St. Rep. 421, 25 L. R. A. 721, 29 Atl. 522; Balsley v. Baisley, 113 Mo. 544, 35 Am. St. Rep. 726, 21 N. W. 129; Rogers v. Bullock, 3 N. J. L. (2 Pen.) 516; Micheals v. Hain, 78 Hun (N. Y.) 500, 29 N. Y. Supp. 567. Contra: Walpole v. Alexan- 22 CRIMINAL PROCEDURE. §12 capacity of a suitor and of a witness," and extend to service of civil process not requiring taking the person into custody.* A respectable line of elecisions, however, der, 3 Dougl. 45, 99 Eng. Repr. 530, 26 Bug. C. L. 41. Witness from another state not subject to arrest in civil suit while in attendance as a witness, and while going to and returning from court. — Micheals v. Schott, How- ell N. P. (Mich.) 71. Resident of another state ar- rested while in attendance as a witness before a referee, and be- fore he had completed his testi- mony, conferred no jurisdiction on the court, and he was entitled to discharge on return day under the state statutes or on application to the supreme court, and giving bail was not a waiver of his privilege. — Dickinson v. Farwell, 71 N. H. 213, 51 Atl. 624. See Mackay v. Lewis, 7 Hun (N. Y.) 83. Contra: Tipton v. Harris, 7 Tenn. (Peck.) 414. While at lodgings awaiting the call of the suit, witness is exempt. —Hurst's Case, 4 U. S. (4 Dall.) 387, 1 L. Ed. 878. "The tendency of courts to en- large the privilege, and afford full protection to suitor and witness from all forms of process of a civil nature during their attendance be- fore any judicial tribunal, and for a reasonable time in going and re- turning; and we think the decided weight of authority has extended the privilege so far, at least, as to exempt a nonresident of another state who comes into this state as a witness to give evidence here from service of process for the commencement of a civil action against him in this state, and that the privilege protects him going and returning, provided he acts bona fide and without reasonable delay." — Bolgiano v. Gilbert Lock Co., 73 Md. 123, 25 Am. St. Rep. 582, 20 Atl. 788. 6 Wilson V. Donaldson, 117 Ind. 353, 10 Am. St. Rep. 48, 3 L. R. A. 266, 20 N. B. 250; Long v. Hawken,^ 114 Md. 239, 42 L. R. A. (N. S.) 1108, 79 Atl. 190 (defendant and, witness) ; Merrill v. George, 23 ' How. Pr. (N. Y.) 331; Wilson Sew- ing Machine Co. v. Wilson, 23 Blatchf. 51, 22 Fed. 803. Attendance as party and wit- ness, by telegram directing sheriff to seize, by attachment, goods of plaintiff, can not plead privilege from action for malicious prosecu- tion. — Nichols V. Horton, 4 McC. 567, 14 Fed. 327. Foreign plaintiff in attachment attending as witness, not privil- eged from service for maliciously bringing attachment suit. — Mullen V. Sanborn, 79 Md. 364, 47 Am. St. Rep. 421, 25 L. R. A. 721, 9 Atl. 522. Waiver of privilege by party. See Gyer v. Irwin, 4 U. S. (4 Dall.) 107, 1 L. Ed. 762; Wood v. Davis, 34 N. H. 328; Randall v. Crandall, 6 Hill (N. Y.) 342; Stewart v. Howard, 15 Barb. (N. Y.) 26; Farmer v. Robbins, 47 How. Pr. (N. Y.) 415; Green v. Bonnafon, 2 Miles (Pa.) 219; Tipton v. Harris, 7 Tenn. (Peck.) 414; Washburn v. Phelps, 24 Vt. 506. 6 See ante § 11, footnote 6. — Page V. Randall, 6 Cal. 32 (ex- empts from arrest only, not from ordinary processes of court) ; §12 APPREHENSION — PRIVILEGE FROM ARREST. 23 many of them founded on local statutory provisions, holds that nonresident suitors are amenable to the process of the courts of the state in which the trial is being held,'' though witnesses are exempt.* Dickinson v. Farwell, 7 N. H. 214, 51 Atl. 624 (giving of bail upon arrest on civil process, not waiver of exemption) ; Hemmerskold v. Rose, 52 N. C. (7 Jones L.) 629; Richardson v. Goodson, 2 Va. Ca. 381. Exemption from service of sum- mons. — IND. — ^Wilson V. Donald- son, 117 Ind. 356, 10 Am. St. Rep. 48, 3 L. R. A. 266, 20 N. E. 250 (summons will be vacated). N. J. — Massey v. Colville, 45 N. J. L. (16 Vr.) 119, 46 Am. Rep. 754 (ser- vice not void, but may be set aside by the court). N. Y. — Hopkins v. Coburn, 1 Wend. 292; Sanford v. Chase, 3 Cow. 381; Norris v. Beach, 2 John. 294; Person v. Grier, 66 N. Y. 124, 23 Am. Rep. 35; Pollard v. Union Pac. R. Co., 7 Abb. Pr. (N. S.) 70; Seaver v. Rob- inson, 3 Duer. 622; Jenkins v. Smith, 57 How. Pr. 171. VT.— In re Healey, 58 Vt. 694, 38 Am. Rep. 713. WIS. — Cameron v. Roberts, 87 Wis. 291, 41 Am. St. Rep. 43, 58 N. W. 376. ENG.— Poole v. Gould, 1 Hurl. & N. 99. 7 Nonresident suitor may be served with summons. — CAL. — Page V. Randall, 6 Cal. 32. CONN. — Bishop V. Vose, 27 Conn. 1, vir- tually overruled in Wilson Sewing Machine Co. v. Wilson, 51 Conn. 595, 22 Fed. 803. IDAHO.— Guynn V. McDaneld, 4 Idaho 605, 95 Am. St. Rep. 158, 43 Pac. 74 (defendant may serve summons on nonresi- dent plaintiff). KY. — Legrand v. Bedinger, 20 Ky. (4 T. B. Mon.) 539. MD.— Mullen v. Sanborn, 79 Md. 364, 47 Am. St. Rep. 421, 29 Atl. 522. MO.— Baisley v. Baisley, 113 Mo. 544, 35 Am. St. Rep. 726, 21 S. W. 29 (under statute). N. Y. — Bouts v. Tuckerman, 7 John. 538; Hopkins v. Coburn, 1 Wend. 292. R. I. — Baldwin v. Emerson, 16 R. I. 304, 27 Am. St. Rep. 741, 15 Atl. 83; Capwell v. Sipe, 17 R. I. 475, 33 Am. St. Rep. 890, 23 Atl. 14; Ellis V. De Garmo, 17 R. I. 715, 24 Atl. 579. S. C— Hunter v. Cleveland, 1 Brev. 167; Sadler v. Ray, 5 Rich. L. 523. TBNN.— Grove v. Campbell, 17 Tenn. (9 Yerg.) 7. 8 IND. — Wilson v. Donaldson, 117 Ind. 353, 10 Am. St. Rep. 48, 3 L. R. A. 266, 20 N. E. 250. KY.— Linn v. Hogan, 121 Ky. 629, 87 S. W. 1101 (witness may be served with notice of appeal to court of appeals while going, attending, or returning from court in obedience to summons). MD. — Bolgiano v. Gilbert Lock Co., 73 Md. 132, 25 Am. St. Rep. 582, 20 Atl. 788. MINN. — Sherman v. Gunderlach, 37 Minn. 118, 33 N. W. 549. MO.— Christian v. Williams, 111 Mo. 429, 20 S. W. 96, reversing 35 Mo. App. 297 (holding nonresident witness attending trial not exempt from service of summons in civil cause). NEB. — Linton v. Cooper, 54 Neb. 438, 69 Am. St. Rep. 727, 74 N. W. 842. N. H.— Ela v. Ela, 68 N. H. 321, 36 Atl. 15. N. J.— Dugan v. Miller, 37 N. J. L. (8 Vr.) 182; Massey v. Colville, 45 N. J. L. (16 Vr.) 119, 46 Am. Rep. 754; Mul- hearn v. Press Publishing Co., 53 24 CRIMINAL PROCEDURE. §12 Nonresident officer of foreign corporation coming into the state as a party* or as a witness^" to testify at the trial of a cause in court or before a court commissioner," or another officer or body appointed or designated by the court, is entitled to the exejaption both in his personal relation and his corporate capacity.^^ K. J. L. 153, 11 L. R. A. 101, 20 Atl. 760. N. Y. — Parker v. Marco, 136 N. y. 585, 32 Am. St. Rep. 770, 20 L. R. A. 45, 32 N. E. 989. N. C— Cooper V. Wyman, 122 N. C. 784, 65 Am. St. Rep. 731, 29 S. E. 947. N. D.— Hicks V. Besuchet, 7 N. D. 429, 66 Am. St. Rep. 665, 75 N. W. 793. R. I. — Capwell v. Sipe, 17 R. I. 475, 33 Am. St. Rep. 890, 23 Atl. 14 (unless he is a party also, in which case he is not exempt). S. D. — Malloy v. Brewer, 7 S. D. 587, 58 Am. St. Rep. 856, 64 N. W. 1120. VT.— Booream v. Wheeler, 12 Vt. 311 (holding arrest of per- son in civil suit in violation of his privilege as a witness in another case, is no cause for abating the writ). FED. — ^Atchison v. Morris, 11 Bis. 191, 11 Fed. 582; Brooks v. Farwell, 2 McCr. 220, 4 Fed. 166; KaufEman v. Kennedy, 25 Fed. 785. Voluntary attendance on sum- mons, merely, without arrest, not privileged. — See Wilder v. Welsh, 1 McAr. (D. C.) 566; Legrand v. Bedinger, 20 Ky. (4 T. B. Mon.) 530; Hopkins v. Coburn, 1 Wend. (N. Y.) 292; Pollard v. Union Pac. R. Co., 7 Abb. Pr. N. S. (N. Y.) 70; Handenbrook's Case, 8 Abb. Pr. (N. Y.) 416; Hunter v. Cleveland, 1 Brev. (S. C.) 167; Huntington v. Shultz, Harper (S. C.) 452, 18 Am. Dec. 660. 9 GA. — Fox V. Hale & N. Silver Min. Co., 108 Cal. 369, 41 Pac. 308 (superintendent attending trial of cause) ; Fidelity & Casualty Co. v. Everett, 97 Ga. 787, 25 S. E. 734 (inspector attending as witness) ; Holmes v. Nelson, 1 Phila. (Pa.) 217 (stockholder taking deposition in action pending in United States Supreme Court) ; American Wood- enware Co. v. Stem, 63 Fed. 676 (treasurer) ; Ladd Metal Co. v. American Min. Co., 152 Fed. 1008 (secretary). 10 Mulhearn v. Press Publishing Co., 53 N. J. L. 153, 11 L. R. A. 101, 21 Atl. 186 (vice president) ; Shee- han V. Bradford, B. & K. R. Co. 15 N. Y. Civ. Proc. Rep. 429, 3 N. Y. Supp. 790 (director) ; Kensey v. American Hardwood Mfg. Co., 94 N. y; Supp. 455; Western N. Y. & P. R. Co. V. Clermont & M. C. R. Co., 9 Pa. Dis. Rep. 299 (presi- dent) ; Sewanee Coal, Coke & Lumber Co. v. William & Co., 120 Tenn. 345, 107 S. W. 968. 11 Mulhearn v. Press Publishing Co., 53 N. J. L. 153, 11 L. R. A. 101, 21 Atl. 186. 12 Nonresident officer of domes- tic corporation, privilege does not attach to, and service on him is valid service on corporation. — Brean v. Miller Lumber Co., 83 S. C. 221, 24 L. R. A. (N. S.) 276, 65 S. E. 214. Attendance on judicial sale under decree of federal court, no exemption. — Greenleaf v. People's Bank, 133 N. C. 293, 98 Am. St. Rep. 709, 63 L. R. A. 499, 45 S. E. 638. §13 APPREHENSION — ^PRmLEGE FROM ARREST. 25 Passing through state on way to attend court in another juris(fiction, both suitors and witnesses are privileged from arrest^* or the service of civil process issuing out of the courts of the state traversed,'* is the doctrine of the weight of decision. Privilege as affected by route taken or time consumed in going to or returning from court, as affecting the privilege and exemption. A reasonable latitude is allowed and the most direct route is not required to be taken ; a reasonable deviation or reasonable delays re allowed, provided, only, they do not arise m carrymg out a purpose entirely distinct from going to, attending, and returning from court.-® § 13. Judges, attobnets and jusobs in case. A judge,"' presiding at a cause pending in his court, is given the full isHolyoke & South Hadley Falls Ice Co. v. Amsden, 21 L. R. A. 319, 55 Fed. 593 (a case of first impression) ; Crank v. Wheaton, 23 Lane. L. Rev. (Pa.) 206 (going to attend suit) ; Crank v. Wheaton, 15 Pa. Dis. R. 721 (returning from attendance). 14 Barber v. Knowles, 77 Ohio St. 81, 14 L. R. A. (N. S.) 663, 82 N. E. 1065, and cases cited. 15 Barber v. Knowles, 77 Ohio St. 81, 14 L. R. A. (N. S.) 663, 82 N. E. 1065. As to deviation and delays, see Tyrone Bank v. Doty, 2 Pa. Dis. Rep. 558 (going most direct route next day after verdict, exempt); Ex parte Hall, 1 Tyl. (Vt.) 274 (detained by storm until next day, and compelled to go twenty miles out of his way, witness does not lose privilege) ; Ex parte Clarke, 2 Deacon & C. 99 (wit- ness taking direct route to boat for home, going into another street for a person who was to accompany him on the boat, and remaining at the house until the arrival of the boat, did not forfeit privilege). Stopping to announce to counsel on opposite side that nothing would be done in the case, is not a deviation. — Salinger v Adler, 2 Robt. (N. Y.) 704. J. Judges a^e exempt from arrest in civil cases during their attend- ance at court. — Com. v. Ronald, 4 Call (Va.) 97. But may be served with process in a civil action when at home or not sitting in circuit. — Lyell ■" Goodwin, 4 McL 29, Fed. Cas. No. 8616. Judge of supreme court of United States arrested on capias ad respondendum, in a case in which the federal court has no jurisdiction, is not entitled to be discharged on common bail. — Gratz 26 CRIMINAL PROCEDURE. §13 privilege.* At common law the full privilege and immu- nity were extended to attorneys,^ also, and have been extended to them in some jurisdictions in this country;* but in other jurisdictions it has been said that an attor- V. Wilson, 6 N. J. L. (1 Halst.) 419. Justice of the peace can not be served with summons while he is holding court. — Cameron v. Rob- erts, 87 Wis 291, 41 Am. St. Rep. 43, 58 N. W. 376. 2 Judge not liable to be arrested by process proceeding out of own court, but must be proceeded against by bill. — In re Livingston, 8 John. (N. Y.) 351. Judges privileged from arrest, also exempt from service of civil process in civil suit, where about to set out on his circuit. — Lyell v. Goodwin, 4 McL. 29, Fed. Cas. No. 8616. Officers of court, supreme court and common pleas, chancery courts, and other inferior courts, are liable to arrest on mesne proc- ess, except during actual sitting of their respective courts, and may be held to bail like other persons. — Secore v. Bell, 18 John. (N. Y.) 52 (under act April 1813). 3 Hoffman v. Circuit Judge, 113 Mich. 109, 67 Am. St. Rep. 458, 38 L. R. A. 663, 71 N. W. 480; Mat- thews V. Tufts, 87 N. Y. 568 (at- torney privileged from process while attending bankruptcy pro- ceedings) ; Com, V. Ronald, 4 Call (Va.) 97 (privileged from service of process in civil suits, while at- tending court) ; Central Trust Co. V. Milwaukee Street R. Co., 74 Fed. 442 (nonresident attorney attend- ing the court in another county). In Long's Case, 2 Mod. 181, 86 Eng. Repr. 1012, an attorney ar- rested near court was discharged, on question of privilege, by giving common bail. Foundation of the rule is "the impolicy of permitting an act which will deter suitors or wit- nesses from attending courts," and this reason applies with equal force to an attorney in the case as to suitors or witnesses. — Hoffman V. Circuit Judge, 113 Mich. 109, 67 Am. St. Rep. 458, 38 L. R. A. 663, 71 N. W. 480. Blackstone says that "clerks, attorneys, and all other persons attending the courts of justice (for attorneys, being officers of the court, are always supposed to be there attending), are not liable to be arrested by the ordinary proc- ess of the court, but must be sued by bill (called usually a bill of privilege), as being personally present in court). — 3 Bl. Com. 289. 4 Privilege from arrest while at- tending, going to, and returning from court (111. Rev. Stats, c. 12, § 8) does not exempt from service in civil suit while in attendance on court. — Robinson v. Lincoln, 27 Fed. 342 (foreign attorney has no greater privilege). Process out of a justice's court against an attorney, and served during term of court in which he is an attorney or counselor, abated, though not returnable until after the end of the term. — Gilbert v. Vanderpool, 15 John. (N. Y.) 242. §14 APPREHENSION — PRIVILEGE FROM ARREST. 27 ney is not entitled to immunity.^ In accordance with the latter doctrine it has been held that a foreign attorney coming into the state and to attend on the courts in the state, in the interests of his client, is not entitled to claim a privilege of exemption.® Jurors at common law are entitled to the same privi- leges and exemptions as witnesses in the case.'' § 14. Attendance on fedebal cotjet. On principle, and carrying out the spirit and purpose of the privilege, persons in attendance on a federal court sitting in a state other than that of their residence, should be entitled to the same privileges and exemptions from arrest and other processes out of state courts, as they are in the 5 Mr. Justice Clark, in dissent- ing opinion, in McNeill v. Duban & C. R. Co., 135 N. C. 721, 67 L. R. A. 245, 47 S. E. 765, says: "The court in Greenleaf v. People's Bank, 133 N. C. 292, 98 Am. St. Rep. 709, 63 L. ft. A. 499, 45 S. E. 638, held that lawyers and judges were not a privileged class." Traveling from one county to another in practice of his profes- sion, not exempt from service of process. — First Nat. Bank v. Doty, 12 Pa. Co. Ct. Rep. 287, 2 Pa. Dist. Rep. 558 (though sworn as a wit- ness in case in which engaged). Attorney practicing in A county, but residing in B county, is sub- ject to service of summons in A county while attending trial of cause. — Parker Sav. Bank v. Mc- Candless, 6 Pa. Co. Ct. Rep. 327. Illinois Statute exempts attor- neys from arrest while attending court, but does not exempt either a resident or a nonresident attor- ney from the service of a summons in a civil action while he is in at- tendance upon a court. — Robbins V. Lincoln, 27 Fed. 342. 6 Greenleaf v. People's Bank, 133 N. C. 200, 98 Am. St. Rep. 709, 63 L. R. A. 903, 45 S. E. 638. T Page V. Randall, 6 Cal. 32 (exempting of jurors from arrest, not from ordinary processes of court) ; Brookes v. Chelsey, 4 Har. & McH. (Md.) 295; In re McNiel, 3 Mass. 288; Bower v. Tato, 115 Mich. 368, 73 N. W. 421 (juror's privilege from arrest is a personal one, going not to the validity of process, but to that of the ser- vice) ; United States v. Edme, 9 Serg. & R. (Pa) 151; Grove v. Campbell, 17 Tenn. (9 Yerg.) 7 (exempt from arrest, but not from service of summons not requiring arrest) . Statute prohibiting arrest, in civil cases, of persons attending court as jurors or as witnesses, is not an implied repeal of common- law exemption. — Cooper v. Wy- man, 122 N. C. 784, 65 Am. St. Rep. 731, 29 S. E. 947. 28 CRIMINAL PROCEDURE. § § 15, 16 ease of causes pending in the state courts ; and such privi- lege of exemption has been applied both to the parties to actions^ and to their witnesses in the cause f and this is thought to be the better rule, though there is a respec- table line of authority emanating principally from jur- isdictions in which the common-law privilege is only partially conferred, holding that a nonresident is not exempt from service of process in a civil suit against him while in attendance upon a federal court Avhile in the state ;^ but no case has been found which goes to the length of upholding an arrest under such circumstances.' § 15. Ambassadoks. Foreign ministers and their fam-, ilies are not only privileged from arrest in ci\dl cases but also from apprehension on criminal charges.^ § 16. Army officees and soldiers. Upon the same prin- ciples of public policy and general welfare of the state, and by statutory enactment in many of the states, per- sons engaged in the military service, whether in the state militia or in the regular army, are exempt from arrest in civil causes,^ as well as from the service of process in a 1 Sewanee Coal, Coke & Land. Witness coming into state in Co. V. Williams & Co., 120 Tenn. obedience to subpoena of federal 345, 107 S. W. 968; Holmes v. Nel- court, exempt from apprehension son, 1 Phila. (Pa.) 217; Parker on state criminal process. — United V. Hotcbkiss, 1 Wall. Jr. 269 Fed. States v. Baird, 85 Fed. 633. Cas. No. 10739; Ex parte Hurst, 1 3 Gwynn v. McDaneld, 4 Idaho Wash. C. C. 186, Fed. Cas. No. 6924; 605, 96 Am. St. Rep. 158, 43 Pac. 74 Bridges v. Sheldon, 7 Fed. 17, 42; i Comte de Garden, Traite com- Ex parte Schulenburg, 25 Fed. 211 piet de diplomatie; Holtzend. En- (proper method of procedure, cycl. i. 798; United States v. Ben where service in violation of priv- ner, Baldw. C. C. 234, Fed. Cas. No ilege, discussed). 14568; United States v. Lafontaine Attending sale under federai 4 Cr. C. C. 173, Fed. Cas. No. court decree, no exemption. — 15550; Cabrera, Ex parte, 1 Wash. Greenleaf v. People's Bank, 133 N. C. C. 232, Fed. Cas. No. 2278. C. 293, 98 Am. St. Rep. 709, 63 L. R. i in re Roode, 2 Wheeler's Cr. A. 499, 45 S. E. 638. Cas. 541 (act congress, March 16; 2 Sewanee Coal, Coke & Land 1812, §23). Co. V Williams & Co., 120 Tenn. Attendance required, in order to 345, 107 S. W. 968. put within immunity. — Morgan v. §16 APPREHENSION PRIVILEGE FROM ARREST. 29 civil action while in actual service or when going to, or returning^ from any muster, state encampment or mili- tary meeting.® This exemption is a personal privilege Eckart, 1 U. S. (1 Dall.) 295, 1 L. Ed. 144 (lieutenant of county vol- untarily appearing before execu- tive council to solicit commission, not exempt). Commissioned officer not ex- empted from arrest on civil proc- esses by act of congress, March. 3, 1799, military code, § 19; not by state statute. — Ex parte Harlan, 39 Ala. 563. See White v. Lowther, 3 Ga. 397 (lieutenant in company raised under act of con- gress, not exempt from arrest on civil process) ; Moses v. Mellett, 3 Strob. (S. C.) 210. Debtor already under arrest not relieved by enlistment, under act of congress Dec. 12, 1812. — Ex parte Field, 5 Hall. L,. J. (Pa.) 474. Exemption from time sworn in, only, and not from time soldier goes to be sworn in. — Rank v. Wegner, 1 Pears. (Pa.) 532. Mustering into service of United States militiaman does not lose his privilege to exemption under state statute. — People v. Campbell, 40 N. Y. 133 (laws 1858, c. 129, §17). Noncommissioned officers and privates in voluntary service of army, are exempt from arrest for debt. — Moses v. Mellett, 3 Strob. (S. C.) 210. Paymaster appointed by Presi- dent under act of congress, not within exemption of Pennsylvania act April 2, 1822, or act of April 18, 1861. — .Mechanics' Sav. Bank v. Sallode, 1 Woodw. Dec. (Pa.) 23. Soldier on furlough from army may be apprehended by state au- thorities ; ' application to the com- manding officer for his delivery is not necessary. — Ex parte Roberts, 16 Iowa 600. 2 IVIilitiaman out of state, can not claim exemption of statutes of state of residence, on the ground that he is on his way under orders of commanding officer to attend company meeting, for escort duty, within the state. — Manchester v. Manchester, 6 R. I. 127. Public reception at which mili- tiamen attend at call of governor, not within exemption. — Kirkpat- rick V. Irvy, 3 McC. (S. C.) 205. Pennsylvania act 1887, §§ 26, 127, regulating national guard, does not exempt military men returning from annual encampment from ser- vice of writ of scire facias. — Land Title & Trust Co. v. Crump, 16 Pa. Co. Ct. Rep. 593. Though this act does not ex- pressly exempt militiamen from civil process, while on military duty on the ground of public policy, they are exempt from service o£ process in a county other than that of their residence, while go- ing to or returning from an au- thorized encampment. — Land Title & Trust Co. V. Rambo, 174 Pa. St. 566, 34 Atl. 207. 3 ALA. — Greening v. Sheffield, Minor 276 (service of capias, though not requiring bail, while returning from military muster, void). MINN. — ^Williams v. Mc- Grade, 13 Minn. (Gil. 165) 174, (act 1865,0.71). N. C. — Murphy v.Mc- 30 CRIMINAL PEOCEDUEE. §17 which must be technically claimed and in the proper manner.* Apprehension on criminal charge is not within the priv- ilege and exemption f but a court, it seems, will not issue a warrant of arrest for a military man charged with the commission of murder on the high seas or upon a naval vessel, pending an investigation by a court of inquiry instituted by the secretary of the navy. § 17. Consuls. The privileges and exemptions which ambassadors and foreign ministers enjoy do not extend to consuls.^ They are subject to apprehension and prose- cution for a misdemeanor,^ and to indictment and prose- cution for a felony, such as sending anonymous and Combs, 33 N. C. (11 Ired.) 274. PA. — Wright V. Quinn, 1 Yates 163 (act January 2, 1878, although war with Great Britain had ceased) ; Breitenhach v. Bush, 44 Pa. St. 313, 84 Am. Dec. 442 (levari facias sur mortgage, within immunity of act April 18, 1861); Coxe's Exr. v. Martin, 44 Pa. St. 322 (includes scire facias on mortgage) ; Drexel V. Miller, 49 Pa. St. 246 (scire facias on mortgage within exemption of act April 18, 1861); Davidson v. Barclay, 63 Pa. St. 406 (act April 18, 1861) ; Land Title & Trust Co. V. Rambo, 174 Pa. St. 566, 34 Atl. 207 (act April 13, 1887) ; Heck v. Fink, 1 Woodw. Dec. 102 (act 1822, § 70, service on members of com- pany while on march under or- ders). S. C. — ^Hickman v. Arm- strong, 2 Brev. 176 ; Gregg v. Sum- mers, 1 McC. 461 (act 1794 em- braces not only process requiring bail, but any other process). 4 Williams v. McGrade, 13 Minn. 174 (Gil. 165) ; Hunter v. Weidner, 1 Woodw. Dec. (Pa.) 6. Compare: Hickman v. Arm- strong, 2 Brev. (S. C.) 176, holding that where process served while attending military muster, a judg- ment rendered by default was void. 6 United States v. Mackenzie, 1 N. Y. Leg. Obs. 227, Fed. Cas. No. 15690. 1 United States v. Ravara, 2 U. S. (2 Dall.) 297, 299, 1 L. Ed. 388, Fed. Cas. No. 16122, Whart. St. Tr. 90. Trading counsel is liable to the ordinary processes of court in all matters that concern his trade, the same as an ordinary merchant. — Scott V. Hobe, 108 Wis. 239, 84 N. W. 181. 2 State V. De La Foste, 2 Nott. & McC. (S. C.) 217; United States v. Ravara, 2 U. S. (2 Dall.) 297, 1 L. Ed. 388, Fed. Cas. No. 16122, Whar- ton's St. Tr. 90. §18 APPREHENSION — PRIVILEGE FROM ARREST, 31 threatening letters,* for rape,* and other similar offenses against the criminal laws of the country. § 18. Members op congress and lbgislattjbes. Free- dom of legislators, state and federal, from arrest in civil proceedings or from the service of a simple process rests upon the highest grounds of public policy.^ By provision of the federal constitution* senators and representatives in congress will, "in all cases, except treason, felony, or breach of the peace, ' '* be privileged from arrest* during their attendance at their respective legislative halls and also while going to and returning from the same;® and 3 United States v. Ravara, 2 U. S. (2 Dall.) 299 note, 1 L. Ed. 388 (without the note), Fed. Cas. No. 16122a. 4 Com. V. KosIofE, 5 Serg. & R. (Pa.) 545. 1 Lord Denman says: "The pro- ceedings of parliament would be liable to continual interruption at the pleasure of individuals, if every one who claimed to be a cred- itor could restrain the liberty of the members." — Stockdale v. Han- sard, 9 Ad. & E. 1, 114, 112 Eng. Repr. 1112, 1156, 36 Eng. C. L,. 1, 81. See, also, Cassidy v. Steuart, 2 Man. & Gr. 437, 133 Eng. Repr. 817, 40 Eng. C. L. 680. 2 Art. 1, § 6. In Bolton v. Martin, I'TT. S. (1 Dall.) 296, 1 L. Ed. 144, a member of the state convention met to con- sider the United States constitu- tion was held to be privileged from arrest, or the service of a sum- mons in a civil action, while the convention was in session, and for a reasonable period before and after its close, on the ground of privilege of parliament. See criti- cism of the doctrine in Berlet v. Weary, 67 Neb. 75, 81-82, 108 Am. St. Rep. 616, 2 Ann. Cas. 610, 60 L. R. A. 609, 93 N. W. 238. 3 Congressman not privileged from apprehension on a charge that he is about to fight a duel. — United States v. Wise, Hayw. & H. 82, Fed. Cas. No. 16746a. Privilege does not protect from apprehension on a charge of prob- able cause to believe a breach of peace is about to be committed. — United States v. Wise, Hayw. & H. 82, Fed. Cas. No. 16746a. 4 As to discharge by reason of subsequent privilege, where per- son arrested before privilege at- tached is surrendered by his bail after privilege attached. — Coxe v. McClenachan, 3 U. S. (3 Dall.) 478, 1 L. Ed. 687. 6 Privilege applies while attend- ing congress, only, or actually on journey to or returning from the seat of government. — Lewis v. El- mendorf, 2 John. Cas. (N. Y.) 222. Time going and returning in at- tendance on session is not limited to the exact number of days re- quired for the journey, or the line 32 CRIMINAL PROCEDURE. §18 this privilege and immunity extend to delegates from the territories,*^ as well as to persons duly commissioned, although congress subsequently decides that the party commissioned was not entitled to the seat,'' as well as to senators and representatives. It has been held that this exemption from arrest also extends to exemptions from trial. ^ Civil suits and processes not accompanied by the arrest of the person, stand on a different footing and, while there is a hopeless conflict in the decisions,^ the weight of authority and better doctrine is that they are- not within the privileges and exemptions,^" although a of travel to the most direct route. — Miner v. Markham, 28 Fed. 387. The privilege is restricted to a reasonable time for making the journey; and it has been held that forty days before the session opens or after it closes is not a reason- able time. — Hoppin v. Jenckes, 8 R. I. 453, 5 Am. Rep. 597. 6 Doty v. Strong, 1 Finn. (Wis.) 84, Burnett 158. 7 Dutton V. Halstead, 2 Clark (Pa.) 450, 2 Pa. L,. J. 237 (delaying in return through lack of funds will not affect the privilege). 8 Doty V. Strong, 1 Pinn. (Wis.) 84, Burnett 158. Continuance of pending cause in court can not be claimed as a mat- ter of privilege by a member of congress. — ^Nones v. Edsall, 1 Wall. Jr. 189, Fed. Cas. No. 10290. 9 Privilege from arrest, exemp- tion from suit or any civil process ■which may interfere with public business, during term of privilege. — Anderson v. Rountree, 1 Pinn. (Wis.) 115 (by common law ex- empt from service of civil process during attendance). 10 D. C. — Merrick v. Giddings, McA. & M. (D. C.) 55; Howard v. Citizens' Bank & Trust Co., 12 App. (D. C.) 222. KY.— Catlett v. Morton, 14 Ky. (4 Litt.) 122; Johnson v. Offcutt, 61 Ky. (4 Met.) 20. MICH. — Case v. Rorabacher, 15 Mich. 537. NEB.— Berlet v. Weary, 67 Neb. 75, 108 Am. St. Rep. 619, 2 Ann. Cas. 610, 60 L. R. A. 609, 93 N. W. 238 (not exempt from service of civil process not requiring arrest) . N. H. — Bartlett V. Blair, 68 N. H. 232, 38 Atl. 1004. S. C— Worth V. Norton, 56 S. C. 56, 76 Am. St. Rep. 524, 45 L. R. A. 563, 33 S. E. 792 (exemption of members of congress from arrest while in session, or while going to and returning therefrom, does not extend to service of process in a civil action, nor exempt them from such service while absent or leav- ing from congress attending to pri- vate business while congress is in session). TEX. — Gentry v. Grif- fith, 27 Tex. 461 (not privileged from service of process in civil case under the constitutional pro- vision exempting from arrest). VA. — McPherson v. Nesmith, 3 §18 APPREHENSION — PRI\'II.EGE FROM ARREST. 33 someAvhat recent case" holds that the privilege extends to an exemption from service of process unaccompanied by an arrest while on the way to attend session of con- gress. Apprehension on a criminal charge is not within the privilege and exemption of legislators ;^^ and it has been held that an indictment on a criininal charge by a fed- eraP* or by a state^* court is not in violence of the con- gressional privilege, where not accompanied or followed by an apprehension of the person; and this being true, there would seem to be no valid reason for an exemp- tion from service of process in a criminal cause where the person is not taken into custody.^* Legislators of state are entitled to the "privilege of parliament,'"® and by constitution in many of the states, the privilege has been enlarged so as to exempt them, Gratt. (Va.) 237 (not privileged from issuing of process, but from service upon their persons, ser- vants or estates, during the limita- tion.—! Rev. Code, c. 51, §31). FED. — ^Kimberly v. Butler, 16 Pittsb. Leg. .T. 11, 3 Am. L. Rev. 777, 1 Chicago L. News 245, 2 Bait. Law Trans. 276, Fed. Cas. No. 7777. Service of process upon may be made the same as upon any other person, except that there can not be an arrest in a civil action while going or returning from a session, or while in attendance thereon. — Merrick v. Giddings, McA. & M. 55. Not privileged from service in civil case not requiring bail, either under Kentucky constitution or act Dec. 17, 1795.— Catlett v. Morton, 14 Ky. (4 Litt.) 122; Johnson v, Ofeutt, 61 Ky. (4 Met.) 19. 11 Exempt from service of proc- ess, though not accompanied by aifest of person, while on his I. Crim. Proc. — 3 way to attend congress. — Miner v. Markham, 28 Fed. 387. 12 Scott v. Curtis, 27 Vt. 762. 13 Williamson v. United States, 207 V. S. 425, 52 L. R. A. 278, 28 Supp. Ct. Rep. 163 (indictment while in the hbuse of representa- tives, under TJ. S. Rev. Stats., § 5440, in conspiring to commit the crime of subornation of perjury). See United States v. Wise, Hayw. & H. 82, Fed. Cas. No. 16746a. 14 State V. Smalls, 11 S. C. 262. 15 United States v. Cooper, 4 U. S. (4 Dall.) 341. 1 L. Ed. 859, Fed. Cas. No. 14861; Respublica v. Duane, 4 Yeates (Pa.) 347. Legislator on way to state capi- tol to attend session, not exempt from arrest for embezzlement. — Com. V. Keeper of Jail, 4 W. N. C. (Pa.) 540, 1 Del. Co. Rep. 215. 16 Doctrine of Bolton v. Martin, 1 U. S. (1 Dall.) 296, 1 L. Ed. 144. has been applied to state legisla- tors in Gyer v. Irwin, 4 U. S. (4 34: CEIMINAL PROCEDUEB. §19 not only from arrest, but from any service of civil process also,^'' such as in Connecticut,^* Kansas," South Caro- lina,^" and Virginia ;^^ but in the majority of the states the exemption is merely the common-law privilege, with- out the immunity from service of process in civil causes where an arrest of the person does not accompany the service.^^ But the privilege from arrest in civil cases does not extend to apprehension in criminal cases.^^ § 19. Officers and employees of the government. The privilege and immunity of certain officers from Dall.) 107, 1 L. Ed. 762; Gray v. Sill, 13 W. N. C. (Pa.) 59, and Ross V. Brown, 7 Pa. Co. Ct. Rep. 142. 17 Cooley's Const. Dim. (5tli ed.) 161. 18 King V. Coit, 4 Day (Conn.) 129. 19 Service of process during ses- sion, void under Kansas constitu- tion. — Cook V. Senior, 3 Kan. App. 278, 45 Pac. 126 (member attend- ing session trying impeachment, is privileged). 20 Tillinghast v. Carr, 4 McC. L. (S. C.) 1. 21 McPherson v. Nesmith, 3 Gratt. (Va.) 237 (exemption from "all process whatsoever," did not prevent .issuance of writ, but sus- pended service during the privi- lege, only). Courts do not notice, ex ofScio, the privilege, and timely advan- tage must be taken of immunity. — Prentis v. Com., 1 Rand. (Va.) 697, 16 Am. Dec. 782. This was the common-law and true rule. — Chase v. Fisher, 16 Maine 136; McPherson v. Nesmith, 3 Gratt. (Va.) 241; Gyer v. Irwin, 4 U. S. (4 Dall.) 107, 1 L. Ed. 762; Lyell V. Goodwin, 4 McL. 29, Fed. Cas. No. 8616; Holiday v. Pitt, 2 Str. 985, 93 Eng. Repr. 984. 22 Catlett V. Morton, 14 Ky. (4 Litt.) 122 (legislators subject to any process except arrest, same as other citizens), affirmed Johnson V. Offutt, 61 Ky. (4 Met.) 19; Thodes V. Walsh, 55 Minn. 542, 23 L. R. A. 632, 57 N. W. 213 (ser- vice of summons during session) ; State ex rel. Benton v. Elder, 31 Neb. 169, 10 L. R. A. 796, 47 N. W. 710; Berlet v. Weary, 67 Neb. 75, 108 Am. St. Rep. 616, 2 Ann. Cas. 610, 60 L. R. A. 609, 93 N. W. 238. Legislators, in a proper case, may be served with civil process while at seat of government. — Peters v. League, 13 Md. 58, 71 Am. Dec. 622 (member city coun- cil held subject to attachment while in discharge of his duties) ; Gentry v. Griffith, 27 Tex. 461 (cita- tion in civil suit). Contra: Orth v. McCook, 2 Ohio Dec. 624, 4 West. L. Month. 215 (legislators can not be served at seat of government, though joined with others served at their resi- dences). 23 Supra foot notes 12-15, this section; Com. v. Keeper of Jail, 13 Phila. (Pa.) 273. §19 APPKEHENSION PRIVILEGE FROM ARREST. 35 arrest have already been discussed.^ This privilege and immunity extends to election officers,^ but not to other officers and employees of the federaP or state* govern- ment. Apprehension on charge of crime is not within the privilege from arrest belonging to certain officers of our government privileged from arrest in civil proceedings, because that privilege and exemption do not extend to criminal prosecution.^ 1 See ante, §§ 13-18. 2 Election officers exempt from arrest on election day, at polls and going to and returning from polls, except for treasoa, felony or breach of the peace. In re Election Oflacers, 1 Brewst. (Pa.) 182 (can not be arrested for re- jecting vote). 3 On process issued out of state court on a charge of felony. — United States v. Kirby, 74 TJ. S. (7 Wall.) 482, 19 L. Ed. 278. Custom officers, not exempt from arrest under Rev. Stat., § 5447. — Ex parte Murray, 35 Fed. 496. IVlail carrier, at the time engaged in transporting mail, is liable to apprehension on warrant charging an offense against the laws of the state, even though the offense is not a felony, but merely a viola- tion of the liquor laws. — Penny v. Walker, 64 Maine 430, 18 Am. Rep. 269. Driver of mail carriage may be apprehended for fast driving through crowded street. — United States v. Hart, Pet. C. C. 390, Fed. Cas. No. 15316. Police officers — United States marslial not exempt from arrest and imprisonment in civil case. — Parsons v. Stanton, 2 Day (Conn.) 300; Wilcox v. Buckingham, 2 Day (Conn.) 304. 4 Slieriff, not privileged from ar- rest in civil action and imprison- ment same as any other person. — George v. Fellows, 58 N. H. 494; Day V. Brett, 6 John. (N. Y.) 222; Hill V. Lott, 10 How. Pr. (N. Y.) 46. Slieriff-elect, not exempt while soliciting his commission before the executive council who have not required his attendance. — Mor- gan V. Eckart, 1 U. S. (1 Dall.) 295, 1 L. Ed. 144. Deputy sheriff, not exempt from arrest on civil process. — George v. Fellows, 58 N. H. 494. Superintendent of police of New York exempt from arrest.— Hart v. Kennedy, 14 Abb. Pr. 432; 23 How. Pr. 417 (Metropolitan police act, §34). Police captain is exempt from arrest under the same act. — Id. Police patrolman subject to ar- rest, where not on duty, under the same act. Id.; Coxson v. Doland, 2 Daly 66 (Metropolitan police act, § 34, as amended Stats. 1864, c. 403). B See United States v. Kirby, 74 U. S. (7 Wall.) 482, 19 L. Ed. 278; Penny v. Walker, 64 Mo. 430. 36 CRIMINAL PROCEDURE. §20 § 20. Defendants and witnesses* in cbiminal cases. It has been said that there is a distinction between par- ties in a civil suit and defendants in a criminal case with respect to privilege, in that parties to a civil suit appear in court voluntarily and should be encouraged to appear by immunity from arrest; whereas defendants in criminal cases appear involuntarily only, and need not be encouraged f and that for this reason the privilege and exemption do not extend to criminal cases,^ as where the defendant has been brought into the state as a fugi- tive from justice,* taken from one county to another or 1 Smythe v. Banks, 4 U. S. (4 Dall.) 239, l' L. Ed. 854 (privileged from arrest for a reasonable time).- Witness coming into state in obedience to a subpoena from a federal court, Is exempt from ap- prehension on state criminal proc- ess. — United States v. Baird, 8S Fed. 633. 2 Byler v. Jones, 22 Mo. App. 623; Moore v. Greene, 73 N. C. 394, 21 Am. Rep. 470; Williams v. Ba- con, 10 Wend. (N. Y.) 636; Com. V. Daniel, 4 Clark (Pa.) 49, 6 Pa. L. J. 330; Addlcks v. Bush, 1 Phila. (Pa.) 19; Key v. Jetto, 1 Plttsb. (Pa.) 117; Scott v, Curtis, 27 Vt. 762. "There is no public policy to en- courage the latter." — Clark, J., in White V. Underwood, 125 N. C. 25, 74 Am. St. Rep. 630, 46 L. R. A. 706, 34 S. C. 104. See Netograph Mfg. Co. V. Scrugham, 197 N. Y. 377, 134 Am. St. Rep. 886, 27 L. R. A. (N. S.) 333, 90 N. E. 962. Foundation of distinction by Rodman, J., in Moore v. Greene, 73 N. C. 394, 21 Am. Rep. 470, is placed on the language of Lord Campbell (quoted in foot note 8, this section). In Hare v. Hyde, 16 Q. B. (16 Ad. & E. N. S.) 394, 71 Eng. C. L. 393, 20 L. J. Q. B. N. S. 185, 15 Jur. 315; but it is mani- fest that the defendant in that case waived his privilege by "re- maining as a spectator," after he was acquitted and ordered dis- charged. If he had immediately gone about his business of return Ing to his home, the decision of the court might have been differ- ent when acting on his arrest in a civil case. 3 Wood V. Boyle, 177 Pa, St. 620, 55 Am. St. Rep. 747, 35 Atl. 853. 4 ALA. — Ex parte Hardy, 68 Ala. 303. KAN.— In re Wheeler, 34 Kan. 96, 8 Pac. 276. NEB.— In re Walker, 61 Neb. 803, 86 N. W. 510. N. J.— Rutledge v. Knauss, 73 N. J. L. 399, 64 Atl. 988. N. Y.— Wil- liams V. Bacon, 10 Wend. 636; Adriance v. Legrave, 59 N. Y. 110, 17 Am. Rep. 317; People ex rel. Post V. Cross, 135 N. Y. 536, 31 Am. St. Rep. 850, 32 N. E. 246; Slade V. Joseph, 5 Daly 187; Bank of Metropolis v. White, 26 Misc. 505, 57 N. Y. Supp. 460. PA.— Com. V. Daniel, 4 Clark 49. In IVIichlgan a person brought Into the state on a charge of crime § 20 APPREHENSION — PftlVIIiEGE FROM ARREST. 87 brought within the territorial jurisdiction^ of the court" is exempt from arrest in civil pro- ceedings until he has had a rea- sonable time in which to leave the state. — Weale v. Clinton Circuit Judge, 158 Mich. 565, 123 N. W. 31. In Ohio, in Compton v. Wilder, 40 Ohio St. 130, a resident of Penn- sylvania was extradited upon re- quisition by the governor of Ohio, on the application' of C, and after he had entered Into a recognizance to appear before the county court at the next term, and before he had an opportvmity to return to his home in Pennsylvania, a sum- mons and order of arrest were is- sued and served in a civil action brought by C, and the service was held to have been properly set aside. A person indicted and brought Into the jurisdiction by extradi- tion, waives his privilege from ar- rest in a civil action by filing a motion for ball, which raises an issue of fact, not only as to his right to bail, but also as to a com- plete defense to the action. — ^White V. Marshall, 23 Ohio C. I. C. C. T. R. 376. In Wisconsin, in the case of Moletor v. Slnnen, 76 Wis. 308, 20 Am. St. Rep. 71, 7 L. R. A. 817, 41 N. W. 199, it is held that a per- son brought into the state upon a requisition, who Is discharged on hearing, is not subject to an ar- rest in a civil action until after a reasonable time has elapsed for his departure. 5 Charged with crime in another county, privileged from arrest in a civil action in such other county until prisoner has had a reason- able time for his return to his home county.^ — Byler v. Jones, 22 Mo. App. 623; Palmer v. Rowan, 21 Neb. 452, 59 Am. Rep. 844, 32 N. W. 210; Walker v. Stevens, 52 Neb. 653, 72 N. W. 1038; Baldwin V. Branch Circuit Judge, 48 Mich. 525, 12 N. W. 686 (exempt from arrest on a civil warrant for the same matter at the suit prosecu- tor, only). In Chaffee v. Jones, 36 Mass. (19 Pick.) 261, where the party pleaded his privilege in an abate- ment of the action, it was held that the privilege had been waived. 6 Weale v. Clinton Circuit Judge, 158 Mich. 565, 123 N. W. 31 (ar- rest for alienation of affections of relator's wife) ; Netograph Mfg. Co. V. Scrugham, 197 N. Y. 377, 134 Am. St. Rep. 886, 27 L. R. A. (N. S.) 339, 90 N. E. 962 (nonresi- dent defendant coming into state to attend trial of Indictment against him, without privilege or exemption) . Brought by criminal process with the jurisdiction of the court, per- son Is privileged. ARK. — Martin V. Bacon, 76 Ark. 161, 113 Am. St Rep. 81, 6 Ann. Cas. 336, 88 S. W. 863 (coming into state to attend court to avoid forfeiture of bail bond, exempt) . IOWA — Murray v. Wilcox, 122 Iowa 188, 101 Am. St. Rep. 263, 64 L. R. A. 534, 97 N. W. 1087 (coming into the state to at- tend trial of indictment In accord- ance with obligations of bail bond, and as a witness, exempt). MO. — Byler v. Jones, 79 Mo. 261; Chris- tian V. Williams, 111 Mo. 435, 20 S. W. 96; Holker v. Hennessey, ]41 Mo. 527, 536, 64 Am. St! Rep. 524, 529, 39 L. R. A. 165, 42 S. W. 38 CEIMINiLL PROCEDXJBB. 20 by criminal process, after discharge on bail/ trial and acquittal* or in those cases in which there has been a con- 1090. N. Y.— I>agrave's Case, 14 Abb. Pr. N. S. 335; BenninghofE v. Oswell, 37 How. Pr. 235; Under- wood V. Fetter, 6 N. Y. Leg. Obs. 66; Murphy v. Sweezy, 2 N. Y. Supp. 241. PA.— Addicks v. Bush, 1 Phila. 19. FED.— Kaufman v. Graves, 173 Fed. 554 (exemption applies to criminal, as well as civil cases). ENG. — Gilpin v. Benja- mine, L. R. 4 Exch. 131, 38 L. J. Exch. N. S. 50, 19 L. T. N. S. 830, 17 Week. Rep. 885; Callans v. Sherry, Alcock & N. (Ir.) 125; Williams v. Steele, 4 Ir. Law Reo. 169; Kelly v. Barnwell, 1 Cooke & Alcock (Ir.) 94. Fugitive from justice brought into state on a bona fide criminal charge, and not as a mere pretext, not privileged. — ^Williams v. Ba- con, 10 Wend. (N. Y.) 636. Citizen of one state indicted in federal court of another state, who comes therein to plead 'under an arrangement with the district at- torney that he may appear with- out arrest, plead and give bail, is exempt, while so in the state, from liability to civil process. — United States v. Bridgman, 9 Biss. 221, 8 Am. L. Rec. 541, 12 Chicago Leg. News 133, Fed. Cas. No. 14645. 7 COLO. — In re Popejoy, 26 Colo. 32, 55 Pac. 1083. IOWA— Murray V. Wilson, 122 Iowa 109, 64 L. R. A. 536, 97 N. W. 1087 (defendant com- ing into state for trial in accord- ance with bail bond.) N. Y. — Netograph Mfg. Co. v. Scrugham, 197 N. Y. 380, 134 Am. St. Rep. 886, 27 L. R. A. (N. S.) 335, 90 N. E. 962 (rule not applicable to person arrested who has given bail, be- cause constructively in custody, not voluntary attendant). N. C. — Moore v. Greene, 73 N. C. 394, 21 Am. Rep. 470. OHIO— Compton v. Wilder, 40 Ohio St. 130. PA.— Key v. Jetto, 1 Pittsb. 117 (charged with crime before magistrate, and discharged on recognizance for fur- ther hearing, not privileged) . VT. —Scott V. Curtis, 27 Vt.'762. ENG. —Hare v. Hyde, 16 Q. B. (16 Ad. & E. N. S.) 394, 7 Eng. C. L. 393, 20 L. J. Q. B. N. S. 185, 15 Jur. 315; Anonymous, 1 Dowl. P. C. 157; Jacobs V. Jacobs, 3 Dowl. P. C. 675; Rex v. Douglas, 7 Jur. 39. Bail requiring attendance from another state or county, party privileged until a reasonable time to enable him to return home. — Palmer v. Rowan, 21 Neb. 452, 59 Am. Rep. 844, 32 N. W. 210. 8 Addicks v. Bush, 1 Phila. (Pa.) 19. In the Matter of Douglas, 3 Q. B. (3 Ad. & E. N. S.) 825, 43 Eng. C. L. 992, 3 Gale & D. 509, 12 L. J. Q. B. N. S. 49, 7 Jur. 39; Goodwin V. Lordon, 1 Ad. & E. 378, 3 Neb. & M. 879, 2 Dowl. P. C. 504, Eng. Repr. 28 Eng. C. L.; Hare v. Hyde, 16 Q. B. (16 Ad. & E. N. S.) 394. Lord Campbell, in Hare v. Hyde, 16 Q. B. (16 Ad. & E. N. S.) 394, 71 Eng. C. L. 373, 20 L. J. Q. B. N. S. 185, 15 Jur. 315, says: "I am of the opinion that the defendant has no privilege In respect of his having been tried and acquitted and ordered to be discharged. He was, after that, in the same posi- tion as any other of the circum- stances in court. The cases show that an acquitted person has no privilege redeundo; and it follows §20 APPREHENSION — ^PKIVILEGE FROM ABKEST. 39 viction,^ as well as where held in jaiP" under charge or in prison under sentence.^^ But there is a hopeless con- flict in the decisions in regard to this matter and the practitioner must be guided by the doctrine in the par- ticular jurisdiction. that whils remaining as a specta- tor he was not privileged more than any one else." In Missouri, in the case of By- ler V. Jones, 22 Mo. App. 623, It is held that a person arrested on a criminal charge in another county, and discharged on the hearing or trial, is immune from civil process or arrest in a civil action until he has had a reasonable time in which to leave the county where the trial is had and the prisoner discharged. In Nebraska, in the case of Palmer v. Rowan, 21 Neh. 452, 59 Am. Rep. 844, 32 N. W. 210, it is held that one charged with a crim- inal offense in a county other than that of his residence, who is dis- charged on the trial, is privileged from civil process in the county where tried and acquitted until the elapse of a reasonable time to en- able him to return to his home. 9 Lucas V. Albee, 1 Den. (N. Y.) 666. 10 Confined in jail in default of bail on a criminal charge, person not privileged from civil process. —White V. Underwood, 125 N. 0. 25, 74 Am. St. Rep. 630, 46 L. R. A. 706, 34 S. E. 104. 11 CONN. — Dunn's Appeal, 34 Conn. 82. KY. — Smith v. McGlas- son, 30 Ky. (7 J. J. Marsh.) 154. MO. — Byler v. Jones, 21 Mo. App. 623. N. Y.— Williams v. Bacon, 10 Wend. 636; Platner v. Sherwood, 6 John. Ch. 130; Phelps v. Phelps, 7 Paige Ch. 150; Davis v. Duffie, 1 Abb. App. Dec. 486, 3 Keyes 606, affirming 8 Bosw. 617; Morris v. Walsh, 1 Abb. Pr. 387 ; In re John- son, 21 Abb. N. C. 172; Slade v. Joseph, 5 Daly 187; Bonnell v. Rome, W. & O. R. Co., 12 Hun 218 N. C. — Moore v. Greene, 73 N. C. 394, 21 Am. Rep. 470; White T. Underwood, 125 N. C. 25, 74 Am. St. Rep. 630, 46 L. R. A. 706, 34 S. E. 104. PA. — Davis v. Cum- mins, 3 Yeates 387. ENG.— Ram- say V. McDonald, 1 W. Bl. 30, 96 Eng. Repr. 16; Hutchins v. Ken- rick, 2 Burr. 1048, 97 Eng. Repr. 701; Coopin v. Gunner, 2 Ld. Raym. 1572, 92 Eng. Repr. 518; Williams v. Smith, 1 Dowl. P. C. 703; Loveitt v. Hill, 4 Dowl. P. C. 579. Compare: Anonymous, Mosley 237, 25 Eng. Repr. 369 (no process can be served on a prisoner com- mitted at the suit of the crown, without leave, though he at once appears) ; Ex parte Smith, Alcock & N. (Ir.) 126; Brown v. Tracey, 9 How. Pr. (N. Y.) 93; Troup v. Wood, 4 Johns. Ch. (N. Y.) 228, probably overruled in Platner v. Sherwood, 6 Johns. Ch. (N. Y.) 130. Extent of privilege from arrest while going to or from court, ex- tends to all proceedings of a judi- cial nature, whether in court or not, and protects a person going to or from place of conlinement under former arrest. — People v. Judge of Superior Ct., 40 Mich. 729. On way to consult counsel after apprehension on criminal charge, a person is privileged from arrest in a civil suit. — Jacobson v. Hoss- mcr, 76 Mich. 234, 42 N. W. 1110. CHAPTER III. APPKEHENSIOK ^ACTS AND FACTS CONSTITUTING. § 21. Introductory. § 22. Corporal control and notice are essential. S 23. Notice may be given by implication. § 21. Introductory. It has already been pointed out* that in order to constitute a legal apprehension there must be a touching or putting the hands upon the body or clothing^ of the person apprehended, or the doing of some other act manifesting an intention to apprehend; and there must also be a show of present ability to take the person into custody to answer in a court of jus- tice;^ and, also, that the word and act imply a certain degree of force and restraint,* or the present ability to exercise or exert it. 1 See ante, § 9. 2 A touching or corporal seizing Is requisite to a valid arrest, un- der the doctrine of some of the old and some of the modem cases. — See Horner v. Batten, Bull. N. P. 62; Genner v. Sparlts, 6 Mod. 173, 87 Eng. Repr. 928; Genner v. Sparkes, 1 Salk. 79, 91 Eng. Repr. 74; United States v. Banner, 1 Bald. 234, 239, Fed. Gas. No. 14568; Lawson v. Bunzines, 3 Harr. (Del.) 416. But see authorities, post note 4, this section. However sliglit the touch, baa been held to be sufficient to con- stitute a valid arrest. "If he had touched the defendant, even with the end of his iinger, it would have been an arrest" (Genner v. Sparks, G Mod. 173, 87 Eng. Repr. 928, 929), "although he did not suc- ceed in stopping or holding him." — ^Whitehead v. Keyes, 85 Mass. (3 Allen) 495, 81 Am. Dec. 672. 3 See People ex rel. Taranto v. Erlanger, 132 Fed. 883. 4 Actual force or manual touch- ing of the body Is not necessary to constitute either an apprehension or an arrest, it being sufficient that the party be within the power of the officer or person making the arrest, and submits to be taken into custody. ALA. — Collins t. Fowler, 10 Ala. 858; Field v. Ire- land, 21 Ala. 240. GA.— Courtoy v. Dozier, 20 Ga. 369, IND.— Cooper V. Adams, 2 Blackf. 294. KY.— Hart v. Flynn's Exr., 38 Ky. (8 Dana) 190. MAINE— Strout v. Gooch, 8 Maine 127. N. H.— Hunt- ington V. Blaisdell, 2 N. H. 318; Pike V. Hanson, 9 N. H. 491; Em- (40) §21 APPREHENSION — ACTS AND FACTS CONSTITUTING. 41 Mere words will not suffice to constitute a valid appre- hension -where the party resists, flees, or refuses to sub- mit.* The rule is otherwise in those cases in which the party accompanies the officer or otherwise submits to his power,® actual submission to and being within the power of the officer being sufficient ery v. Chesley, 18 N. H. 19S, 201; Butler V. Washburn, 25 N. H. 251, 258. N. J.— State v. Hahn, 40 N. J. L. (11 Vr.) 228; Hebrew v. Prelis, 73 N. J. L. 621, 118 Am. St. Rep. 716, 7 L. R. A. (N. S.) 580, 64 Atl. 121. N. Y.— Blssell v. Gold, 1 Wend. 210, 19 Am. Dec. 480; Callahan v. Searles, 78 Hun 239, 60 N. Y. S. R. 314, 28 N. Y. Supp. 904; Hart v. McDonald, 1 N. Y. City Rep. 181; Searls v. Viets, 2 Thomp. & C. 224. N. C. — Jones v. Jones, 35 N. C. (13 Ired. L.) 448; State V. Buxton, 102 N. C. 129, .8 S. B. 774. VT.— Godell v. Tower, 77 Vt. 61, 107 Am. St. Rep. 745, 58 Atl. 790. WASH.— State v. Deatherage, 35 Wash. 326, 77 Pac. 504. BNG. — Horner v. Batten, Bull. N. P. 62; Sir James Wing- field's Case, 8 Car. 1; Williams v. Jones, Cas. temp. Hardw. 301, 95 Eng. Repr. 193 ; Genner v. Sparkes, 1 Salk. 79, 91 Eng. Repr. 74. "H bailiff who has a process against one says to him when he is on horseback or In a coach, 'you are my prisoner, I have a warrant for you,' upon which he submits, turns back, or goes with- him, though the bailiff never touched him, this is an arrest" (Genner v. Sparkes, 1 Salk. 79, 91 Eng. Repr. 74); but the officer must exercise a controlling au- thority over the person, and have in his hands the process to en- force. — ^Lansing v. Case, 4 N. Y. Leg. Obs. 221. Contra: A line of cases, follow- ing the views of Lord Mansfield, as expressed in Arrowsmith v. Le Mesurier, 2 Bos. & P., N. R. 211, 127 Eng. Repr. 605, 9 Rev. Rep. 642, that if a warrant be shown by the officer charged with its execu- tion to the person accused with the commission of an offense, and the latter, without compulsion, at- tends the officer to the magistrate or court, and is dismissed on hear- ing, this does not constitute such an arrest as will support trespass and false imprisonment. — See Bis- ten V. Barridge, 3 Campb. 139; McClaughan v. Clayton, Holt N. P. 478. 5 Fuller V. Bowker, 11 Mich. 204; Case V. State (Miss.), 17 So. 379; Russen v. Lucas, 1 Car. & P. 153, 12 Eng. C. L. 98. 6 Pike V. Hanson, 9 N. H. 491; Emery v. Chesley, 18 N. H. 198; Bissell V. Gold, 1 Wend. (N. Y.) 210, 19 Am. Dec. 480; Searls v. Viets, 2 Thomp. & C. (N. Y.) 224; see, also, cases cited in note 7 post, this section. 7 ALA.— Field v. Ireland, 21 Ala. 240. ARK.— Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250. DEL.- Bloomer v. Caunters, 1 Harr. 143. GA. — Courtoy v. Dozier, 20 Ga. 369. MASS.— Mowry v. Chase, 100 Mass. 79. MICH.— Brushaber v. 42 CRIMINAL PROCEDURE. §22 Restraint of the person and of the right of locomotion, actual or potential, are absolutely essential to a valid apprehension.* § 22. CoKPOEAIi CONTEOL AND NOTICE ARE ESSENTIAL. To constitute an apprehension so as to make the defendant guilty of escape in case he does not submit and follow,^ it is enough that there should be some degree, however slight, of corporal control.^ Thus to inform a defendant that he is apprehended, and to lock the door,^ or to touch him with only a finger,* provided he be informed at the time that he is apprehended,^ constitutes a valid appre- hension. And corporal touch is not necessary, provided it be waived by the defendant, which can be done by his Stegemann, 22 Mich. 266. N. H.— Pike V. Hanson, 9 N. H. 491; Em- ery V. Chesley, 18 N. H. 198. N. Y. — Searls v. Viets, 2 Thomp. & C. 224. N. C— Harkins v. Young, 2 Dev. & B. L. 527, 31 Am. Dec. 426. TENN. — Bloomer v. State, 35 Tenn. (3 Sneed) 66; Smith v. State, 26 Tenn. (7 Humph.) 43. TEX. — Herring v. State, 3 Tex. App. 108. FED. — Johnson v. Tomp- kins, 1 Bald. 571, Fed. Cas. No. 7416. ENG. — Horner v. Beatten, Bull. N. P. 62; Grainger v. Hill, 4 Bing. N. C. 212, 132 Bng. Repr. 769, 33 Eng. C. L. 561; Warner v. Riddiford, 4 C. B. (N. S.) 180, 205, 140 Eng. Repr. 1052, 1062, 93 Eng. C. L. 180, 204. 8 See DEL. — Lawson v. Bunzines, 3 Harr. 416; Petit v. Calmery, 4 Pen. 266, 55 Atl. 344. ILL.-— Mont- gomery County V. Robinson, 85 111. 174, 176. KY.— Legrand v. Bedinger, 20 Ky. (4 T. B. Mon.) 540; Hart v. Plynn's Exr., 38 Ky. (8 Dana) 190; Rich v. Bailey, 123 Ky. 827, 97 S. W. 747. MD.— Balti- more & O. R. Co. V. Strube, 111 Md. 119, 73 Atl. 697. MASS.— French v. Bancroft, 42 Mass. (1 Met.) 502, 504. MINN.— Judson v. Reardon, 16 Minn. 431; Rhodes v. Walsh, 55 Minn. 542, 23 L. R. A. 632, 57 N. W. 212; Steenerson v. Polk County, 68 Minn. 509, 71 N. W. 687. N. H.— Emery v. Chesley, 18 N. H. 198, 201. N. Y.— Lansing V. Case, 4 Leg. Obs. 221. N. C— State V. Buxton, 102 N. C. 129, 8 S. E. 774. S. C. — Huntington v. Shultz, Harp. 452, 18 Am. Dec. 660. TEX.— Gentry v. Griffith, 27 Tex. 462. VT.— In re Fitton, 68 Vt. 297, 35 Atl. 319. FED.— United States V. Benner, 1 Bald. 234, Fed. Cas. No. 14568. 1 See ante, § 21, foot notes 6 and 7. 2 See ante, § 21, foot note 4. 3 Williams v. Jones, Cas. temp. Hardwicke 284, 195 Eng. Repr. 193. 4 See ante, § 21, foot note 2. 6 Genner v. Sparkes, 1 Salk. 79, 91 Bng. Repr. 74. 123 APPEEHENSIOlSr — ACTS AND FACTS CONSTITUTING. 43 submission to tlie process, and placing himself in the power of the officer.® But it is essential that there should be notice of arrest given either expressly or by implica- tion; and without such notice no amount of physical restraint can constitute an arrest.^ The amount of force justifiable in arresting is discussed elsewhere.® § 23. Notice may be given by implication. Where an officer^ is seeking to apprehend for a felony or a misde- meanor, it is his duty to give to the party he is seeking to apprehend clear and distinct notice of his purpose and authority, and of the fact that he is legally qualified;^ because if the person sought to be apprehended has no notice that the attempted apprehension is by lawful authority, he has the right to resist the attempt to take 6 See Kerr's Whart. Or. Law, §§402, 444, 1672-4; Emery v. Chesley, 18 N. H. 198; Searls v. Viets, 2 Thomp. & C. (N. Y.) 224; Russen v. Lucas, 1 Car. & P. 153, 12 Eng. C. L. 98; George v. Rad- ford, Moody & M. 244. 7 Kerr's Whart. Crim. Law, §§521-571; Yates v. People, 32 N. Y. 509; State v. Belk, 76 N. C. 10; Mackalley's Case, 9 Coke 65; 77 Eng. Repr. 828; R. v. Howarth, 1 Ry. & Moody C. C. 207; R. v. Gardener, 1 Ry. & Moody C. ' C. 390; R. V. Payne, 1 Ry. & Moody C. C. 378. 8 In Kerr's Whart. Crim. Law the topic in the text is discussed at large in §§ 540-571. As to the right to resist officers, see Kerr's Whart. Crim. Law, §§ 849-856. 1 A person other than an officer, seeking to apprehend for felony without a warrant In his posses- sion, should make known on de- mand, that a warrant exists, stat- ing where it is, and that he claims to be acting under its authority, or hy command of the officer who has it In his possession; but the omission so to do will not justify the party apprehended, or sought to be apprehended, In resisting the apprehension, where he in fact al- ready knows, or on reasonable and probable grounds believes that he is under charge of felony, that a warrant is out for his apprehen- sion, and that the apprehension attempted is really in consequence of the substance of the warrant and its attempted execution. — ^Rob- inson V. State, 93 Ga. 77, 44 Am. St. Rep. 127, 9 Am. Cr. R. 570, 18 S. E. 1018. 20therwise in jurisdictions where officer empowered by law to apprehend without a warrant. — Shovlin V. Com., 106 Pa. St. 369, 6 Am. Cr. R. 41. Demand for authority by person sought to be apprehended, made under real ignorance of the true state of affairs and in good faith for the purpose of enlisting what 44 CRIMINAL PROCEDURE. liim into custody, and the apprehension, if made under such circumstances, is illegal.* But this notice may he given by implication.* If, as has been seen, a constable command the peace,^' or show his badge or staff of office," this is a sufficient intimation of his authority. In such a case it is not necessary to proAC the officer's appointment as constable; proof that he was accustomed to act as constable is sufficient.'' Where he shows his warrant,^ or where it appears that he is known to the defendant to be an officer ;" as, for instance, was actually wanted and needed, on failure to comply with the de- mand, he will be justified in re- sisting to any reasonable and proper extent. — Robinson v. State, 93 Ga. 77, 44 Am. St. Rep. 127, 9 Am. Cr. R. 570, IS S. B. 1018. 3 Franklin v. Amerson, 118 Ga. 860, 13 Am. Cr. R. 1, 45 S. E. 698. See Snelling v. State, 87 Ga. 50, 13 S. E. 154; Jones v. Stete, 114 Ga. 73, 39 S. B. 861. 4 People V. Pool, 27 Cal. 572. See Kerr's Whart. Grim. Law, §§ 529, 571, 2003. Arrest in commission of act or upon fresh pursuit afterwards, of- ficer not required to give notice of his official character, because the person arrested must know why he is arrested. — People v. Pool, 27 Cal. 572. See R. v. Whithorne, 3 Car. & P. 394, 14 Eng. G. L. 627; R. V. Davis, 7 Car. & P. 785, 32 Eng. C. L. 872; R. v. Payne, 1 Moo. C. C. 378. As to what is sufficient notice, it has been said that the command: "You are my prisoners — surren- der," constitutes a sufficient no- tice of the character of the of- ficer. — People V. Pool, 27 Cal. 572. See Mackalley's Case, 9 Coke 68b, 69a. "I arrest you by authority of the state of Vermont," also held to be sufflcient notice of the official character of the person seeking to make the arrest. — State v. Tay- lor, 70 Vt. 1, 67 Am. St. Rep. 648, 42 L. R. A. 673, 39 Atl. 447. As to information a person is entitled to on arrest. See 43 L. R. A. 673. 5 1 Hale 561. Where an offender is openly en- gaged in breaking the law, it will be sufiicient If the officer an- nounces his official position and demands his surrender; if this is refused, the officer may use such force as may be necessary to secure his prisoner.- — Shovlin v. Com., 106 Pa. St. 369, 5 Am. Cr. R. 41. 6 Foster, 311; Yates v. People, 32 N. Y. 509; R. v. Woolmer, 1 Moody C. C. 334; Kerr's Whart. Grim. Law, § 1972. 7 East P. C. 315; Whart. Crim. Evid. § 833. 8 1 Hale 461. 9 A person about to be appre- hended, who is acquainted with the officer and knows of his offi- cial position, has sufficient knowl- edge of that fact, and the officer is not required to make a declara- §23 APPREHENSION ACTS AND FACTS CONSTITUTING. 45 when the defendant says: "Stand off; I know you well enough; come at your peril ;"^" this is notice enough.*^ tion of his official position; and C. C. 207; Rex v. Woolmer, IMoo. this is true both as to the officer seeking to apprehend, and as to parties assisting him therein. — State V. Shaw, 73 Vt. 148, 13 Am. Cr. R. 51, 50 AH. 863; Rex v. Davis, 7 Carr. & P. 785, 32 Eng. C. U 872; Rex t. Howarth, 1 Moo. C. C. 334; Rex v. Payne, 1 Moo. C. C. 378; Reg. v. Porter, 12 Cox C. C. 444. 10 R. V. Pew, Cro. Car. 183. 11 1 Hale 438. See People t. Pool, 27 Cal. 572. "'^i CHAPTER IV. APPREHENSION WARRANTS FOB. § 24. Criminal procedure usually commences with oath before magistrate. P 25. Officer may be described by office. § 26. Form and sufficiency of warrant. § 27. Same — Blank warrants. §28. Same — " John Doe " warrants. § 29. Same — Defective warrants. § 30. Manner of executing warrant. § 24. Criminal procedure xtsuallt commences with OATH before magistrate. The usual commencement of a criminal procedure is a preliminary oath^ before a magis- 1 Affidavit by any one who is competent to make oath to it, is sufficient— IOWA — Santo v. State, 2 Iowa 165, 63 Am. Dec. 487. KAN. — Prell V. McDonald, 7 Kan. 426, 12 Am. Rep. 423. LA. — State v. Touch«t, 46 La. Ann. 827, 15 So. 390 (Justice of the peace author- ized to issue warrant on oath o£ one or more "credible" witnesses, not required to accept affidavit of any person who may offer to make it). MAINE— Campbell V. Thomp- son, 16 Maine 117. MASS.— Com. V. Tobias, 141 Mass. 129, 6 N. B. 217; Com. y. Alden, 143 Mass. 113, 9 N. E. 15; Com. v. Carroll, 145 Mass. 403, 14 N. B. 618; Com. v. Murphy, 147 Mass. 577, 18 N. B. 418; Com. v. Gay, 153 Mass. 211, 26 N. B. 571, 852. MICH.— People v. Lynch, 23 Mich. 274; Pardee v. Smith, 27 Mich. 33. MONT.— State V. Clancy, 20 Mont. 498, 52 Pac. 267 (Information by county attorney, who has to make an (46) oath to perform the duties im- posed on him by law). N. H. — state V. Howard, 69 N. H. 507, 43 Atl. 592. N. Y.— People v. Stokes, Abb. N. C. (N. Y.) 200, 24 N. Y. Supp. 727 (person convicted of felony, who is by statute made competent witness in any cause or proceedings; where affidavit was by felon convict whose testimony incompetent at trial, court refused to quash proceedings. State v. Killet, 2 Bail, S. C. 289). OHIO— Kaubach v. State, 25 Ohio Cir. Ct. R. 488 (affidavit need not be fol- lowed by the filing of an informa- tion). R. I.— State V. Woodman- see, 19 R. I. 651, 35 Atl. 961. TEX. — Rivers v. State, 10 Tex. App. 177 (convict pardoned and competent to testify; but see Perez v. State, 20 Tex. App. 327). FED.— United States V. Skinner, 1 Brun. Col. Cas. 446, Fed. Cas. No. 16309. — Specified officers designated to file affidavit, others not compe- §24 APPREHENSION WAREANTS FOE. 47 trate,^ upon which, if it appear on the face of such oath that a criminal offense has heen committed by the defen- dant* within the magistrate's jurisdiction, a warrant of tent to do so. — Foster v. Clinton Co., 51 Iowa 541, 2 N. W. 207. Contra: State v. Howard, 69 N. H. 507, 43 Atl. 529. Wife may make complaint against husband for assault with intent to do great bodily harm. — People V. Sebrlng, 66 Mich. 705, 35 N. W. 808 (less than the crime of murder) ; Goodwin v. State, 114 Wis. 318, 90 N. W. 170 (with In- tent to kill). Can not make complaint against him for Indecent assault on his daughter. — People v. Westbrook, 94 Mich. 629, 54 N. W. 486. Affidavit filed after warrant is- sues, comes too late; it can not be made to relate back so as to con- fer jurisdiction on the justice to issue the warrant. — Smith v. Claus- meier, 136 Ind. 105, 43 Am. St. Rep. 311, 35 N. E. 904. Affidavit of complaining party not sufficient in Missouri, except under contingencies provided for in the statute; prosecuting attor- ney must act. — McCaslay v. Gar- rett, 31 Mo. App. 354. Affidavit of complaint not neces- sary where statute does not re- quire it, though It does require ex- amination of complaint on oath. — State V. Price, 111 N. C. 703, 16 S. E. 414. Complaint not under oath, nor In writing, that a crime has been committed, is all that is necessary to authorize magistrate to issue warrant. — People v. Hicks, 18 Barb. (N. Y.) 153; State v. KlUet, 2 Ball. L. (S. C.) 290. Contra: Myers v. People, 67 111. 503; Carey v. State, 5 Tex. App. 462. Verification of information is neither an oath nor an affirma- tion within a constitutional pro- vision that "no warrant shall issue but on probable cause supported by oath or affirmation." — City of Atchison v. Bartholow, 4 Kan. 124, 139, 140; Thompson v. Higgin- botham, 18 Kan. 42, 44; State v. Gleason, 32 Kan. 245, 4 Pac. 363. 2 People V. Le Roy, 65 Cal. 615, 4 Pac. 649. Clerk of court has no power to take affidavit on which warrant for apprehension may issue. — Lloyd V. State, 70 Ala. 32. Contra: State v. Louner, 26 Neb. 757, 42 N. W. 762. Offense on high seas, complaint must be sworn to before the court or judge, or clerk of the court, or some commissioner authorized to act in absence of the judge; affi- davit before a deputy clerk of the court acting as a notary public and not as clerk, is insufficient. — United States v. Smith, 17 Fed. 510. 8 Affidavit before notary that af- fiant bought liquor of defendant "at his saloon on one Sunday in the month of May, 1888," does not meet the requirements under N. Y. Code Cr. Proc, §§ 145-148, and fails to state the commission of an offense. — 'People v. Nowak, 52 Hun (N. Y.) 613, 7 N. Y. Cr. R. 69, 5 N. Y. Supp. 239. 48 CRIMINAL PROCEDURE. §2-1 apprehension issues.* The affidavit must be specific,^ and must aver personal knowledge* on the part of the affiant. 4 Woodall V. McMillan, 38 Ala. 622; Pierson v. State, 129 Ala. 120, 29 So. 843; Ormond v. Ball, 120 Ga. 916, 48 S. E. 383; Housh v. People, 75 111. 487; State v. Graff- muller, 26 Minn. 6, 46 N. W. 445; Blodgett V. Race, 18 Hun (N. Y.) 132; People v. Pratt, 22 Hun (N. Y.) 200. A second warrant on same affi- davit, after apprehension and hear- ing by other justices under first warrant. Is unauthorized; the jus- tice becomes functus officio as to all matters in the affidavit. — State V. Sneed, 84 N. C. 816. Assistant of justice cl the peace may Issue warrants in criminal cases, where the justice is absent or unable to serve, where by law may act through assistant. — State V. Chappell, 26 R. I. 375, 58 Atl. 1009. Complaint before magistrate the prescribed procedure, court will not relieve against an indictment by grand jury, where it is neces- sary for that body to act to pre- vent the statute of limitations from attaching. People v. Strong, 1 Abb. Pr. N. S. (N. Y.) 244. Commission of offense In another county, justice of the peace has no jurisdiction to issue warrant for apprehension. — Hill v. Taylor, 50 Mich. 549, 15 N. W. 899. — In another jurisdiction within same county, justice can not make warrant returnable before himself. — McCrag v. Burr, 106 App. Div. § 134. Substantial acoueacy only bequieed. A for- mal statement in the indictment that it was found by the authority of the State is not necessary, if it appear, from the record, that the prosecution was in the name of the State.^ The caption must set forth the court where the indictment was found, as a "GenereQ Session of the Peace," "the Court of Oyer and Terminer," etc., "for N. Y. County," etc., so that it may appear to. have jur- 8 2 Sessions cases, 316; 1 Ch. SI Mo. 549; Phelps v. People, 72 N. Y. 334; State v. Kerr, 3 N. D. 523, 58 N. W. 27; State v. Anthony, 1 McC. (S. C.) 285; State v. Delue, 1 Chad. (Wis.) 166, 2 Finn. 204. Omissions of th© words "of Texas" held fatally defective. — Saine v. State, 14 Tex. App. 144. "Grand jurors of the county of," naming it, of a given state, is not a prosecution by the state. — State V. Cutter, 83 Mo. 359. Need not state presented by grand jury "in the name and by the authority of the state." — Holt V. State, 47 Ark. 196, 1 S. W. 61. Prosecution by proper law offi- cials meets constitutional require- ment of Texas that all prosecu- tions shall be "in the name and by the authority of the republic of Texas. "^ — Drummond v. Repub- lic, 2 Tex. 156. Record showing prosecution In the name of state and by its au- thority, is sufficient; indictment C. L. 327. See State v. Wasden, 4 N. C. 596, N. C. Term 163; State V. Haddock, 9 N. C. (2 Hawks) 461. 9 Winn V. State, 5 Tex. App. 621. 1 FLA. — Ex parte Nightingale, 12 Fla. 272; Savage v. State, 18 Fla. 909. ILL. — ^Whitesides v. Peo- ple, 1 111. (1 Breese) 21. IND.— Curtz V. State, 4 Ind. 385. LA.— State V. Russell, 2 La. Ann. 604. MISS. — Greeson v. State, 6 Miss. (5 How.) 33. "In behalf of" a named state is an allegation that the prosecution is by the state, within the consti- tutional requirement — ^Wrocklegs V. State, 1 Iowa 167; Baurose v. State, 1 Iowa 374. Indictment in name of state, con- cluding against its peace and dig- nity, is a prosecution in the name of the state.— Allen v. Com., 5 Ky. (2 Bibb) 210; State v. Moore, 8 Rob. (La.) 518; State v. Foster, 192 CEIMINAIj procedueb. §134 isdiction.^ Next to the statement of the court ' follows the name of the place and county where it was holden, and which must always be inserted;* and though it may be enough, after naming a place, to refer to "the county aforesaid," yet, unless there be such express reference to the county in the margin, or it be repeated in the need not so recite. — Savage v. State, 18 Fla. 909; Dickson v. State, 62 Ga. 583; State v. Thomp- son, 4 S. D. 95, 55 N. W. 725. Board of pilot commissioners must prosecute violations of tlie pilotage act in the name of the state and not in the name of the pilot commissioners. — Ex parte Nightingale, 12 Ma. 272. 2 2 Hale 165; 2 Hawk., ch. 25, §§ 16, 17, 118, 119, 120; Bum's Jus- tice, 29th ed. hy Chitty & Bears, Indict, ix; State v. Zule, 10 N. J. L. (5 Halst.) 348; Dean v. State, 8 Tenn. (Mart. & Yerg.) 127. 3 Caption must specify court before which indictment is found. —State V. O'Neil, 24 Idaho 582, 135 Pac. 60; State v. Sutton, 5 N. C. 281. "County court of Clay county," instead of "county court of Clay," does not vitiate an indictment. — Collins V. State, 3 Ala. App. 64, 58 So. 80. "Grand jurors of United States," in a territorial court exercising a dual jurisdiction over offenses against the territory and offenses against the United States, Is a proper designation on an Indict- ment for a federal offense. — BIl- lingsley v. 'United States, 101 C. C. A. 465, 178 Fed. 653. "In the circuit court," in an in- dictment found by a grand jury impaneled in a federal district court, held to be a merely formal imperfection which would not nec- essarily prejudice the accused, nor have the effect to return the in- dictment to the circuit instead of the district court. — Ledbetter v. United States, 47 0. C. A. 191, 108 Fed. 52. "In the district court of the United States for the district of A'laska," though inaccurate, is a mere clerical or technical error, and the indictment is not vitiated t h e r e b y. — ^Jackson v. United States, 42 C. C. A. 452, 102 Fed. 473. "Liquor circuit court," for Lau- rel circuit court, does not vitiate the indictment. — Mitchell v. Com., 106 Ky. 602, 51 S. W. 17. Name of court need not be stated in title to indictment. — State V. Daniel, 49 La. Ann. 954, 22 So. 415; State v. Craft, 164 Mo. 631, 65 S. W. 280. "Territory of New Mexico, county of Socorro, in the district court," etc., is a sulHcient designa- tion of the court in which the in- dictment is found. — Territory v. Claypool, 11 N. M. 568, 71 Pac. 463. 4 Dyer 69, A.; Cro. Jac. 276; 2 Hale 166; 2 Hawk., ch. 25, § 128; Bacon Ab. Indictment, 1. Time and place, strictness of averments as to, is not essential in collateral or negative matters, or In Indictments for misdemeanors. —State V. Stlmson, 24 N. J. L. (9 C. E. Gr.) 478. §134 INDICTMENT SUBST IKTIAL ACOURAOT. 193 body of the caption, it will be insufficient." This is nec- essary in order to show that the place is within the limits of the jurisdiction f and, therefore, whether the caption wholly omit the place, or do not state it with sufficient certainty, the proceedings will be alike invalid, though amenable ;'' as, if it state it to be taken only at the town, without adding ' ' the county aforesaid, ' ' the omission will vitiate.* But though the name of the county be left blank in the margin of an indictment for misdemeanor, it is enough, in Virginia, if the county be stated in the body of the indictment.* B2 Hale 180; 3 P. Wms. 439; 1 Saund. 308, n.; Cro. Eliz. 137, 606, 738. 6 R. V. Stanbury, L. & C. 128. As to venue, see fully, Infra, 1181. 7 Cro. Jac. 276; 2 Hale 166; 2 Hawk., ch. 25, § 128 ; Bac. Ab. In- dictment, i. 8 Cro. Eliz. 137, 606, 738, 751; 2 Hale 166; 2 Hawk., ch. 25, § 128; Bac. Ab. Indictment, i; Will- iams, J., Indictment, iv; United States V. Wood, 2 Wheel. Cr. Cas. 325, 336, Brun. Col. Cas. 456, Fed. Cas. No. 16757. 9 Teft V. Com., 8 Leigh (Va.) 721. In England an indictment pur- porting to be presented by the grand jurors "upon their oath and affirmation" need not state the reasons why any of the jurors affirmed instead of being sworn. — • Mulcahy v. R., 3 L. R. H. L. Cas. 306; Com. v. Brady, 73 Mass. (7 Gray) 320. Compare: State v. Harris, 7 N. J. L. (2 Halst.) 361. In Maine, where the record com- menced: "State of Maine, Cum- berland, ss. At the Supreme Court begun and holden at Portland, I. Grim. Proo. — 13 within the county of Cumberland," it was held that this was sufficient to show that the court at which the indictment was found was holden for that county in the State of Maine. — State v. Conley, 39 Me. 78. Infra, § 181. In Massachusetts, an indictment, with this caption: "Commonwealth of Massachusetts, Essex, to wit: At the Court of Common Pleas, begun and holden at Salem, within and for the county of Essex," on a certain day, sufficiently shows that it was found at a court held in this Commonwealth. — Com. v. Fisher, 73 Mass. (7 Gray) 492. See, also, Jefferies v. Com., 94 Mass. (12 Allen) 145; Com. v. Mul- len, 95 Mass. (13 Allen) 551. In the same state, an indictment which purports by its caption to,' have been found at a court of com- mon pleas for the county of Hamp- _ shire, and in the body of which i "the jurors of said Commonwealth on their oath present," sufficiently shows that it was returned by the grand jury for the county of Hampshire. — Com. v. Edwards, 70 Mass. (4 Gray) 1. Infra, § 176. For North Carolina cases, see State T. Haddock, 9 N. C. (2 194 CEIMTNAL PKOCEDUEB. 135 >§ 135. Caption may be amended. Defects in the cap- tion of the indictment, as not naming the judges, the jurors, and the county, which would be fatal if the indict- ment were removed into a superior court, may be sup- Hawks) 461; State v. Lane, 26 N. C. (4 Ired.) 113. Other rulings on captions. See: ALA. — ^Reeves v. State, 20 Ala. 33; IND.— Lovell V. State, 45 Ind. 550. MD.— Davis v. State, 39 Md. 355. MISS.— Woodsides v. State, 3 Miss. (2 How.) 655. OHIO— Davis v. State, 19 Ohio St. 270. The Grand Jury. — It must ap- pear on the face of the record, that the bill was found \>y at least twelve jurors, or it will he in- sufficient— Cro. Eliz. 654; 2 Hale 167; 2 Hawk., oh. 25, §§16, 126; 1 Saund. 248, n. 1; 4 East 175, 176; Andr. 230; Bac. Ab. Indictment, i; Bum, J., Indictment, ix; Will- lams, J., Indictment, iv. Where the statute requires more than twelve, the requisite number must be averred. — Fitzgerald v. State, 4 Wis. 395. — "Good and lawful men" is suffi- cient designation, though they are usually described. — 2 Hale 167; Cro. Eliz. 751; 1 Keb. 629; Cro. Jac. 635; State v. Jones, 9 N. J. L. (4 Halst.) 357, 17 Am. Dec. 483; State V. Price, 11 N. J. L. (6 Halst.) 203. But this is not in England abso- lutely essential, especially when the indictment is found in a supe- rior court, because all men shall be so regarded until the contrary appear.— 2 Keb. 366; 2 Hawk., ch. 25, §§ 16, 126; Bac. Ab. Indict- ment, i; Burn, J., Indictment, ix; Williams, J., Indictment, iv; Stark. C. P. 236-7; R. v. Butterfield, 2 Man. .& Ry. 522. For early rulings in this coun- try, see Jerry v. State, 1 Blackf. (Ind.) 395; Beauchamp v. State, 6 Blackf. (Ind.) 299; State v. Glas- gow, 1 N. C. (Conf.) 38, 2 Am. Dec. 629; State v. Yancy, 1 Tread. (S. C.) 237; Bonds v. State, 8 Tenn. (Mart. & Yerg.) 143, 17 Am. Dec. 795. — The caption then must state that they are "of the county afore- said," or other vill or precinct for which the court had jurisdiction to inquire; and if these words are omitted the whole will be vicious. —Cro. Eliz. 667; 2 Keb. 160; 2 Hale 167; 2 Hawk., ch. 25, §§ 16, 126; Bac. Ab. Indictment, i; Burn, J., Indictment, ix; Williams, J., Indictment, Iv; Tipton v. State, 7 Tenn. (Peck) 308; Cornwell v. State, 8 Tenn. (Mart. & Yerg.) 147. The caption, by implication, at least, must show that the grand jury were of the county where the indictment was taken. — Tipton v. State, 7 Tenn. (Peck) 308; Wood- sides V. State, 3 Miss. (2 How.) 655. — Names of grand jurors, under present practice, need not be given In the indictment. — R. v. Marsh, 6 Ad. & El. 236, 33 Eng. C. L. 143; R. V. Aylett, 6 Ad. & El. 247, 33 Eng. C. L. 148. Contra: In Georgia. See Form No. 21. If the names are given, a vari- ance as to one of them Is not fatal. — State V. Norton, 23 N. ,T. L. (3 Zab.) 33; State v. Dayton, 23 N. J. L. (3 Zab.) 49. §135 INDICTMENT — AMENDING CAPTION. 195 plied in the court in wHcli it is taken, by reference to otlier records there,^ since when the indictment remains Where it appeared by the record that a foreman was appointed, and the indictment was returned, signed hy him, and the caption stated that the grand jury returned the bills into court by their fore- man, it was held sufficient evidence that the bill was returned by the authority of the grand jury. — Gree- son V. State, 6 Miss. (5 How.) 33. —"Oath" or "oaths," as to whether averment of is material, see Com. v. Sholes, 93 Mass. (11 Allen) 554; State v. Dayton, 23 N. J. L. (3 Zab.) 49, 53 Am. Dec. 270; infra, § 326. If the caption omit to state the grand jury were sworn, it will be presumed they were sworn; at least the recital in the record that "the grand jury were elected, em- panelled, sworn, and charged," will be sufficient. — MoClure v. State, 9 Tenn. (1 Yerg.) 206, per Catron, J. In New York it was ruled that an indictment taken at the ses- sions must, in the captidn, state that the grand jury were, then and there, sworn and charged; the omission of the words "then and there" being fatal on motion in arrest of judgment. — People v. Guernsey, 2 John. Gas. (N. Y.) 265; but the contrary was held in Mississippi, where it was said that, if it appear from the record that the grand jurors were sworn, It will be presumed that they were ■ then and there sworn. — ^Woodsides V. State, 3 Miss. (2 How.) 655. — When an indictment purports to be on affirmation of some of the grand jurors, it is said. In New Jersey, that it must appear that they were persons entitled by law to take affirmations in lieu of oaths, or it will be fatally defec- tive. — State V. Harris, 8 N. J. L. (3 Halst.) 361. But such is not the usual prac- tice; the indictment going no fur- ther, in most states, than to aver the fact of its being made on the oaths and affirmations of the grand jurors. — Com. v. Fisher, 73 Mass. (7 Gray) 492. 1 ALA. — State v. Murphy, 9 Port. 487; Reeves v. State, 20 Ala. 33. ARK. — Cornelius v. State, 7 Bng. 782. MASS.— Com. v. Mullen, 95 Mass. (13 Allen) 551; Com. v.' Hines, 101 Mass. 33. MO.— Kirk v. State, 6 Mo. 469; State v. Free- man, 21 Mo. 481. N. J.— State v. Useful Man. So., 42 N. J. L. (13 Vr.) 504. N. Y. — Dawson v. Peo- ple, 25 N. Y. 399. PA.— Pennsyl- vania V. Bell, Add. 156, 173, 1 Am. Dec. 298; Brown v. Com., 78 Pa. St. 122; Com. v. Bechtell, 1 Am. L. J. 414. OHIO— Mackey v. State, 3 Ohio St. 362. S. C— State v. Creight, 1 Brev. 169, 2 Am. Dec. 656. VT.— State v. Brady, 14 Vt 353. WIS.— Allen v. State, 5 Wis. 329. FED. — United States v. Thomp- son, 6 McL. 152, 156, Fed. Gas. No. 17154. ENG. — Faulkner's Case, 1 Saund. 249, 85.Eng. Repr. 292; Broome v. R., 12 Ad. & El. N. S. (12 Q. B.) 834, 64 Eng. C. L. 834; R. V. Davis, 1 Car. & P. 470, 12 Eng. C. L. 274. As to particularity required In Indiana, see State v. Connor, 5 Blackf. (Ind.) 325. As to Massachusetts practice, see Com. v. Gee, 60 Mass. (6 196 criminaij peocedube, §§ 136, 137 in the court of finding a caption is unnecessary.^ And it is also held that the caption may be amended in the Supreme Court, on proper evidence of the facts ; or the certiorari may be returned to the court below, and the amendment made there.* § 136. Commencement must avek office and place op GEAND JUEOES, AND ALSO THEiE OATH. It is Ordinarily suffi- cient for the commencement to state that the grand jurors of the State or Commonwealth, inquiring for the particu- lar county or city, as the case may be, on their oaths or affirmations^ respectively," find the special facts making up the charge.* The authority of the sovereign is in this way vouched.* § 137. Each count must contain avbement of oath. It must appear in the commencement of each count of an indictment that it was found by the jurors of the par- ticular jurisdiction, on their oaths or affirmations,^ and a want of such allegation in a subsequent count will not be aided by such allegations in a former count, where the Cush.) 174; Com. v. Stone, 69 3 The commencement of an in- Mass. (3 Gray) 453; Com. v. Cul- dictment in these words, "The Ion, 77 Mass. (11 Gray) 1. grand jurors for the people of the As to Wisconsin, see Fitzgerald state of Vermont, upon their oath, V. State, 4 Wis. 395, and see cases Present," etc., is sufficient, on mo- cited supra, § 133. "°^' '-^ *'''■««* «* judgment.-State V. Nixon, 18 Vt. 70, 46 Am. Dec. 2 Wagner v. People, 4 Abb. App. j3g_ Dec. (N. Y.) 509. ' . . „ ». „ ^ As to when "oaths" and not 3 State V. Jones, 9 N. J. L. "oath" is used.— Com. v. Sholes, 95 (4 Halst.) 357, 17 Am. Dec. 483; Mass. (13 Allen) 554; State v. Day- State V. Norton, 23 N. J. L. ton, 22 N. J. L. (2 Zabr.) 49. (3 Zab.) 33; Vandyke v. Dare, 1 ,„ ^.^^^^ ^^^ statutory form of Bail. (S. C.) 65; State v. Williams, ^^^^^^^^^^^^ ..j^ the name and 2 McC. (S. 0.) 301. ^jy tijg authority of the state of 1 As to oaths of grand jurorsj Texas" Is essential, and can not see, ante, § 134,' footnote 9 ; post, be varied. — Saine v. State, 14 Tex. §137. App. 144. 2 This is essential.— Vanvickle « Savage v. State, 18 Fla. 909. V. State, 22 Tex. App. 625, 2 i2 Hale 167; 2 Hawk., ch. 25, S. W. 642. §126; Burn, J., Indictment, Ix. §138 INDICTMENT — NAME OF DEPENDANT. 197 word "aforesaid," or other words of reference, are not introduced.^ It is not necessary that the commencement should use the term "grand" before jurors, when the rest of the record shows that it was "grand jurors" that was meant.* The indorsement upon an indictment is no part of it.* IV. Name and Addition of Defendant and Nam,e of Prosecutor and Third Parties. 1. As To Defendant. § 138. Name op defendant should be specifically GIVEN, The indictment must be certain as to the defen- dant's name.^ The name should be repeated to every dis- L. (3 Zal3.) 49; 53 Am. Deo. 270; Jerry v. State, 1 Blackf. (Ind.) 395. Commencement may be amended. See Com. v. Colton, 77 Mass. (11 Gray) 1; State v. Mathis, 21 Ind. 277; State v. England, 19 Mo. 481. Distinction between "caption" and "commencement" is not main- tained by some of our courts, both, by such courts, being called "cap- tion." But as both are purely for- mal, and are open to amendment by the record, they should be so amended when faulty. 2R. V. Waverton, 17 Q. B. 562, 2 Den. C. C. 347, 79 Eng. C. L. 561; State V. McAllister, 26 Me. 374. Otherwise when the second and subsequent counts refer to the first count by the word "aforesaid." — State V. Dufour, 63 Ind. 567; Chase V. State, 50 Wis. 510, 7 N. W. 376. 3 State V. Pearce, 14 Fla. 153; Com. V. Edwards, 70 Mass. (4 Gray) 1; United States v. Will- iams, 1 Cliff. 5, Fed. Cas. No. 16707. 4 Collins V. People, 39 111. 233. 1 Bac. Abr. Misn. B.; 2 Hale ALA. — Morgan v. State, 19 Ala. 556. IND.— Clark v. State, 1 Ind. 253. ME.— State v. Conley, 39 Me. 78. MASS. — Com. v. Fisher, 73 Mass. (7 Gray) 492. MISS.— Byrd V. State, 2 Miss. (1 How.) 163; Abram v. State, 25 Miss. 589. OHIO— Young V. State, 6 Ohio 435. S. C— State V. Williams, 2 McC. 301. VT.— State v. Nixon, 18 Vt. 70, 46 Am. Dec. 135. VA.— Burgess V. Com., 2 Va. Cas. 483. As to requiring this should be shown by caption, see Potsdamer V. State, 17 Fla. 895. As to inserting "good and law- ful men," see Weinzorpflin V. State, 7 Blackf. (Ind.) 186. Usual form is, "The grand jurors of the state (or commonwealth) of A, inquiring for the city (or town) of B, upon their oaths and affirma- tions respectively do present." To this, as a title, is prefixed the statutory name of the court. See, for forms in full. Forms Nos. 1-78 for particular jurisdiction. "Oath" may supply the place of "oaths." — State v. Dayton, 23 N. J. 198 CRIMINAL PROCEDUBB. §§ 139, 140 tinct allegation; but it will suffice to mention it once as the nominative case in one continuing sentence. When once given in full, the name need only be repeated by the Christian title as "the said John" or "James," as the case may be.^ But each count must describe the defendant by his full name.* § 139. Omissiotst of surname is eatal. If the surname of the defendant be omitted in the presenting portion of an indictment, the defect is fatal, though the full name be mentioned in subsequent allegations referring to the name as their antecedent.* § 140. Mistake as to either suRisrAMB ok Chbistiax NAME MAY BE MET IN ABATEMENT. A plea lu abatement, in the language of Mr. Chitty, has always been allowed when the Christian name of the defendant is mistaken,* but it seems formerly to have been supposed that an error in the surname was not thus pleadable.^ But it is now the settled law that a mistake in the latter is equally fatal with one in the former.' A plea in abatement is the only way to meet the misnomer of the defendant; and this plea is too late after the general issue.* 175; Chitty's C. L. 167; Enwright Misn. B.; Burn, J., Indict; Gilb. V. State, 58 Ind. 567. See 22 Cent. C P. 217; Washington v. State, 68 Law J., 220. Ala. 85. Caption need not contain name 2 2 Hale 176; 2 Hawk., ch. 25, of person indicted. — State v. Parks, § 69 ; Burn, J., Indict. ; Williams, 61 N. J. L. 468, 39 Atl. 1023. J., Misn. Bac. Ab. Misn. B.; Com. 2 State V. Pike, 65 Me. 111. v. Demain, Brightly (Pa.) 441. 3 R. V. Waters, 1 Den. C. C. 356; 3 10 East 83; Kel. 11, 12. Com. V. Sullivan, 72 Mass. (6 Gray) 4 ALA.— Miller v. State, 54 Ala. 478. 155. IOWA— State v. White, 32 Indictment bad against "Edward Iowa 17. ME.— State v. Bishop, 15 Toney Joseph Scott," laborers, in- Me. 122; State v. Nelson, 29 Me. tended for Edward Toney and 329. MASS. — Smith v. Bowker, 1 Joseph Scott. — State v. Toney, 13 Mass. 76; Com. v. Lewis, 42 Mass. Tex. 74. (1 Met.) 151; Com. v. Fredericks, 1 State V. Hand, 1 Eng. (Ark.) 119 Mass. 199. R. I. — State v. 165. Drury, 13 R. I. 540. TEX.— Foster 1 2 Hale 176, 237, 238 ; 2 Hawk., v. State, 1 Tex. App. 531. VA.— ch. 25, §68; Bac. Ab. Ind. G. 2, Com. v. Cherry, 2 Va. Cas. 20. §§141,142 INDICTMENT — SUENAME AND llilAS, 199 When tlie issue is tried on plea in abatement, if the sound of the name is not affected by the misspellings, the error will not be material." If two names are, in original derivation, the same, and are taken promiscuously in com- mon use though they differ in sound, yet there is no vari- ance.* A blank in either Christian name or surname is ground for a motion to quash, or plea in abatement. § 141. SuENAMB MAY BE LAID AS AN ALIAS. The Surname may be such as the defendant has usually gone by or acknowledged ; and if there be a doubt which one of two names is his real surname, the second may be added in the indictment after an alias dictus,^ thus, "Eichard Wilson, otherwise called Richard Layer." Proof of either wUl be enough.* § 142. Inhabitants op parish and coepoeation* may be INDICTED IN coepokate NAME FOE DISOBEDIENCE. The inhabi- tants of a parish, in England, may be indicted for not repairing a highway, or the inhabitants of a county, for not repairing a bridge, without naming any of them.^ And in Pennsylvania it was determined, that, where an act of assembly directed "the president, managers, and 5 10 East 84; 16 East 110; 2 admitting that a person can not Hawk., ch. 27, § 81. Infra, § 161; have two Christian names at the Whart Grim. Ev., §§94 et seq. game time, yet he may be called As to plea, see, infra, chapter j,y ^^^^ g^jjj names, which is suffl- on "Pleas." division IV. ^.j^nt to support a declaration or 6 2 Rol. Ab. 135; Bac. Ab. Misn., i^^i^^nient^ baptism being imma- where the instances of this prin- terial.— R. T. H. 26; 6 Mod. 116; clple are stated at large. ^ Camp 479. iBro. Misn. 37. , ^ ..,, ,. , u ^i. ^ * . -r-, ^j. .. an »,. e. ot.t_ Lord Ellenborough said that for 2 Evans V. State, 62 Ala. 6; State „ ^ , / « .. ^r r,= T. rct m \ otn all he knew, on a demurrer, Jona- V. Graham, 15 Rich. (S. C.) 310. ■ ^. , t i, .. ■ ..x .. .... „i, ., „, than, otherwise John," might be It was once doubted whether " .. ,, , „.,„ „ „, .. „ all one Christian name. — Scott v. there could be an alias of the „ „„....., „. . .. , ., . „„ -CO. Soans, 3 East 111. Chnstian name. — 1 Ld. Raym. 562; "' Willes, 554; Burn, J., Indict; 3 i As to form for Indictment of East 111 corporation, see Form No. 88. Mr. Chltty well argues this doc- 2 2 Roll. Abr. 79; Archbold's trine is not well founded; for, C. P. 25. 200 CKIMINAIi PKOCEDXJKE. § 143 company" of a certain turnpike road to remove a gate on the road, an indictment ■w^onld not lie against the president and managers, individually, for not removing the gate.^ In Maine, however, it is said, that where an offense is committed by virtue of corporate authority, the individuals concerned in its commission, in their per- sonal capacity, and not as a corporation, must be in- dicted;* and in Virginia it has been ruled, still more broadly, that a corporation can not be impleaded crimi- naliter by its artificial name at common law.^ But for all disobedience to statutes and derelictions of duty, the better opinion is that a corporation aggregate may be indicted by its corporate name; which name must, as a rule, be correctly alleged as it existed at the time of the offense.® § 143. Middle names to be given when essential. In several jurisdictions it has been determined that the law does not recognize more than one Christian name, and, therefore, when the middle names of the defendant are omitted, the omission is right.^ And the same view is taken in Ohio and Tennessee, with the qualification that if a middle name is nevertheless set out, it must be 3 Com. V. Demuth, 12 Serg. & R. of Manchester, 7 El. & Bl. 453, 90 (Pa.) 389. Eng. C. L. 453; R. v. Great North. 4 SUte V. Great Works, 20 Me. of England R. Co., 9 Ad. & El. 41, 37 Am. Dec. 38. N. S. (9 Q. B.) 315, 58 Eng. C. L. Q-IA 5 Com. V. Swift Run Gap Turn- ''■^'■ pike Co., 2 Va. Cas. 362. See Kerr's See, also, cases cited in Kerr's Whart. Crim. Law, §§ 116-122. Whart. Crim. Law, §§ 116-122. 6 MASS.— Com. V. Phlllipsburg, l ALA. — Edmundson v. State, 17 10 Mass. 78; Com. v. Dedham, 16 Ala. 179, 52 Am. Dec. 169; Cleve- Mass. 142. N. Y. — McGarry v. Peo- land v. Pollard, 37 Ala. 556. pie, 45 N. Y. 153. PA.— Com. v. ARK.— Stat© v. Smith, 7 Eng. 622. Demuth, 12 Serg. & R. 389. VT.— IND.— West v. State, 48 Ind. 483; State V. Vermont, C. R., 28 Vt. 583. Cohen v. State, 52 Ind. 347, 21 Am. ENG.— R. V. Birmingham & Glou- Rep. 179. IOWA— State v. Will- cester R. Co., 3 Ad. & El. Q. B. iams, 20 Iowa 98. MO. — State v. 223, 43 Eng. C. L. 708 ; Firkin v. Martin, 10 Mo. 391. N. Y. — Rooze- Bdwards, 9 Car. & P. 478, 38 Eng. velt v. Gardiner, 2 Cow. 463; Peo- C. L. 283; R. v. Mayor, etc.. City pie v. Cook, 14 Barb. 259. R. I. — §144 INDICTMENT — ^INITIALS SUFFICIENT WHEN. 201 proved as laid.^ It was held a misnomer, however, in Massachusetts, when T. H. P. was indicted by the name of T. P.* The omission of the first name, giving only the middle, is fatal, unless the party is only known by the middle name.* The better view is that when a party is known by a combination of names, by these he should be described; though it is otherwise when he is only known by a single name.® § 144. Initials sufficient when used by pakty him- self. Where names are ordinarily written with an abbre- viation, this will be sufficient in an indictment.^ And where a man is in the habit of using initials for his Chris- tian name, and he is so indicted, and the fact whether he was so known is put in issue, and he is convicted, the court will not interfere on that ground.^ state V. Funy, 13 R. I. 623. TEX.— State V. Manning, 14 Tex. 402. ENG. — R. V. Newman, 1 Ld. Raym. 562, 91 Bng. Repr. 1275. Insertion of middle letter In In- dictment immaterial. — Borroughs V. State, 17 Fla. 643. IVIiddle name "Ann" instead of "Jane" in indictment held to be immaterial. — Pace v. State, 69 Ala. 231; Brooks v. State, 83 Ala. 79, 3 So. 720 (like holding as to "Rooks" and "Rux"). 2 Price V. State, 19 Ohio 423; State V. Hughes, 31 Tenn. (1 Swan.) 261. Contra: People v. Lockwood, 6 Cal. 205; Miller v. People, 39 111. 457. 3 Com. V. Perkins, 18 Mass. (1 Pick.) 388. See to same effect, SUte V. Homer, 40 Me. 438; Com. V. Hall, 20 Mass. (3 Pick.) 362. 4 state V. Martin, 10 Mo. 391; State V. Hughes, 31 Tenn. (1 Swan.) 266; Hardin v. State, 26 Tex. 113. 5 Whart. Grim. Ev., § 100. See Pace V. State, 69 Ala. 231, 44 Am. Rep. 513. 1 State V. Kean, 10 N. H. 347, 34 Am. Rep. 162. See Com. v. Kelcher, 60 Ky. (3 Mete.) 484, where "Mrs. Kelcher" was held sufficient on demurrer. Contra: Gatty v. Field, 9 Ad. & El. N. S. (9 Q. B.) 431, 58 Eng. C. L. 428. 2 CONN.— Tweedy v. Jarvis, 27 Conn. 42. ILL. — ^Vandermark v. People, 47 III. 122. MO.— SUte v. Johnson, 93 Mo. 73, 317, 5 S. W. 699, 6 S. W. 77. N. C— State v. Bell, 65 N. C. 313; State v. John- son, 67 N. C. 58. S. C— City Coun- cil V. King, 4 MoC. 487; State v. Anderson, 3 Rich. 172. TEX. — State V. Black, 31 Tex. 560. ENG.— R. V. Dale, 17 Ad. & EI. N. S. (17 Q. B.) 64, 79 Bng. C. L. 63. 202 CRIMINAL PBOCEDURK. §l?t5 Motion to quash will be refused when based simply on the adoption of initials for Christian names.* § 145. Pabty can not dispvte a name accepted by him. If a man, by his own conduct, renders it doubtful what cited, infra, See, also, cases |§ 157-159. In Texas initials are sufficient under statute. — McAfee v. State, 14 Tex. App. 668. "Lord Campbell, when an objec- tion was made to a recognizance taken before Lee B. Townshend, Esq., and I. H. Harper, Esq., that only the initials of the Christian names of the justices were men- tioned, remarked: 'I do not know that these are initials; I do not know that they (the justices) were not baptized with those names; and I must say that I can not acquiesce In the distinction that was made in Lomax v. Tan- dels, that a vowel may be a name, but a consonant can not. I allow that a vowel may be a Christian name, and why may not a con- sonant? Why might not the par- ents, for a reason good or bad, say that their child should be baptized by the name of B, C, D, F, or H? I am just Informed, by a person of most credible authority, that within his own knowledge a per- son has been baptized by the name of T.' And in this opinion of the chief. Justices Patterson, Wight- man, and Erie concurred, R. v. Dale, 15 Jur. 657, 5 B. L. & E. 360."— 18 Alb. L. J. 127. See, also. Tweedy v. Jarvis, 27 Conn. 42. In Kinnersley v. Knott, 7 C. B. 980, Mr. Sergeant Talfourd con- tended that a defendant called "John M. Knott" was not legally and properly designated, saying that the letter M, standing by itself, could not be pronounced and meant nothing, but that in this connection it meant something, and that that something ought to be stated, for the law forbade the use of initials in pleadings. The court, however, held that M was not a name. Maule, J., said that vowels might be names, and that in Sully's Memoirs a Monsieur D'O is spoken of; but that con- sonants could not be so alone, as they require in pronunciation the aid of vowels; and the chief jus- tice said that the courts had de- cided that they would not assume that a consonant expresses a name, but that it stood for an Initial only, and that the insertion of an initial instead of a name was a ground of demurrer. In this country, as we have seen, single consonants may be names. — 18 Alb. L. J. 127. See State v. Brite, 73 N. C. 26; Mead T. State, 26 Ohio St. 505. If record shows that the initial Is not the full name, the variance may be fatal. — State v. Webster, 30 Ark. 166. In Gerrlsh v. State, 53 Ala. 476, the defendant was indicted by the name of P. A. Gerrish, and he pleaded that his name was not P. A. Gerrish, but Prank Augustus Gerrish, and that he was generally known as Frank A. Gerrish, and that this was known to the grand jury that indicted him. The plea was held good. 3 United States v. Winter, 13 Blatch. 276, Fed. Cas. No. 16743. §§ 146, 147 INDICTMENT ^UNKNOWN PAETT. 203 his real name is, he can not defend himself on the ground of misnomer, if he be indicted by a name commonly ac- cepted by him.i § 146. Unknown party may be appeoximately de- scribed. Where the name of the defendant is unknown, and he refuses to disclose it, he may be described as a person whose name is to the jurors unknown, but who is personally brought before them by the keeper of the prison;^ but an indictment against him as a person to the jurors unknown, without something to ascertain whom the grand jury meant to designate, will be insufficient.^ The practice is to indict the defendant by a specific name, such as John No-name, and if he pleads in abate- ment, to send in a new bill, inserting the real name which he then discloses, by which he is bound. This course is in some States prescribed by statute.' A known party can not be indicted as unknown,* and if it appear that the grand jury knew the name, the indict- ment may be quashed." The Christian name may, if necessary, be averred to be unknown.® The pleading as to imknown co-conspirators is else- • where discussed.'' § 147. At common TjAW addition is necessary. Stat. 1 Henry 5, c. 5, in force in most of the United States, speci- fies the following additions: "Estate or degree, or mys- 1 People V. Leong Quong, 60 Cal. 4 Infra, § 154? Whart. Crim. Ev., 107; State v. Bell, 65 N. C. 313; 9tli ed., §97; Geiger v. State, 5 Newton v. Maxwell, 2 Crompt & lo^^, 484. Jer. 2, 15; Whart. Crim. Sv., § 95. As to Christian name, see Stone o,. . . „ on TVT r, ,T '^- state, 30 Ind. 115; Wilcox v. 1 State V. Angell 29 N. C. (7 state, 31 Tex. 586. IredO 27. _._... b Jones t. State, 63 Ala. 27. 6 Bryant v. State, 36 Ala. 270; 2 R. V. , R. & R. 489. 3 See Geiger v. State, 5 Iowa 484, Kelley v. State, 25 Ark. 392; Smith where, under such a statute, it v. Bayonne, 23 La. Ann. 78. was held necessary to give a ficti- 7 Kerr's Whart. Crim. Law, tious name. § 1660. 204 CEIMINAL PROCEDUKE. §148 tery"; and also the addition of the "towns, or hamlets, or places, and counties of which they were or be, or in which they be or were conversant."^ The construction given to the statute in England has been, that the words "estate or degree" have the same signification, and in- clude the titles, dignities, trades, and professions of all ranks and descriptions of men.^ The omission of the addition is at common law fatal,* but in most jurisdic- tions additions are no longer necessary.* § 148. Wrong addition to be met by plea in abate- ment. Though, when there is no addition, the correct course at common law is to quash, yet, when there is a misnomer, the only method of meeting the error is by plea in abatement.^ The error, however, must be one of sub- stance ; hence a plea in abatement that James Baker is a husbandman, and not a laborer, being demurred to, was adjudged bad.^ 1 As to Pennsylvania, see Rob- erts's Dig., 2d ed., 374. 2 2 Inst. 666. This statute is in force in Pennsylvania. — Com. v. France, 3 Brewster (Pa.) 148. 3 State V. Hughes, 2 Har. & McH. (Md.) 479; Com. v. Sims, 2 Va. Cas. 374. As to Indiana, see State v. Mc- Dowell, 6 Blackf. (Ind.) 49. 4 IVIystery means the defendant's trade or occupation; such as mer- chant, mercer, tailor, schoolmas- ter, husbandman, laborer, or the like.— 2 Hawk., ch. 33, § 111. Where a man has two trades, he may be named of either. — 2 Inst. 658. But if a man who is a "gen- tleman" in England be a trades- man, he should be named by the addition of gentleman. — 2 Inst. 669. In all other cases he may be in- dicted by his addition of degree or mystery, at the option of his prose- cutor. See Mason v. Bushel, 8 Mod. 51, 52; Horspoole v. Harri- son, 1 Str. 556, 93 Eng. Repr. 967; Smith V. Mason, 2 Str. 816, 93 Eng. Repr. 868, 2 Ld. Raym. 1541, 92 Eng. Repr. 499. 1 ALA. — Lynes v. State, 5 Port. 236, 30 Am. Dec. 557. IOWA— State V. White, 32 Iowa 17. ME.— State V. Nelson, 29 Me. 329 ; State V. Bishop, 15 Me. 122. MASS.— Smith V. Bowker, 1 Mass. 76; Com. V. Lewis, 42 Mass. (1 Met.) 151. PA. — Com. V. Demain, Brightly 441. VA.-^Com. V. Cherry, 2 Va. Cas. 20. 2 Haught V. Com., 2 Va. Cas. 3. See, however. Com. v. Sims, 2 Va. Cas. 374. In ordinary cases it has been held sufficient to give the addition of yeoman or laborer. — 8 Mod. 51, 52; 1 Str. 556; 2 Str. 816; 2 Ld. Raym. 1541. But laborer (R. v. Franklyn, 2 Ld. Raym. 1179), or yeoman (2 §§149,150 INDICTMENT — ^RESIDENCE, " JUNIOK. " 205 § 149. Defendant's eesidence must be given. The de- fendant must be described as of the town or hamlet, or place and coimty, of which he was or is, or in which he is or was, conversant.^ In most States, the forms in common use give the addition of place, as "late of the said county," or "of the county of ." The place may be averred to be that of the commission of the crime.^ §150. "Junior" must be alleged when party is KNOWN AS SUCH. "Where a father and son have the same name, and are both indicted, the English rule was to dis- tinguish them by naming one as the elder, the other as the younger;^ though such seems no longer requisite;^ and the general rule in this country is that junior is no necessary part of the name,-'' though it has been held that when L. "W. and L. "W., Junior, being father and son, lived in the same place, and the indictment avers cer- tain acts to be done by L. "W., evidence is inadmissible to show that they were done by L. W., Junior, it being Inst. 668), is not a good addition Where addition descriptive. — for a woman. Where, in an indictment against a Servant is not a good addition in woman, she is described as A. B., any case. — R. T. Checkets, 6 M. & "wife of C. D.," these latter words S. 88. are mere additions, or descriptio As to tradesmen, etc., the addi- P«rsonae, and need not be proved tion of the mystery; to widows, <"i trial.— C!om. v. Lewis, 42 Mass. the addition of widows; to single (■'• Miet.) 151. women, the addition of spinster or ^ Arch. C. P. 27. single woman; to married women, 2 Com. v. Taylor, 113 Mass. 1. usually thus: "Jane, the wife of H Bulst. 183; 2 Hawk., eh. 25, John Wilson, late of the parish of | 70; Salk. 7. C, in the county of B, laborer," 2 Gevaghty v. State, 110 Ind. 103, though "matron" is not fatal.— n n. E. 1; R. v. Peace, 3 Bam. State V. Nelson, 29 Me. 329. & Aid. 579, 5 Eng. C. L. 334; Hodg- Any addition calculated to cast son's Case, 1 Lewin C. C. 236. But contempt or ridicule on the defen- see R. v. Withers, 4 Cox C. C. 17. dant is bad; and it has been held, 3 CAL. — San Francisco v. Ran- in Maine, that the addition, "lot- dall, 54 Cal. 408. CONN. — Coit v. tery vender," when the defendant Starkweather, 8 Conn. 289. MB. — was. In fact, a lottery broker, is State v. Grant, 22 Me. 171. bad on abatement. — State v. MASb. — Com. v. Perkins, 18 Mass. Bishop, 15 Me. 122. (1 Pick.) 388; Com. v. East Boston 206 CRIMINAL PROCEDURE. § 151 I)resTimecl L. W. in the indictment meant L. W., Senior.* In New York, in an early case, it was said that if a man be known by the addition of "junior" to his name, an indictment against him without that addition is not con- clusive that he is the person indicted.* The question is one of usage. If a party is commonly known as "Junior" or as "2d," as such he must be indicted; otherwise not.* 2. Description of Parties Injured and Third Parties. § 151. Name only of thikd pehson need be given. The statute of additions extends to the defendant alone, and does not at all affect the description either of the prose- cutor, or any other individuals whom it may be necessary to name;^ and therefore no addition is in such case nec- essary, unless more than two persons are referred to whose names are similar.^ It is enough to state a party injured, or any person except the defendant, whose name necessarily occurs in the bill, by the Christian and sur- name; as, for instance, "on John Slycer did make an assault," or, the "goods of John Nokes did steal." The name thus given must be the name by which the person is generally known,* including Christian as well as sur- name.* Ferry Co., 95 Mass. (13 Allen) 589; e Whart. Crlm. Ev., § 100. Com. V. Parmenter, 101 Mass. 211. i 2 Leach 861; 2 Hale 182; Burn, N. H. — State v. Weare, 38 N. H. J., Indictment; Bac. Ab. Indict- 314. N. Y. — People v. Collins, 7 ment, G. 2; Com. v. Varney, 64 John. 549; People v. Cook, 14 Mass. (10 Cush.) 402; R. v. Ogil- Barb. 259. TEX.— McKay v. State, vie, 2 Car. & P. 230, 12 Eng. C. L. 8 Tex. 376. VT. — Allen v. Taylor, 542; R. v. Graham, 2 Leach 547. 26 Vt. 599. Compare: R. v. Deeley, 1 Mood. 4 State V. Vittum, 9 N. H. 519; C. C. 303, 4 Car. & P. 578, 19 Eng. R. V. Bailey, 7 Car. & P, 264, 32 C. L. 858. Eng. C. L.604. 2 Ibid. Contra: R. v. Peace, 3 Bam. & s Walters v. People, 6 Park. Aid. 579, 5 Eng. L. 334. Cr. Rep. (N. Y.) 16; State v. Had- In Com. V. Parmenter, 101 Mass. dock, 3 N. C. (2 Hayw.) 162; R. v. 211, it was held that "W. R., Jr.," Berriman, 5 Car. & P. 601, 24 Eng. might be indicted as "W. R.," the C. L. 729; R. v. Williams, 7 Car. second of that name, & P. 298, 32 Eng. C. L. 623; R. v. 5 Jackson ex dem; Pell v. Pro- Norton, Rus. & Ry. 510. vest, 2 Caines (N. Y.) 165. * Mornlngstar v. State, 52 Ala. §152 INDICTMENT NAME OP CORPORATION. 207 § 152. CoEPOEATE TITLE MUST 'BE SPECIAL. ' When the name of a corporation is given, the corporate title must be strictly pursued, unless specification is made unnec- essary by local statute ;i and there should be an allega- tion that it is incorporated, where such is the fact.^ Where the company is not incorporated, the allegation should be that the intent, — as in a burning to injure the 405; state v. Taylor, 15 Kan. 420; Collins V. State, 43 Tex. 577. Addition is stated descriptively, a variance may be fatal. — R. v. Deeley, 1 Mood. C. C. 303, 4 Car. & P. 579, 19 Eng. C. L. 658; Whart. Crim. Bv., § 100. 1 Supra, §143; Kerr's Whart. Crim. Law, § 1180. ILL.— Wallace V. People, 63 111. 481. IND.— Smith V. State, 28 Ind. 321. N. J.— Fisher V. State, 40 N. J. L. (11 Vr.) 169. N. Y. — McGary v. People, 45 N. Y. 153. TEX.— White v. State, 24 Tex. App. 233, 5 Am. St. Rep. 879, 5 S. W. 857. VT.— State v. Vermont R. R., 28 Vt. 583. VA.— Lithgow V. state, 2 Va. Cas. 296. ENG.— R. V. Birmingham & Glou- cester R. Co., 3 Ad. & El. N. S. (3 Q. B.) 223, 43 Eng. C. L. 708. Whether at common law, in an Indictment for stealing the goods of a corporation, it is requisite to aver that the corporation was in- corporated, has been much dis- puted. That it is necessary Is ruled in: CAL. — People y. Schwartz, 32 Cal. 160. ILL.— Wallace v. People, 63 111. 451. N. J. — Fisher v. State, 40 N. J. L. (11 Vr.) 169. N. Y.— Cohen v. People, 5 Park. Cr. Rep. 330. VT.— State v. Mead, 27 Vt. 722. That it Is unnecessary, unless made so by statute. Is ruled in: IND.— Johnson v. State, 65 Ind. 204. MASS. — Com. v. Phillipburg, 10 Mass. 70; Com. v. Dedham, 16 Mass. 141. N. J. — Fisher v. State, 40 N. J. L. (11 Vr.) 169. N. Y.— People V. Jackson, 8 Barb. 637; People V. McCloskey, 5 Park. Cr. Rep. 57, 334. PA.— McLaughlin v. Com., 4 Rawle 464. ENG.— R. v. Patrick, 1 Leach 253. See, also, Kerr's Whart. Crim, Law, § 921, The question depends upon whether the court takes judicial notice of the charter. — Whart. on Ev., §§292-3. 2 CAL. — People v. Schwartz, 32 Cal. 160. ILL. — Staaden v. People, 82 111. 432, 25 Am. Rep. 333. KAN.— State v. Suppe, 60 Kan. 569, 57 Pac. 106. OHIO— Burke v. State, 34 Ohio St. 81. TEX.— White V. State, 24 Tex. App. 233, 5 Am. St. Rep. 879, 5 S. W. 857. See, however, Emmonds v. State, 87 Ala. 14, 6 So. 54; Mc- Cowan V. State, 58 Ark. 17, 22 ' S. W. 955; People t. Bogart, 36 Cal. 248 ; People v. Henry, 77 Cal. 445, 19 Pac. 830; People v. Gog- '\ gins, 80 Cal. 229, 22 Pac. 206; Peo- ' pie V. Mead, 200 N. Y. 16, 140 Am. St. Rep. 616, 92 N. E. 1051. "Said company being legally es- tablished," used In indictment. Is not equivalent to an allegation that it is Incorporated. — People T. Schwartz, 32 Cal. 160. 208 CEIMINAIi PROCEDURE. §153 insurer ; or the theft of goods, and the like, — ^was to injure the persons composing the company.' §153. Third persons may be described as "un- known." Where a third person can not be described by name, it is enough to charge him as a "certain person to the jurors aforesaid unknown,"^ which, as will presently be seen, is correct, if the party was at the time of the indictment unknown to the grand jury, though he became known afterwards.^ A deceased person may thus be de- scribed as "unknown," when the grand jury have no knowledge of his name;^ and it is to be noted that the same is also true as to the owner of stolen property,* or 3 Wallace v. People, 63 111. 451; 3 Reed v. State, 16 Ark. 499; Staaden v. People, 82 111. 432, 25 State v. Haddock, 2 Hayw. (N. C.) 348; R. V. Camptell, 1 Car. & K. 82, 47 Eng. C. L. 80. "Smutty my Darling," it was held in Wade v. State, 23 Tex. App. 308, 4 S. W. 896, as the given name of the deceased, though pe- culiar, was not bad. 4 2 East P. C. 651, 781; 1 Ch. C. L. 212; 1 Hale 181; 2 Barn. & Aid. 580; Com. v. Morse, 14 Mass. 217; Com. v. Manley, 29 Mass. (12 Pick.) 173; Kerr's Whart. Crim. Law, §1188. "To support the description of 'unknown,' " remarks Mr. Ser- geant Talfourd, "it must appear that the name could not well have been supposed to have been known to the grand jury." — R. v. Stroud, 1 Car. & K. 187, 47 Eng. C. L. 186. A bastard is sufficiently identi- fied by showing the name of its parent, thus: "A certain illegiti- mate male child then lately born of the body of A. B. (the mother)." — R. V. Hogg, 2 M. & Rob. 380. See R. V. Hicks, 2 Ibid. 302, where an indictment for child-murder was held bad for not stating the Am. Rep. 333. 1 2 Hawk., ch. 25, § 71; 2 East P. C. 651, 781; Cro. C. C. 36; Plowd. 85b; Dyer 97, 286; 2 Hale 181. ILL.— Willis V. People, 2 111. (1 Scam.) 399. IND.— State v. Ir- vin, 5 Blackf. 343; Brooster v. State, 15 Ind. 190. IOWA— State V. McConkey, 20 Iowa 574. MASS. — Com. V. Thompson, 56 Mass. (2 Cush.) 551; Com. v. Hill, 65 Mass. (11 Cush.) 137; Com. v. Stoddard, 91 Mass. (9 Allen) 280; Com. V. Sherman, 95 Mass. (13 Allen) 248. MO.— State v. Bryant, 14 Mo. 340. N. Y.— Goodrich v. People, 3 Park. Cr. Rep. 622. TEX.— Mackey v. State, 20 Tex. App. 603. VT. — State v. Higgins, 53 Vt. 191. A Christian name may be averred to be unknown. — Bryant V. State, 36 Ala. 270; Smith v. Bay- onne, 23 La. Ann. 68. 2 Stra. 186, 497 ; Com. v. Hen- drie, 68 Mass. (2 Gray) 503; Com. v. Intoxicating Liquors, 116 Mass. 21. As to vendee in liquor sales, see Kerr's Whart. Crim. Law, § 1806. §153 INDICTMENT — THIRD PERSON AS UNKNOWN. 209 name of the child, or accounting for Its omission. A bastard must not be described by his mother's name till he has acquired it by reputation. — R. v. Clark, R. & R. 358. Contra: Wakefield v. Mackey, 1 Phill. R. 134. A bastard child, six weeks old, who was baptized on a Sunday, and down to the following Tues- day had been called by its name of baptism and mother's surname, was held by Erskine, J., to be properly described by both those names in an indictment for its murder. — R. v. Evans, 8 Car. & P. 765, 34 Eng. C. L. 1009. Bastard was baptized "Eliza," without mentioning any surname at the ceremony, and was after- wards, at three years old, suffo- cated by the prisoner, an indict- ment styling it "Eliza Waters," that being the mother's surname, was held bad by all the judges, as the deceased had not acquired the name of Waters by reputation. — R. V. Waters, 1 Mood. C. C. 457, 2 Car. & K. 864, 61 Eng. C. L,. 862. No baptismal register, or copy of it, was produced at either trial. Semb.: "Eliza" would have suf- ficed. See R. v. Stroud, 1 Car. & K. 187, 47 Eng. C. L. 186, and cases collected; Williams v. Bryant, 5 M. & W. 447. In the previous case of R. v. Clark, R. & R. 358, an indictment stated the murder of "George Lakeman Clark, a base-born infant male child, aged three weeks," by the prisoner, its mother. The child had been christened (Jeorge Lake- man, being the name of its reputed father, and was called so, and not by any other name known to the witnesses. Its mother called it so. There was no evidence that it had I. Crim. Proo. — 14 been called by or obtained Its mother's name of Clark. The court held that the child was incor- rectly described as Clark, and as nothing but the name identified him in it, the conviction was held bad. See, also, R. v. Sheen, 2 Car. & P. 634, 12 Eng. C. L. 776. However, in R. v. Bliss, 8 Car. & P. 773, 34 Eng. C. L. 1014, an indictment against a married wo- man for murder of a legitimate child, which stated "that she, in and upon a certain infant male child of tender years, to wit, of the age of six weeks, and not bap- tized, feloniously and wilfully, etc., did make an assault," etc., was held insufficient by all the judges, as it neither stated the child's name, nor that it was "to the jurors unknown." It is, however, sufficient to describe the child "as a certain male child, etc., of ten- der age, that is to say, about the age of six weeks, and not bap- tized, born of the body of C. B." See 2 C. & P. 635, n.; R. v. Willis, 1 Car. & K. 722, 47 Eng. C. L. 720; see, also, R. v. Sheen, 2 Car. & P. 634, 12 Eng. C. L. 776; Dickins, Q. S., 6th ed., 213. Junior and Senior. The law as to defendants on this point has been already stated, § 108. In England, it is said that where the party injured has a mother or father of the same name, it is better to style the prosecutor "the younger," as it may be presumed that the parent is the party meant; for George Johnson means G. J. the elder, unless the contrary Is expressed. — Singleton v. Johnson, 9 M. & W. 67. But this was held immaterial when it is sufficiently proved who Elizabeth Edwards, the party de- 210 CRIMINAL PEOCEDUKB. §154 an assaulted person." Unless there be such an averment, an indictment in which the injured party is not individu- ated can not be sustained.® — But this aLiLEGation jlay be travbesed. But §154._- if the third party's name be known to the grand jury, or could have been known by inquiry of witnesses at hand, the allegation will be improper, and the defendant must be acquitted on that indictment, though he may be afterwards tried upon a new one, in which the mistake is corrected.^ Discovery of the name subsequently to the finding of the, however, is no ground for acquittal,^ or arrest of judgment.^ But the allegation that co- defendants are "unknown" is material, and may be trav- scribed assaulted, was, viz., the daughter of another Elizabeth Ed- wards. — R. V. Peace, 3 Bam. & Aid. 579, 5 Eng. C. L. 334. Indicted for the murder of bas- tard child, whose name was to the jurors unknown, of mother, where it appeared that the child had not been baptized, but that the mother had said she would like to have it called Mary Ann, and little Mary, the indictment was held good. — R. V. Smith, 1 Mood. C. C. 402, 6 Car. & P. 151, 25 Eng. C. L. 368. "A certain Wyandott Indian, whose name is unl^y CRIMINAIi PEOCEDUEB. § 194 tration of the degree of certainty required may be found in indictments for bigamy. In such indictments a variance as to the second wife's name is fatal, it being necessary to individuate her, in order to determine the off ense.'^ But the weight of authority is that it is not necessary to set forth the name of the first wife.® And if we lean on the analogy of indictments for receiving stolen goods, we should hold that the more general statement is enough. If we are forced to state in detail the marital relations of the parties, it would be necessary to go still further, and aver that the first wife or husband of the defendant was capable of consenting to marriage, and was not bound by other matrimonial ties. As, however, the first marriage in all its relations is simply matter of induce- ment, it is enough to state it in general terms, without specifying the details. If these are needed for justice, they can be supplied by a bill of particulars.® Where, however, the details of the first marriage are given, a va- riance in the name is fatal.^" The certainty, in other words, must be such, so far as concerns the substance of the offense, as exhibits the truth according to its ordi- nary general acceptation; not the truth with its differ- entia scientifically and exhaustively displayed.^^ § 194. Omission of essential incidents is fatal. We may hold it to be a general rule that, where the act is not in itself necessarily unlawful, but becomes so by its peculiar circumstances and relations, all the matters must be set forth in which its illegality consists.^ Hence, the omission of any fact or circumstance necessary to con- 7 R. V. Deeley, 4 Car. & P. 579* lo R. v. Gooding, Car. & M. 297, 19 Eng. C. L. 858, 1 Mood. C. C. 41 Eng. C. L. 165. 11 See Buller, J., R. v. Lynne Regis, 1 Doug. 159 ; State v. Nich- 303. sHutchlns v. State, 28 Ind. 34; Com. V. Whaley, 69 Ky. (6 Bush) 266; State v. Loftln, 19 N. C. (2 °^'°''' " ^^- ^' ^ ^«- ^l^. Dev. & B.) 31. 1 2 Hawk., ch. 25, § 57; Bac. Ab. 9 Contra: State v. La Bore, 26 Indictment, G. 1; Cowp. 683; Peo- Vt. 265. pie V. Martin, 52 Cal. 201. § 195 INDICTMENT ESSENTIAL INCIDENTS, OMISSION. 239 stitute the offense will be fatal; as, in an indictment for obstructing an officer in the execution of process, without showing that he was an officer of the court out of which the prosecution issued, and the nature of the official duty and of the process.^ An indictment, also, for con- temptuous or disrespectful words to a magistrate is de- fective without showing that the magistrate was in the execution of his duty at the time;^ and an indictment against a public officer for non-performance of a duty without showing that he was such an officer as was bound by law to perform that particular duty,* though the , title of an officer need not be alleged unless it be at issue ; and any unnecessary averments of this class may be re- jected as surplusage.^ It is necessary, also, in an indict- ment for obtaining money under false pretenses, to show whose money it was.® At the same time it is not necessary, when a minor offense is inclosed in a greater, to introduce the aver- ments showing the defendant to have been guilty of the greater offense, though these should be proved by the evidence. The defendant, however, on such an indict- ment, can be convicted only of the minor offense.'^ § 195. Teems must be technicai/LY exact. Not only must all the circumstances essential to the offense be 2 McQuoid V. People, 8 111. (3 in favor of one J. R. v. A. C, and Glim.) 76; Cantiill v. People, 8 that he did extort and receive m. (3 Glim.) 356; State v. Burt, from the said A. C. $11 over and 25 Vt. 373; R. v. Everett, 8 Bam. ahove the fees usually paid for & C. 114, 15 Eng. C. L. 64; R. v. such service, and due in the suit Osmer, 5 Bast. 304. aforesaid, etc.. It was held that the 3 R. V. Lease, Andr. 226. Indictment was not sufficiently 4 5 T. R. 623. precise, it not specifying how 6 Infra, § 200. much he received on his own ac- 6 R. V. Norton, 8 Car. & P. 196, count, and how much on that of 34 Eng. C. L. 686. the officers and memhers of the In New York, where an attorney court. — People v. Rust, 1 Cain, of the Court of Common Pleas (N. Y.) 133. was charged with extortion, and ^ See State v. Bowling, 29 Tenn. the Indictment averred that (10 Humph.) 52; Kerr's Whart. on he obtained a judgment Crim. Law, §§ 33-38. 240 CRIMIN-AL PEOCEDURE. § 196 averred, but these averments must be so shaped as to include the legal characteristics of the offense. Thus, an indictment charging the defendant with forging a receipt against a book-account is defective when it does not bring the facts up to the definition of forgery.^ So an indictment for fornication and bastardy must use the technical expressions which the statutes prescribe.^ The main charges of guilt must be categorically made f and can not be thrown into a participal form.* It is otherwise as to incidental assertions, e. g., scienter, which, though material, are in the nature of qualifications of such mate- rial charges.® § 196. Not enough to chaege conclusion of law. As the indictment must contain a specific description of the offense, it is not enough to state a mere conclusion of law.^ Thus, it would be insufficient to charge the defend- ant with "stealing" or "murdering." ^ So it is bad to accuse him of being a common defamer, vexer, or oppres- sor of many men,^ or a common disturber of the peace, and having stirred up divers quarrels,* or a common forestaller,® or a common thief,® or as to a common evil- 1 Infra, §§196, 269; state V. Dal- 170. MISS.— Finch v. State, 64 ton, 6 N. C. (2 Murpli.) 379. Miss. 461, 1 So. 630. TEX.— Insall 2 Com. V. Pintard, 1 Browne v. State, 14 Tex. App. 145, 154. (Pa.) 59; Simmons v. Com., 1 FED. — And see United States v. Rawle (Pa.) 142. Cruikshank, 92 U. S. 544, 23 L. Ed. 3 Introduction of popular terms 588. does not vitiate It these terms are 2 1 Roll. Rep. 79 ; 2 Roll. Ab. 79 ; surplusage or may be susceptible 2 Stra. 699; 2 Hawk., ch. 25, § 59; of a definite meaning, see Baker Com. Dig. Indictment, G. 3; Bac. V. People, 105 111. 402; Began's Ab. Indictment, G. 1. Infra, § 280. case, 12 R. I. 309. 3 2 Roll. Ab. 79; 1 Mod. 71; 2 4 State V. Higgins, 53 Vt. 191. Stra. 848, 1246, 1247; 2 Hale. 182; BR. V. Lawley, 2 Stra. 904; Com. 2 Hawk., ch. 25, §59; Com. Dig. V. Daniels, 2 Va. Cas. 402. Indictment, G. 3; Bac. Ab. Indict- 1 Infra, § 280. IND. — State v. ment, G. 1. Record, 56 Ind. 107. KAN.— State 4 ibid. Infra, §§ 280, 281. V. Boverlin, 30 Kan. 611, 2 Pac. 5 Moore, 302; 2 Hawk., ch. 25, 630; State v. Foster, 30 Kan. 365, §59; Bac. Ab. Indictment, G. 1. 2 Pac. 628. MICH.— People v. 6 Ibid.; 2 Roll. Ab. 79; 2 Hale HefEron, 53 Mich. 527, 19 N. W. 182; Cro. C. C. 37. § 196 INDICTMENT CONCLUSION OP LAW. 241 doer,'' or a conunon cliainpertor,* or a common conspirator, or any other such vague accusation.® On the same reason- ing, in an indictment for obtaining money by false pre- tenses, it will not suffice merely to state that the defend- ant falsely pretended certain allegations, but it must also be stated by express averment what parts of the repre- sentation were false, for otherwise the defendant will not know to what circumstances the charge of falsehood is intended to apply.^" It is also not sufficient, generally, to charge "malicious mischief" or "malicious injury"; the facts of the injury must be given." An indictment, on the same principle, charging a man with being a com- mon cheat, or a common swindler or defrauder, is bad, and is not helped by an averment that, by divers false pretenses and false tokens, he deceived and defrauded divers good citizens of the said State.^^ A count, also, in an indictment charging that the defendant sold a lot- tery ticket, and tickets, in a lottery not authorized by the laws of the Commonwealth, is bad, not being sufficiently certain;^® and so of an indictment for embezzlement charging unlawful loaning of State money, without stat- ing how or to whom, is bad ;^* and so of a count charging the defendant with voting without having the legal quali- fications of a voter ;i° and so of a charge that election officers "did commit wilful fraud in discharge of duties" 7 2 Hawk., ch. 25, §59; Bac. Ab. i3 Com. v. Gillespie, 7 Serg. & Indictment, G. 1. Infra, §§ 280, 281. R. (Pa.) 469, 10 Am. Dec. 475. 8 2 Hale 182; 2 Hawk., ch. 25, 14 state v. Brandt, 41 Iowa 593. §59; Bac. Ab. Indictment, G. 1. 15 CAL. — People v. Neil, 91 Cal. 9 Ibid.; Com. v. Wise, 110 Mass. 465, 27 Pac. 760. IND. — Quinn v. 181. See Kerr's Whart. Crim. Law, State, 35 Ind. 485, 9 Am. Rep. 754. 18 1695, 1713-1719. N. Y.— People v. Barber, 48 Kun 10 2 M. & S. 379. See Kerr's 198; People v. Wilbur, 4 Park. Whart. Crim. Law, § 1480. Cr. Rep. 19. TENN.— Pearce v, 11 Kerr's Whart. Crim. Law, State, 33 Tenn. (1 Sneed) 63, GO §1331; and see, ibid., §2197. Am. Dec 135. TEX.— Gallagher 12 Kerr's Whart. Crim. Law, v. State, 10 Tex. App. 469. §§1392, 1713-1719, 1721; United Compare: State v. Lockbaum, States V. Royall, 3 Cranch C. C. 38 Conn. 400. 618, Fed. Gas. No. 16201. See infra, §§ 280, 281. I. Crim. Proc— 16 242 CRIMINAL PKOCEDUEB. § 197 is insufficient without setting out the particular acts;^" and so of a count which charges the defendant with un- lawfully and fraudulently adulterating "a certain sub- stance intended for food, to-wit, one pound of confection- gj.y"ji'7 and so an indictment under statute for defraud- ing a hotel-keeper is insufficient, unless the nature and character of the acts and circumstances indicative of fraudulent intent are fully set forth ;^* and so an indict- ment for defrauding by means of divers false and fraudulent tokens, devices, pretenses, and representa- tions, must make specific allegations as to the tokens, devices, pretenses, and representations, or it will be in- sufficient.^® Conspiracy to cheat one of lands and goods being charged, indictment need not state how accomplished,^" because the object of the conspiracy being in itself unlaw- ful, it is not necessary to set out how accomplished.^^ § 197. Exceptions in case op ' * common baera- TOES, " " common scolds, ' ' AND CEETAIN NUISANCES. There are, however, several marked exceptions to the rule re- quiring the offense, in each case, to be specifically set forth. Thus, an indictment charging one with being a ''common barrator";^ or, a "common scold" ;^ or, a Character of election must be is Com. v. Brocken, 8 W. N. C. described or sufficiently identified 280, 14 Phila. 342, 37 Phila. Leg. In the indictment. — Gaudy v. State, Int. 14. 82 Ala. 61, 2 So. 465. 20 People v. Richards, 1 Mich. Indictment for fraudulent regis- 216, 51 Am. Dec. 75; People v. tration which fails to show fraud, Arnold, 46 Mich. 268, 9 N. W. 406. and which fails to state facts 21 People v. Willis, 34 App. Div. showing defendant not entitled to (N. Y.) 203, 54 N. Y. Supp. 642, 14 register, is bad.— United States v. N. Y. Cr. Rep. 414. Hirshfleld, 13 Blatchf. 330, Fed. 1 6 Mod. 311; 2 Hale 182; 1 Rus- Cas. No. 15372. sell 185; 1 Ch. C. L. 230; Kerr's 16 State V. Krueger, 134 Mo. 262, Whart. Grim. Law, §§ 1713-1719, 35 S. W. 604; State v. Mahaey, 19 1721; State v. Dowers, 45 N. H. Mo. App. 210; Com. v. Miller, 2 543; Com. v. Davis, 28 Mass. (11 Pars. Sel. Eq. Gas. (Pa.) 480. Pick.) 432. See Penn. Rev. Act, 17 Com. V. Chase, 125 Mass. 202. 1860, tit. 11. 18 Com. V. Dennis, 1 Lehigh Val- . 26 Mod. 311; 9 Stra. 1246; 2 ley Law Rep. 14. Keb. 409; 1 Russell 302; Com. t. § 198 INDICTMENT — APPROXIMATE DESCRIPTION. 243 "common night-walker,"* is good. The same rule applies to certain lines of nuisance, to describe which generic terms are adequate, as is the case with a "house of ill- fame"; a "disorderly house,"* and a "tippling-house."' So an indictment for betting at faro bank need not set out the particular nature of the game, nor the name of the person with whom the bet was made.® But an indictment, as has just been seen, charging the defendant as a com- mon cheat, is bad.'^ § 198. Matters unknown may be proximately de- scribed. If a particular fact, or condition, which is one of the component parts of the offense, can not be accu- rately described, the indictment will be good, if it state that such fact or condition is unknown to the grand jury, provided that the fact or condition in question be de- scribed as accurately as possible.^ But "this allegation, that the name or other particular fact is 'unknown to the grand jury,' is not merely formal; on the contrary, if it be shown that it was, in fact, known to them, then, the Pray, 30 Mass. (13 Pick.) 362; (5 Cush.) 295, 52 Am. Dec. 711; James V. Com., 12 Serg. & R. (Pa.) Com. v. Ashton, 125 Mass. 384; 220; United States V. Royall, 3 Cr. Com. v. Fenno, 125 Mass. 387; C. C. 618, Fed. Gas. No. 16201. Com. v. Martin, 125 Mass. 394. 3 State V. Dowers, 45 N. H. 543. MINN. — State v. Gray, 29 Minn. i State V. Patterson, 29 N. C. 142, 12 N. W. 455. N. H.— State v. (7 Ired.) 70, 45 Am. Dec. 506. See Wood, 53 N. H. 484. N. Y.— People Kerr's Whart. Crim. Law, §§ 1713- v. Taylor, 3 Den. 91. 1719, 1721. As to instrument of death, see' 5 1 Term R. 754; 1 Russell 301; Com. v. Webster, 59 Mass. (5 State V. Collins, 48 Me. 217; Com. Cush.) 295, 52 Am. Dec. 711; Com. V. Pray, 30 Mass. (13 Pick.) 359; v. Fox, 73 Mass. (7 Gray) 585; Cox State V. Russell, 14 R. I. 506. v. People, 80 N. Y. 500; State v. 6 Pemberton v. State, 85 Ind. Williams, 52 N. C. (7 Jones) 446, 507; State v. Ames, 1 Mo. 372. 78 Am. Dec. 248; Kerr's Whart. See Kerr's Whart. Crim. Law, Crim. Law, § 658. § 1742. As to lost writings, see Com. v. 7 Supra, § 196; infra, §§ 280, 281; Martin, 125 Mass. 394. See, infra, Kerr's Whart. Crim. Law, §§ 1128, § 220. 1391, 1392, 1713. In Winston v. State, 9 Tex. App. 1 Whart. Crim. Ev., § 91 et seq. 251, It was held that a certain MASS. — Com. V. Webster, 59 Mass. "currency note to the jurors un- 244 CBIMINAL PEOCEDUEE. §§199,200 excuse failing, it has been repeatedly held that the indict- ment was bad, or that the defendant should be acquitted, or the judgment arrested or reversed." ^ § 199. BlLIi OP PABTICTJLAHS MAY BE REQUIRED. As wiU hereafter be more fully seen, whether a bill of particulars or specification of facts shaU be required is exclusively within the discretion of the presiding judge.^ In many cases of general charges (e. g., conspiracy, where the indictment merely avers a general conspiracy to cheat), such a specification on the part of the prosecution will be exacted.^ As a general rule, the counsel for the prosecu- tion are to be restricted, after such an order, to proof of the particulars stated in the bill, though this limitation may, in extraordinary cases, be relaxed at the discretion of the court.* § 200. SUEPLTTSAGE NEED NOT BE STATED ; AND IF STATED MAY BE DisRBGAEDED. It is uot requisite to charge in the indictment anything more than is necessary to accurately and adequately express the offense; and when unneces- known" was not sufficient without Pick.) 321; Com. v. Giles, 67 Mass. averring the country in_ which the d Gray) 466. note was currency. And this holds As to embezzlement, see Kerr's good in all cases where there were Whart. Grim. Law, § 1295. means of ascertaining such coun- As to conspiracy, see Kerr's try. Whart. Grim. Law, § 1653. As to names, see, supra, § 146. See, generally, Com. v. Davis, 28 2 Christiancy, J., in Merwin v. Mass. (11 Pick.) 432; Com. v. People, 26 Mich. 298, 12 Am. Rep. Wood, 70 Mass. (4 Gray) 11. 314, citing: ARK. — Reed v. State, 2 People v. McKinney, 10 Mich. 16 Ark. 499. IND. — Blodget v. 54; Goersen v. Com., 99 Pa. St State, 3 Ind. 403. MASS.— Com. v. 388; R. v. Kenrick, 5 Ad. & El. Hill, 65 Mass. (11 Cush.) 137. (Q. B.) 49, 48 Eng. C. L. 48; R. v. MO. — Hays v. State, 13 Mo. 246. Hamilton, 7 Car. & P. 448, 32 Eng. ENG.— R. V. Walker, 3 Camp. 264; C. L. 701; R. v. Brown, 8 Cox R. V. Robinson, Holt N. P. 595, C C. 69. 596, and 1 Chit. Crim. Law, p. 213. sr, y. Esdaile, 1 F. & F. 213; R. 1 Com. V. Snelling, 32 Mass. (15 v. Brown, 8 Cox C. C. 69. §200 INDICTMENT — SURPLUSAGE. 245 sary averments or aggravations are introduced, they can be considered as surplusage, and as such disregarded.^ The following may be given as illustrations of sur- plusage : The averment of "goods and chattels," when used to describe ownership of choses in action when this owner- ship is independently described f Ownership when immaterial f Intent, when unnecessary to the offense ;* Conclusions of law, summing up the offense unneces- sarily; as where an indictment for taking a voluntary false oath, not amounting to perjury, concludes, and "so the said A. B. did commit perjury," etc.;* iSee Whart. Crim. Ev., §§138 et seq. IND. — Kennedy v. State, 62 Ind. 136; Feigel v. State, 85 Ind. 589; Myers v. State, 92 Ind. 390; Trout V. State, 111 Ind. 499, 12 N. E. 1005; Ford v. State, 112 Ind. 373, 14 N. E. 241. MINN.— State V. Munch, 22 Minn. 67. N. Y.— People V. Casey, 72 N. Y. 393 ; Peo- ple V. Pollnsky, 73 N. Y. 65. N. C— State v. Ballard, 6 N. C. (2 Murph.) 186. TENN.— State v. Belville, 66 Tenn. (7 Baxt.) 548. TEX.— Rivers v. State, 10 Tex. App. 177. VT.— State v. Murphy, 55 Vt. 547. W. VA.— State v. Miller, 26 W. Va. 110. FED.— United States v. Claflin, 13 Blatchf. C. C. 178, Fed. Cas. No. 14798. Allegations, recitals, or aver- ments showing grand jury acted in finding indictment upon a stat- ute which has been repealed, such allegations, recitals, or averments, if erroneous, can not be rejected as surplusage, because It was the ground of this action. — United States V. Goodwin, 20 Fed. 237. Greater particularity than re- quired in indictment, it must be proved as laid; nothing connected with the offense is regarded as sur- plusage. — United States v. Brown, 3 McL.. C. C. 233, Fed. Cas. No. 14666. , Matters of law need not be set forth in an indictment. — United States V. Rhodes, 1 Abb. U. S. 28, 7 Am. L. Reg. 233, Fed. Cas. No. 16151. Statute need not be recited in indictment; but if indictment pro- fesses to recite the statute upon which it is founded, and materially varies therefrom, the recital can not be rejected as surplusage, but the variance is fatal. — Butler v. State, 3 McC. (S. C.) 383. 2R. V. Radley, 1 Den. C. C. 450; Com. V. Bennett, 118 Mass. 452. Infra, § 238. sPye's case, East P. C. 983; United States v. Howard, 3 Sumn. C. C. 19, Fed. Cas. No. 15204. 4 R. V. Jones, 2 Barn. & Ad. 611, 22 Eng. C. L. 256. BR. V. Hodgkiss, L. R. 1 C. C. 212. 246 CRIMINAL PROCEDURE. § 200 Unnecessary aggravation f Falsity of the charge, in cases where the indictment is for conspiracy to charge with an indictable offense, and when the question of falsity is not at issue f Unnecessary terms of art, such as "feloniously";' Redundant divisible offenses, one of which can be dis- charged, leaving the other sufficient ;* Specifications of ways of resisting an officer or of the authority under which he acted ;^'* AU but a particular article in larceny, when this is relied on to the exclusion of others stated ;" Unnecessary predicates if divisible ;^2 Superfluous assignments in perjury and false pre- tenses;^* Cumulative intents ;^* Cumulative descriptions of a person ^^ or a thing ;^' Cumulative averments of instruments." Surplusage is not ground for demurrer." But even though an averment is more particular than it need be, yet if it can not be stricken out without removing an essential part of the case, it can not be regarded as sur- plusage; and if there be a variance in proving it, the prosecution fails.^* eLacefield v. State, 34 Ark. 275, Burke v. State, 5 Tex. App. 74; 36 Am. Rep. 8 ; Com. v. Randall, State v. Newson, 13 W. Va. 859. 70 Mass. (4 Gray) 36; Scott v. is Whart. Crim. Ev., § 131. Com., 6 Serg. & R. (Pa.) 224. ^^ ^ ^ ^^^^^^^ ^ ^^^ ^ j^ 33^^ See, Infra, § 202. 41 Eng. C. L. 185. 7R. V. Holllngberry, 4 B. & C. ib Supra, §5138 et seq. McCar- 329, 6 Dow. & Ry. 345. ngy y People, 83 N. Y. 408. 8 Infra, §310. is Ibid. » Whart. Crim. Bv., §144. Seei it Kerr's Whart. Crlm. Law, Smith V. State, 85 Ind. 183; Du;j- § 652; Trout v. State, 111 Ind. 499, ham V. State, 9 Tex. App. 330. 12 N. E. 1005; State v. Adama, 78 lOGunyon v. State, 68 Ind. 70; Me. 486, 7 Atl. 267. State V. Goss, 69 Me. 22; State v. See, also, Infra, § 261. Copp, 15 N. H. 212. 18 Steph. PI. 376. 11 Whart. Crim. Ev., §135, 145. 1 9 ME.— State v. Noble, 15 Me. 12 Whart. Crlm. Ev., §134; Fer- 476. MASS.— Com. v. Wellington, rell V. State, 70 Tenn. (2 Lea) 25; 89 Mass. (7 Allen) 299. FED.— §§201,202 INDICTMENT VIDELICET, WHAT IT IS. 247 § 201. Videlicet is the poiNTiiirQ out of an averment OF PROBABLE SPECIFICATION. A videlicet, in reference to statement of time, has been already considered.^ The object of the videlicet, which may be extended to allega- tions of quantity, of distance, of localization, of differ- entiation, is to annex a specification, by way of definition, to a clause immediately preceding, and thus to separate, by a kind of bracketing, this specification from other clauses.* This "is a precaution which is totally useless when the statement placed after the videlicet is material, but which, in other cases, prevents the danger of a vari- ance by separating the description from the material averment, so that the former, if not proved, may be rejected, without mutilating the sentence which contains the latter."* But a videlicet can not be admitted to contradict, increase, or diminish the allegations with which it is connected.* § 202. Assault may be sustained without specifica- tion OF object. Where an assault is duly averred, then the intent with which this assault was committed is matter of surplusage, and need not be proved in order to secure a conviction of the assault.^ Even an assault with intent need not specify the facts necessary to constitute an offense whose actual and complete shape was not at the United States v. Foye, 1 Curt. C. C. See, supra, § 165. 364, Fed. Cas. No. 15157. BNG.— 3 Heard's Pl. 141, citing 1 Smith's R. V. Deeley, 1 Mood. C. C. 303. l^ead. Cas. (16th Eng. ed.) 592, Seo Whart. Grim. Ev., §| 109, * Gould's Pleading, p. 68. State 146. V. Brown, 51 Conn. 1. 1 Supra, § 164. i R- ▼• Higglns, 2 East 5; though 2 1 Sterk. C. P. 251-2. MASS.- ««« »■ ^- ^^''^^' ^ ^«°- °- ^- ^'^^' Com. V. Hart, 76 Mass. (10 Gray) Terr's Whart. Crim. Law, § 834. 468. MINN.— State v. Heck, 23 Even the word "assault" Is not Minn. 551. N. Y.— People v. Jack- necessary, hut may be supplied by son, 3 Den. 101, 45 Am. Dec. 449; terms by which it is implied.— Crlchton v. People, 6 Park. Crim. Murdock v. State, 65 Ala. 520; Rep. 363. ENG.— Ryalls v. R., 11 Cole v. State, 11 Tex. App. 67. Ad. & El. N. S. (11 Q. B.) 781, 797, Compare: Hays v. State, 77 Ind. 63 Eng. C. U 78, 795. 450. 248 CRIMINAL PEOCEDUBE, 202 time matured.^ Thus, an indictment for an assault with an intent to steal from the pocket, without stating the goods or money intended to be stolen, is good f nor is it necessary to aver that the prosecutor had anything in his pocket to be stolen.* In an indictment, also, for an assault with intent to murder, it is not necessary at common law to state the means made use of by the assail- ant, to effectuate the murderous intent,® though when required by statute and when the instrument is known to the pleader, it should be averred.^ So in an indictment for breaking and entering a dwelling-house, with intent to commit a rape, it need not be alleged that the defend- ant "then and there" intended to commit the rape, nor need the offense of rape be fully and technically set forth.''' 2 See Kerr's Whart. Crim. Law, § 843. CAL.— People v. Girr, 53 Cal. 629. TENN.— State v. Mont- gomery, 66 Tenn. (7 Baxt.) 100. TEX.— Morris v. State, 13 Tex. App. 65. WIS.— Cross v. State, 55 Wis. 262, 12 N. W. 425. 3 Com. V. Rogers, 5 Serg. & R. (Pa.) 463; Kerr's Whart. Crim. Law, § 834. 4 Com. V. McDonald, 59 Mass. (5 Cush.) 365; Com. v. Doherty, 64 Mass. (10 Cush.) 52; Durand v. People, 47 Mich. 332, 11 N. W. 184. 5 Kerr's Whart. Crim. Law, § 843 and cases cited. ALA. — Trex- ler V. State, 19 Ala. 21. IND.— State Y. Hubbs, 58 Ind. 415. KAN.— State v. Miller, 25 Kan. 699. LA. — State v. Jackson, 37 La. Ann. 467. MD.— State v. Dent, 3 Gill. & J. 8. MICH. — Rice v. People, 15 Mich. 9. MO.— State v. Jordan, 19 Mo. 213; State v. Chandler, 24 Mo. 371, 69 Am. De& 432; State v. Steinemann, 162 Mo. 188, 62 S. W. 694; State v. Temple, 194 Mo. 237, 5 Ann. Cas. 954, 92 S, W. 869; State V. Payne, 194 Mo. 442, 92 S. W. 461. TEX.— State v. John- son, 11 Tex. 22. VT.— State v. Daley, 41 Vt. 564. WIS.— Kilkelly V. State, 43 Wis. 604. FED.— United States v. Herbert, 5 Cr. C. C. 87, Fed. Cas. No. 15354. The question depends, it may be observed, on the statute consti- tuting the offense. — See State v. Munch, 22 Minn. 67. In North Carolina it has been held that specification of weapon is necessary. — State v. Moore, 82 N. C. 659; State v. Hooper, 82 N. C. 663; State v. Benthall, 82 N. C. 664. But in State v. Gainus, 86 N. C. 632, it was held that in an indict- ment for an assault with intent to murder the weapon need not be averred. 6 See State v. Miller, 25 Kan. 699; Porter v. State, 57 Miss. 300. Required by statute in some states. 7 Com. V. Doherty, 64 Mass. (10 Cush.) 52. Indictment for an assault with intent to commit a rape need not 202 INDICTMENT — ASSAULT, SPECIFICATION. 249 The means of effecting the criminal intent, or the circum- stances evincive of the design with which the act was done, are considered to be matters of evidence to the jury- to demonstrate the intent, and not necessary to be incor- porated in an indictment.* It is otherwise, however, when the charge is a statutory aggravated assault, in which case the aggravation must be specially averred.® When, however, an attempt is averred, it is necessary that some act constituting such attempt (e. g., an assault) should be laid,^" as the attempt is not per se indictable, and needs extraneous facts to make it the subject of an indictment, while it is otherwise with an assault.^^ It is not necessary, however, to aver that which the grand jury could not have known, e. g., what were the specific allege that the intent was to "car- nally and unlawfully know." — Singer v. People, 13 Hun (N. Y.) 418 ; affirmed 75 N. Y. 608. 8 MD.— State v. Dent, 3 Gill. & J. 8. N. Y. — Mackesey v. People, 6 Park. Cr. Rep. 114. FED.— United States V. Gooding, 25 U. S. (12 Wheat.) 473, 6 L. Ed. 693; United States V. Simmons, 96 U. S. 360, 24 L. Ed. 819; United States v. Ul- rici, 3 Dill. C. C. 535, Fed. Cas. No. 16594. 9 State V. Beadon, 17 S. C. 55; Griffin v. State, 12 Tex. App. 423. 10 CONN.— State v. Wilson, 30 Conn. 503. LA.— State v. Womack, 31 La. Ann. 635. PA. — Randolph v. Com., 6 Serg. & R. 398. VA.— Clark's Case, 6 Gratt. 675. As tending to a laxer view, see People V. Bush, 4 Hill (N. Y.) 133; United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819. As to precision necessary In indictments for attempts, etc., see Kerr's Whart. Crim. Law, §§212 et seq. In United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819, it is held that where a defendant is not charged with using a still, boiler, or other vessel himself, but with causing and procuring some other person to use them, the name of such person must be given in the indictment. Indictment for distilling vinegar lliegally, must set out that the apparatus was used for that pur- pose, and in the premises de- scribed, and the vinegar manufac- tured at the time the apparatus described was being used. The averment that defendant caused and procured the apparatus to be used for distilling implies with sufficient certainty that it was so used; it is not essential that its actual use shall be set out. See United States v. Claflin, 13 Blatchf. C. C. 178, Fed. Cas. No. 14798. 11 Thompson v. People, 96 111. 158; United States v. Wentworth, 11 Fed. 52. 250 CRIMINAL PROCEDX.TRE. § 203 goods the party attempted to steal,*^ or, it may be, par- ticular poison the defendant intended to employ.^^ § 203. Attempt to commit an impossible ceime. Where the offense consists in the criminal intent, an indictment will lie for such attempt, and it need not be alleged that there was a possibility that the attempted crime could have been committed; in other words, there may be an indictment for an attempt to commit an im- possible crime, where the intent with which the attempt is made is criminal. In such case the indictment must charge and the evidence show that the intent was in fact criminal.^ Thus, there may be a criminal attempt to pick the pocket of another, notwithstanding the fact that there wS,s nothing in the pocket at the time,^ and for that rea- son the attempted crime was impossible of accomplish- ment;' or, again, there may be a criminal attempt to produce an abortion, although the woman- is not at the time pregnant with child,* or the medicine administered 12 state V. Utley, 82 N. C. 556. might pass around in a crowd, in 13 Watson V. State, 9 Tex. App. full view of a policeman, and even 237. in the room of a police station, and Term feloniously, in such cases, thrust his hands into the pockets must ordinarily be used when the of those present with Intent to object is felonious. Infra, § 309. steal, and yet not be liable to 1 Chelsey v. State, 121 Ga. 340, arrest and punishment until the 49 S. B. 258. policeman had ascertained that See, also, infra, § 209. there was in fact money or val- 2 In England it was formerly uables in some one of the pockets held that where a man put his upon which the thief had experi- hand into another's pocket, and mented." there was nothing in the pocket 3 Com. v. McDonald, 59 Mass. (5 to steal, he could not be convicted Gush.) 365. The court in this case of an attempt to steal (Reg. v. Col- say: "A man may attempt to steal lins, 1 Leigh & C. 471) ; but this by breaking open a trunk, and be doctrine was overruled by Lord disappointed at not finding the Coleridge in Reg. v. Brown, 24 object of pursuit, and so. not steal Q. B. Div. 357. in fact. Still he nevertheless re- in America this doctrine has mains chargeable with an act done never found favor. Butler, J., says towards the commission of the in State v. Wilson, 30 Conn. 500, offense." that "it would be a startling propo- i Reg. v. Whitchurch, 24 L. R. sition that a known pickpocket Q. B. Div. 420, 8 Am. Cr. Rep. 1. §§ 204-206 INDICTMENT — ^ALTERNATIVE STATEMENTS. 251 harmless and incapable of effecting the purpose at- tempted.^ And where the occupant of a building observed a policeman peeping through a hole he had made in the roof, for the purpose of determining from observation whether the occupant was conducting therein a gam- bling or lottery game, procured a pistol and fired at the spot, with intent to kill the officer, he is guilty of an assault with intent to commit murder, although the officer was not at the spot when the shot was fired.® § 204, Act or one confederate may be aveeeed as act OF THE OTHER. As wc shall have occasion to see at length when the proof of variance is discussed,^ the act of an agent may be averred as the act of the principal, and that of one confederate as the act of the other. ^ § 205. Dbsceiptivb aveement must be peoved. When an averment is descriptive, it may so far enter into the designation of the offense that it must be specifically proved.^ § 206. Alteenative statements aee inadmissible. The certainty required in an indictment precludes the adop- tion of an alternative statement.^ Thus, if the indict- 5 State V. Fitzgerald, 49 Iowa a present ability as well as an in- 260, 31 Am. Rep. 148, 3 Am. Cr. tent to do the injury. — State v. Rep. 1. Small, 8 Ind. 524, 65 Am. Dec. 772; Rothrock, Chief Justice, says: State v. Napper, 6 Nev. 15; State "A party who, with the necessary v. Godfrey, 17 Ore. 300, 11 Am. St. criminal Intent, uses any sub- Rep. 830, 20 Pac. 625. stance to produce a miscarriage, i Whart. Grim. Ev., §102; State surely can not be held innocent v. Basserman, 54 Conn. 89, 6 Atl. because he mistakenly adminis- 185. tered a drug or substance which 2 Supra, § 182. did not produce the result in- i Supra, § 200 ; Whart. Grim. Ev., tended. It is the intent and not §§ 109, 146. IND.— Dennis v. State, the 'substance' used, that deter- 91 Ind. 291. MASS. — Com. v. Mo- mines the criminality." riarty, 135 Mass. 540. N. H. — State 6 People V. Lee Kong, 95 Cal. v. Sherburn, 59 N. H. 99. TEX.— 666, 29 Am. St. Rep. 165, 17 L. R. A. Gray v. State, 11 Tex. App. 411. C26, 30 Pac. 800. i ALA. — Danner v. State, 54 Ala. In assault to kill there must be 125, 25 Am. Rep. 662 (indictment 252 CRIMINAL PROCEDUEE. §206 ment cliarge the defendant with one or other of two offenses, in the disjunctive, as that he murdered or caused to be murdered, forged or caused to be forged,^ burned or caused to be burned,* sold spirituous or intoxi- cating liquors;* levavit, vel levari causavit,^ conveyed or caused to be conveyed, etc., it is bad for uncertainty;® and the same, if it charge him in two different characters, in the disjunctive as quod A. existens servus sive de- putatus, took, etc.;'' and so where the defendant is terfeit bills or promissory notes") ; Read V. People, 86 N. T. 381 ("art* charging burglary of place "in which goods, merchandise, or other valuable thing" etc.). ARK. — Thompson v. State, 37 Ark. 408. CALi.— People v. Hood, 6 Cal. 236 ("burn or cause to be burned"). IND. — State V. Stephenson, 83 Ind. 246. N. H. — State v. Naramore, 58 N. H. 273 (fraudulently concealing property to prevent "attachment or seizure" etc. "upon mesne proc- ess or execution"). TEX. — Tomp- kins V. State, 4 Tex. App. 161; Hammel v. State, 14 Tex. App. 326; Parker v. State, 20 S. W. 707 (carrying arms "on or about the person"). W. VA. — State v. Charl- ton, 11 W. Va. 332, 27 Am. Rep. 603 (charging sale of intoxicating liq- uors, without a license, "to be drunk in, upon or about the build- ing or premises where sold"). BNG. — Ex parte Pain, 5 Barn. & C. 251, 11 Eng. C. L. 450, 29 Rev. Rep. 231, 15 Eng. Rul. Cas. 208, sub nom. Rex v. Pain, 7 Dowl. & Ry. 678; Rex v. Sadler, 2 Chit. 519, 18 Eng. C. L. 766 ("did kill, take and destroy, or attempt to kill, take and destroy") ; Rex v. North, 6 Dowl. & Ry. 143, 28 Rev. Rep. 538 (charging selling "beer or ale"). "Or" used in sense of "to wit" held to be good pleading. See Brown v. Com., 8 Mass. 59 ("coun- or mystery") ; State v. Gilbert, 13 Vt. 647 ("a mare of a bay or brown / color"). , Disjunctive statements in stat- utes, for this reason, are to be given conjunctively so. Infra, §278. 2 2 Hawk., ch. 35, § 58. CAL.— People V. Tomlinson, 35 Cal. 503. KY.— Com. v. Perrigo, 60 Ky. (3 Mete.) 5. ENG.— R. v. Stocker, 1 Salk. 342, 371, 91 Eng. Repr. 300, 323. As to averment of sucli disjunc- tive allegations, see, infra, § 278. That such averments are divis- ible, see, infra, §§ 278, 300. 3 People V. Hood, 6 Cal. 236. 4 Com. v. Grey, 68 Mass. (2 Gray) 501, 61 Am. Dec. 476. But see Cunningham v. State, 5 W. Va. 508. 5 R. V. Stoughton, 2 Str. 900, 93 Eng. Repr. 927. 6 ALA.— Noble v. State, 59 Ala. 73. N. H.— State v. Gary, 36 N. H. 359; State v. Naramore, 58 N. H. 273. N. J. — State v. Drake, 30 N. J. L. (1 Vr.) 422. ENG.— R. v. Flint, Hardw. 370; R. v. Morley, 1 Y. & J. 221. T Smith v. Mall, 2 Roll. Rep. 263. § 206 INDICTMENT — ALTERNATIVE STATEMENTS. 253 charged with having broken into a ' ' barn or stable, ' ' * with having sold ' ' spirituous or intoxicating liquors, ' ' or with having administered a poison or drug.* So, generally, an indictment which may apply to either of two different offenses, and does not specify which, is bad.^** On the other hand, alternatives have been permitted when they qualify an unessential description of the particular of- fense, and do not touch the offense itself.^^ Thus, in Vermont, it was held not to be a fatal objection, that an indictment charged the defendant with the larceny of a horse, described as being either of a "brown or bay color. " ^^ In Pennsylvania, indictments averring certain trees cut down not to be the property of the defendants "or either of them,"^* and laying a nuisance to be in the "highway or road," etc., have been held good, the alter- native being rejected as surplusage.^* In several prece- dents in Massachusetts, the expression "as an innholder or victualler" formally occurs.^^ And in the United States Circuit Court for Michigan, it has been held that "cutting or causing to be cut" is not fatal.^® The prin- ciple seems to be, that " or " is only fatal when it renders the statement of the offense uncertain, and not so when one term is used only as explaining or illustrating the sHorton v. State, 60 Ala, 72; 439. See McGregor v. State, 16 see Pickett v. State, 60 Ala. 77. Ind. 9. 9 GA. — Wingard v. State, 13 Ga. 14 ALA.. — ^Kaisler v. State, 55 396. N. J.— State v. Drake, 30 Ala. 64. CONN.— State v. Corri- N. J. L. (1 Vr.) 422. PA.— Com. gan, 24 Conn. 286. MO.— State v. V. France, 2 Brewst. 568. TBNN. — Ellis, 4 Mo. 474. PA.— Resp. v. Whiteside v. State, 44 Tenn. (4 Arnold, 3 Yeates 417. Cold.) 183; State v. Green, 50 is Com. v. Churcliill, 43 Mass. Tenn. (3 Heisk.) 131. C2 Met.) 119, 125; Com. v. Thayer, 10 Johnson v. State, 32 Ala. 583; 46 Mass. (5 Met.) 246. Horton v. State, 60 Ala. 73; State "Did cause to be published, etc., V. Harper, 64 N. C. 129; R. v. Mar- in a certain paper or publication," shall, 1 Mood. C. C. 158. seems to have escaped the vigi- 11 Barnett v. State, 54 Ala. 579; lance of counsel who were con- State V. Newsom, 13 W. Va. 859. cerned in the great case of People 12 State V. Gilbert, 13 Vt. 647. v. Crosswell, 3 John. Cas. (N. Y.) Infra, § 278. 338. 13 Moyer v. Com., 7 Barr (Pa.) 16 United States v. Potter, 6 254 CRIMINAL PROCEDURE. § 207 otlier.^^ "Or," also, may be introduced in enumerating the negative averments required to exclude the excep- tions of a statute.'* And ordinarily thQ objections, if good, can not be taken after verdict.'* § 207. Disjunctive offenses in statute may be con- junctively STATED. Where a statute disjunctively enu- merates offenses, or the intent necessary to constitute such offenses, the indictment can not charge them dis- junctively.' Thus, where a statute against unlawful shooting affixes a penalty when the act is done with intent to maim, disfigure, disable, or kill (in the disjunctive), the disjunctive statement of intent is bad.^ Under statutes also, describing the several phases of forgery disjunc- tively, it is held fatal to say that the defendant forged, or caused to be forged, an instrument,^ or that he carried and conveyed, or caused to be carried and conveyed, two persons having the smallpox, so as to burden a certain parish.* It is therefore error to state the successive gradations of statutory offenses disjunctively; and to state them conjunctively, when they are not repugnant, is allowable.® McL. C. 0. 186, Fed. Gas. No. 16078. State, 1 McM. 236, 36 Am. Dec. 257. See, also. State v. Richards, 23 La. TBNN.— Whiteside v. State, 44 Ann. 1294; State v. Ellis, 4 Mo. Tenn. (4 Cold.) 183. FED.— United 474. States v. Armstrong, 5 Phila. Rep. See, infra, § 278. 273, Fed. Gas. No. 14468. 17 Brown v. Com., 8 Mass. 59; See, infra, §278. Com. V. Grey, 67 Mass. (2 Gray) 2 Angel v. Com., 2 Va. Gas. 231. 501; State v. Ellis, 4 Mo. 474; Peo- 3 1 Burr. 399; 1 Salk. 342, 371; pie V. Gilkinson, 4 Park. Gr. Rep. 8 Mod. 32; 5 Mod. 137. (N. Y.) 26; infra, §278. 4 1 Sess. Gases 307. 18 Ibid. KY.— Com. V. Hadscratt, 5 Infra, §300. GAL. — People v. 91 Ky. (6 Bush) 91. MO.— State v. Ah Woo, 28 Cal. 205. GA.— Win- Sundley, 15 Mo. 513. N. H.— State gard v. State, 13 Ga. 396. IND.— V. Burns, 20 N. H. 550. N. Y.— Peo- Keefer v. State, 4 Ind. 246 ; State pie V. Gilkinson, 4 Park. Gr. Rep. v. Stout, 112 Ind. 245, 13 N. E. 715. 25. MASS.— Com. v. Grey, 68 Mass. 19 Johnson v. State, 50 Ala. 456. (2 Gray) 501, 61 Am. Dec. 476. 1 N. J.— State V. Price, 11 N. J. L. MO.— State v. McGollum, 44 Mo. (6 Halst.) 203. R. I.— State v. Col- 343. N. J.— State v. Price, 11 wells, 3 R. I. 284. S. C— Jones v. N. J. L.. (6 Halst.) 203. S. G.— §§ 208, 209 indictment — ^averring intent. 255 § 208. Otherwise as to distinct and stjbstantivb OFFENSES. When a statute in one clause makes several distinct and substantive offenses indictable, neither of which is included in the other, it has been held better to specify the actual offense committed.^ Thus, where the language of the statute was, "any person who shall pre- sume to keep a tippling-house, or sell rum, brandy, whisky, tafia, or other spirituous liquors, etc., shall be liable," etc.; and the indictment charged the defendant with selling the particular liquors in the aggregate with- out a license, it was held that the indictment was deficient in not defining the offense with sufficient precision.^ Whether different designations of an object (e. g., "war- rant," "order," "request") can be coupled will be here- after noticed.* § 209. Intent, when necessary, must be averred. The cases in reference to intent may be grouped under the following heads : 1. Where the intent is to he proved in order to indicate the character of the act, as when there is an attempt or assault to commit an offense, in which cases the intent must be averred ;^ and must be attached to all the material allegations.^ And so as to the intent in forgery.* Jones V. state, 1 McM. 236, 36 Am. How.) 250; R. v. Middlehurst, X Dec. 257; State v. Meyer, 1 Spears Burr. 400. 305. VA.— Angel v. Com., 2 Va. 3 Infra, §§ 242, 300. Cas. 231; Rasnick v. Com., 2 Va. i CAL. — People v. Congleton, 44 Cas. 356. FED.— United States v. Cal. 92. MASS.— Com. v. Hersey, Hull, 4 McCr. C. C. 273, 14 Fed. 84 Mass. (2 Allen) 173. MINN.— 324; United States v. Armstrong, State v. Garvey, 11 Minn. 154. 5 Phila. Rep. 273, Fed. Cas. No. TEX.— State v. Davis, 26 Tex. 201 ; 14468. ENG.— R. v. North, 6 Dow. Bartlett v. State, 21 Tex. App. 500, 6 Ry. 143, 16 Eng. C. L. 258. 2 S. W. 829. FED.— United States For other cases, see, infra, § 300. v. Wentworth, 11 Fed. 52. 1 But see Com. v. Ballou, 124 2 Com. v. Boynton, 66 Mass. (12 Mass. 26; State v. Locklear, 44 Cush.) 500; Com. v. Dean, 110 N. C. (Busb.) 205. Mass. 64; R. v. Rushworth, R. & R. See, supra, § 193; infra, § 278. 317. 2 State V. Raiford, 7 Port. (Ala.) 3 See Kerr's Wliart. Crim. Law, 101; Miller v. State, 6 Miss. (5 §951. 256 CRIMINAL PROCEDURE. § 210 2. Where the intent is to be prima facie inferred from the facts stated, in which case intent, unless part of the statutory definition, need not be specifically averred.* Thus, while intent must be averred in an indictment for an attempt to steal, it need not be averred in an indict- ment for larceny.® 3. Where intent is part of the statutory definition of the offense it must be averred, though it is otherwise in cases where it is not part of such statutory definition, and when the offense is punishable, no matter what was the intent.® 4. In negligent offenses, to allege intent is a fatal error, unless the allegation be so stated as to be cap&jle of dis- charge as surplusage.'^ § 210. And so of guilty knowledge. Where guilty knowledge is not a necessary ingredient of the offense, or, where the statement of the act itself neces- sarily includes a knowledge of the illegality of the act, no averment of knowledge is necessary.^ It is otherwise Though see State v. Lurch, 12 fraud any particular person, is not Ore. 99, 6 Pac. 408. in conflict with. § 10 of the Bill of 4 See State v. Hurds, 19 Neb. Rights, which requires the accused, 316, 27 N. W. 139. on demand, to be furnished with B Ibid. "the nature and cause of the accu- e Infra, §269; State v. McCarter, satlon against him." — Turpln v. 98 N. C. 637, 4 S. E. 553. State, 19 Ohio St. 540, 1869. As to indictments for cheats and As to similar provision in Penn- false pretenses, see Kerr's Whart. sylvania statute, see McClure v. Grim. Law, §1493; Stringer v. Com., 86 Pa. St. 353 ; Kerr's Whart. State, 13 Tex. App. 520. Grim. Law, § 948. 7 See Kerr's Whart. Grim. Law, i 2 East P. C. 51. GONN.— §§ 162 et seq. Barnes v. State, 19 Gonn. 397. As to surplusage, see, supra, GA. — Phillips v. State, 17 Ga. 459. § 200. IND. — State v. Freeman, 6 Blackf. The Ohio statute which declares 248. IOWA — State v. Burgson, 53 that it shall be sufficient in any Iowa 318, 5 N. W. 167. KY.— Gom. indictment, where it is necessary v. Stout, 46 Ky. (7 B. Mon.) 247. to allege an intent to defraud, to ME. — ^State v. Goodenow, 65 Me. allege that the party accused did 30. MASS. — Com. v. Blwell, 43 the act with intent to defraud, Mass. (2 Met.) 190, 35 Am. Dec. without alleging an intent to de- 398; Com. v. Marsh, 48 Mass. §210 INDICTMENT ^AVEKRING GUILTY KNOWLEDGE. 257 where guilty knowledge is not so implied and is a sub- (7 Met.) 472; Com. v. Boynton, 66 Mass. (12 Cush.) 499; Com. v. Boynton, 84 Mass. (2 Allen) 160; Com. V. Farren, 91 Mass. (9 Allen) 489; Com. v. Nichols, 92 Mass. (10 Allen) 199; Com. v. White, 93 Mass. (11 Allen) 264, 87 Am. Dec. 711; Com. v. Raymond, 97 Mass. 567; Com. v. Smith, 103 Mass. 444; Com. V. Wentworth, 118 Mass. 441; Com. v. Smith, 166 Mass. 370, 44 N. B. 503. NEV.— State v. Trol- son, 21 Nev. 419, 32 Pac. 930. N. H.— State V. White, 64 N. H. 42, 10 Am. St. Rep. 419, 13 Atl. 585; State V. 'Cornish, 66 N. H. 329, 11 L. R. A. 191, 21 Atl. 180; State V. Ryan, 70 N. H. 196, 85 Am. St. Rep. 629, 46 Atl. 49. OHIO— Turner v. State, 1 Ohio St. 422. S. C— State V. Haines, 32 S. C. 170. VT.— State v. Bacon, 7 Vt. 219. FED.— United States v. Malone, 20 Blatchf. C. C. 137, 9 Fed. 897. ENG. — Lingham v. Riggs, 1 Bos. & P. 82, 86, 126 Eng. Repr. 790, 793; Reg. v. Gihhons, 12 Cox C. C. 237; Rex v. Philipps, 6 East 474; Rex V. Knight, 1 Hale P. C. 561; Reg. V. Prince, L. R. 1 C. C. 154; .R€g. V. Hicklin, L. R. 3 Q. B. 360. See, infra, § 321. Statutory offenses may he al- leged In the words of the statute, and a statement of the acts con- stituting the offense, in ordinary and concise language, and in such a manner as to show that the statutory offense has been com- mitted by the defendant, and to Inform him of what is intended to be charged, is sufficient without an averment of guilty knowledge. See: ALA. — Lowenthal T. State, 32 Ala. 589; Huffman t. State, 89 Ala. 33, 8 So. 28. ARK.— Wood t. I. Crim. Proc. — 17 State, 47 Ark. 492, 1 S. W. 709. CAL. — People V. Gray, 66 Cal. 271, 5 Pac. 240; People v. Tomlinson, 66 Cal. 345, 5 Pac. 509. LA.— State V. Wolff, 34 La. Ann. 1153. MASS. — Com. V. Raymond, 97 Mass. 569; Com. v. Bennett, 118 Mass. 451. NEV. — State v. Logan, 1 Nev. 510; State v. Trolson, 21 Nev. 419, 32 Pac. 930. N. Y.— Peo- ple V. Hennessey, 15 Wend. l50. TEX.— Golden v. State, 22 Tex. App. 2, 2 S. W. 531; Crump v. State, 23 Tex. App. 616, 5 S. W. 182. FED. — United States v. Good- ing, 25 U. S. (12 Wheat.) 460, 472, 6 L. Ed. 693, 697. See, also, Kerr's Whart. Crim. Law, § 1309. Statute prohibiting an act, in- dictment need not allege knowl- edge, intent, or purpose; it is the defendant's duty to know the facts and the law in such a case, and he acts at his peril. See: MASS. — Com. V. Uhrig, 138 Mass. 492; Com. V. Savery, 145 Mass. 212, 13 N. E. 611. NEV.--State v. Zich- feld, 23 Nev. 304, 62 Am. St. Rep. 800, 34 L. R. A. 784, 46 Pac. 802. N. H.— State v. Campbell, 64 N. H. 402, 10 Am. St. Rep. 419, 13 Atl. 585; State v. Cornish, 66 N. H. 329, 11 L. R. A. 191, 21 Atl. 180; State V. Ryan, 70 N. H. 196, 85,' Am. St. Rep. 629, 46 Atl. 49. R. I.— . State V. Smith, 10 R. I. 258; State V. Hughes, 16 R. I. 403, 16 Atl. 911. — Embezziement being charged, indictment need not allege act of appropriating the property or money was wilful, or felonious, or with intent to steal. — State v. Trol- son, 21 Nev. 419, 32 Pac. 930. — Oieomargarine furnished guests by hotelkeeper, indictment 258 CEIMINAIi PROCEDURE. §210 stantive ingredient of the offense.* Thus, in an indict- ment for selling an obscene book, a scienter is necessary,^ and so in indictments for selling unwholesome water;* for illegal voting;^ for subornation of perjury;* for pass- ing counterfeit money;'' and for assaulting officers;^ though it has not been held necessary in an indictment for adultery.® Under a statute, where the guilty knowledge is part of the statutory definition of the offense, it must be averred.*" But in the large and important class of cases need not allege or proof show 110 Mass. 64. MISS. — Morman v. guilty intent. — State v. Ryan, 70 N. H. 196, 85 Am. St. Rep. 629, 46 Atl. 49. —Presence where gaming instru- ments found, indictment need not charge that defendant had knowl- edge either of their presence or of the character of the place. — Com. v. Smith, 166 Mass. 370, 44 N. B. 503. Guilty lid. ance is fatal.— R. v. Goldstein, R, 8 Com. V. Woods, 76 Mass. (10 & ^ 473^ 7 Mgore 1, 10 Price 88; Gray) 480. and see K v. H , 20 Wis. 1 R. V. Goldstein, R. & R. 473, 239, 91 Am. Dec. 397. 7 Moore 1, 10 Price 88; Kerr's ^^ ^ j^^^^_ ^ ^^^ ^ ^^ ^35^ ^^ Whart. Crim. Law, § 935 ^^^ ^ L. 635; R. v. Barton, 1 2 Ibid. See, Wormouth V. era- Moody 0. C. 141. mer, 3 Wend. (N. Y.) 394; R. v. Szudurskie. 1 Moody 429; R. v. * ^- ^- Wilcox, R. & R. 0. C. 50. , Warshaner, 1 Mood. C. C. 466. B Whart. Crim. Ev.. §114. As to California, under special 8 Ibid., §116. statute, allegation of instrument in f Ibid., § 117. ' foreign language, giving tenor and 8 Ibid., § 118. §227 INDICTMENT — INNUENDO, OFFICE OF. 275 the quoted matter to explain an obscure term. It can explain only where something already appears upon the record to ground the explanation; it can not, of itself, change, add to, or enlarge the sense of expressions be- yond their usual acceptation and meaning. It can inter- pret, but can not add or extend meaning^ unless by ref- extend the meaning of parts too 1 See 3 Salk. 512, Cowp. 684 ; CONN. — Mix V. Woodward, 12 Conn. 262. MASS. — Goodrich v. Cooper, 97 Mass. 1, 93 Am. Dec. 49; Adams v. Stone, 131 Mass. 433. MISS. — Bradley v. State, 1 Miss. (Walk.) 156. N. Y.— Van Vechten V. Hopkins, 5 John. 211, 4 Am. Dec. 339. N. C— State v. Neese, 4 N. C. (Term) 270. PA. — Stitzell v. Reyn- olds, 59 Pa. 488. S. C. — State v. Henderson, 1 Rich. L. 179. VA.— Hansbrough v. Stinnett, 25 (Jratt. 495. FED.— Beardsley v. TaHan, 1 Blatchf. C. C. 588, Fed. Cas. No. 1188. ENG. — Le Fanu v. Malcom- son, 1 H. of L. Cas. 637; Solomon V. Lawson, 8 Ad. & El. N. S. (8 Q. B.) 825, 55 Eng. C. L. 824. Explanation needed to show falsity may be by innuendo. — United States v. Britton, 107 U. S. 655, 27 L. Ed. 520, 2 Sup. Ct. Rep. 512. It was held In Pennsylvania, in 1870, that where no new essential fact is requisite to the frame of an indictment for libel, which re- quires to be found by the grand jury as the ground of a collo- quium, and where the only object of an innuendo is to give point to the meaning of the language, it is not proper to quash the indict- ment on the ground that the innu- endo may be supposed to carry the meaning of the language be- yond the customary meaning of the word. If some of the innu- endoes In an indictment for libel far, but there be others sufficient to give point to it, the jury may convict under the latter alone. — Com. V. Keenan, 67 Pa. St. 203. See, further, note to § 213. "He burnt my barn," in an action on the case against a man for saying of another "He has burnt my barn," the plaintiff can- not, by way of innuendo, say, "meaning my barn full of corn" (Barham v. Nethersal, 4 Co. 20a) because this is not an explanation derived from anything which pre- ceded it on the record, but is the statement of an extrinsic fact not previously stated. But if in the introductory part of the declara- tion it had been averred that the defendant had a barn full of corn, and that, in a discourse about that barn, he had spoken the above words of the plaintiff, an innu- endo of its being the bam full of corn would have been good; for, by coupling the innuendo with the Introductory averment, it would have made it complete. — ^Arch- bold's C. P. 494; 4 R. Ab. 83, pi. 7; 85, pi. 7; 2 Ro. Rep. 244; Cro. Jac. 126; 1 Sid. 52; 2 Str. 934; 1 Saund. 242, n. 3; Alexander v. Angle, 1 Car. & J. 143, 7 Bing. 119, 20 Eng. C. L. 61; Goldstein v. Foss, 9 Dow. & Ry. 197, 6 Bam. & C. 154, 13 Eng. C. L. 81; Clement v. Fisher, 1 Mann. & Ry. 281; R. v. Tutchin, 5 St. Tr. 532. 276 CRIMINAL PEOCEDUEB. § 227 erence to matter of inducement.^ It may serve as an explanation, but not as a substitute." Extrinsic facts, if requisite to the sense, must be averred in the introduc- tory part of the indictment.* Thus, in an action for the words "he is a thief," the defendant's meaning in the use of the word "he" can not be explained by an innu- endo "meaning the said plaintilf," or the like, unless something appear previously upon the record to ground that explanation; but if the words had previously been charged to have been spoken of and concerning the plain- tiff, then such an innuendo would be correct ; for when it is alleged that the defendant said of the plaintiff "he is a thief," this is an evident ground for the explanation given by the innuendo, that the plaintiff was referred to by the word "he."^ "When the language is equivocal and uncertain, or is defamatory only because of some latent meaning, or of its allusion to extrinsic facts and circumstances, then an inducement or innuendo or both are indispensable to express and render certain precisely what the libel is of which the defendant is accused."" But extrinsic facts need not be averred unless necessary to make out the 2CAL. — Grand v. Dryfus, 122 Am. Dec. 397; Bradley v. Cramer, Cal. 58, 54 Pac. 389. ILL..— Ulery 59 Wis. 309, 48 Am. Rep. 511, 18 V. Chicago Live Stock Co., 54 111. N. W. 268. App. 233. IOWA — Quinn v. Provi- 3 Com. v. Meeser, 1 Brest. (Pa.) dential Ins. Co., 116 Iowa 522, 90 492; State v. Spear, 13 R. I. 326; N. W. 349. MICH.— Vickers v. State v. Atkins, 42 Vt. 252. Stoneman, 73 Mich. 419, 41 N. W. Compare: Com. v. Keenan, 67 485. N. H.— Nelson v. Sweet, 8 Pa- St. 203. N. H. 256. N. Y.— Gunning v. Ap- *1 Saund. 121, 6th ed.; Com. v. pleton, 58 How. Pr. 471. ORB.— Snelling, 32 Mass. (15 Pick.) 321. Cole V. Neustadter, 22 Ore. 191, sArchbold's C. P. 494; State v. 29 Pac. 550. PA.— Gosling v. Mor- White, 28 N. C. (6 Ired.) 418. gan, 32 Pa. St. 273. R. I.— Hackett 6 Durfee, C. J., In State v. Cor- V. Providence Telegram Pub. Co., bett, 12 R. L 288. Citing State v. 18 R. I. 589, 29 Atl. 143. VA.— Mott, 45 N. J. L. (16 Vr.) 494; Hogan V. Grant, 16 Gratt. 80. People v. Isaacs, 1 N. Y. Cr. Rep. WIS. — Cramer v. Noonan, 4 Wis. 148; State v. Henderson, 1 Rich. 231; K— v. H— , 20 Wis. 239, 91 L. (S. C.) 179. §228 INDICTMENT — STATUTORY DESIGNATIONS. 277 sense,''^ or when necessary to show the operation upon the rights or property of another of an instrument alleged to have been forged.® 2. "Where the Instrument, as in Larceny, etc., May Be Described Merely by General Designation.^ § 228. Statutory designations must be followed. By State as well as by federal legislation, statutes have been enacted making the larceny of bank notes, bonds, and other writings for the payment of money, highly penal. Questions constantly arise whether certain arti- cles alleged to be stolen are included within these stat- utes. The adjudications are too numerous to be here detailed; and we can only, within the limits assigned to us, fall back upon the general principle that documents stolen, to bring them within the statute, must be de- scribed by the statutory terms. ^ 7 state V. Shelters, 51 Vt. 102, 31 Am. Rep. 679. Averment by innuendo. Where the plaintifE averred, by way ol Innuendo, that the defendant, in attributing the authorship of a certain article to a "celebrated surgeon of whiskey memory," or to a "noted steam doctor," meant by these appellations the plaintifE, it was held notwithstanding the innuendo, that the declaration was bad, for want of an averment that the plaintifE was generally known by these appellations, or that the defendant was in the habit of ap- plying them to him, or something to that effect. — Miller v. Maxwell, 16 Wend. (N. Y.) 9. Business to be averred when an alleged libel affects the prosecutor only in his business standing. — Com. V. Stacey, 8 Phila. (Pa.) 617. Question of truth of innuendoes is for the jury; and they must be supported by evidence, unless they go to matters of notoriety or of which the court takes judicial notice. See cases cited supra; also. Com. v. Keenan, 67 Pa. St. 203; State v. Perrin, 2 Brev. (S. C.) 474; State v. Atkins, 42 Vt. 252. 8 State V. Shelters, 51 Vt. 102, 31 Am. Rep. 679. Forgery of railroad ticket or pass charged, indictment must set out the extrinsic circumstances, showing the authority of the oflS- oer whose name is forged, and the obligations of the railroad com- pany to honor It. — State v. Wea- ver, 84 N. C. 836, 55 Am. Dec. 647. See Com. v. Ray, 69 Mass. (3 Gray) 441; Reg. v. Boult, 3 Car. & K. 604. 1 As to lumping descriptions of notes in larceny, see infra, § 255. 2 As to variance in such cases see Whart. Crim. Ev., § 116. 278 CRIMINAL PEOCEDUEE. l229 § 229. Though geneeal designation is sufficient, yet if indictment puepoets to gn^e woeds, takiance is fatal,. When a general designation of a document is all that is required, then it is ordinarily sufficient to give the statu- tory designation, and it is enough if this is sufficiently accurate to identify the document.^ But if the pleader undertakes to give the words of the document, then a variance as to such words is at common law fatal.^ On the other hand, it is said that if the words are accurately given, an erroneous designation may be treated as sur- plusage.* Nor will the indictment be defective for want* of accuracy of specification, where this specification is the best the pleader could give. This is eminently the' case in prosecutions for larceny of bank bills from the' person, when the bank bills have not been recovered.* "Purporting to he" is not a necessary qualification of the designation.^ 1 Bonnell v. State, 64 Ind. 498. 2 See cases supra; and see Pow- ers V. State, 87 Ind. 97; United States V. Keen, 1 McL. C. C. 429, Fed. Gas. No. 15510; United States V. Lancaster, 2 McL. C. C. 431, Fed. Cas. No. 15556; R. v. Craven, R. & R. 14. 3 Infra, § 230. In an indictment for falsely pre- tending a paper to be a valid promissory note, It is sufficient to designate it, setting it forth not being necessary. — Com. v. Coe, 115 Mass. 481; R. v. Coulson, T. 7 M. 332, 1 Den. C. C. 592, 4 Cox. C. C. 332. 4 Infra, §§ 234 et seq.; Wilson v. State, 69 Ga. 591. 6 Kerr's Whart. Crim. Law, § 944; infra, § 230; State v. Gar- diner, 23 N. C. (1 Ired.) 27; R. v. Birch, 2 W. BI. 790, 96 Bng. Repr. 464, 1 Leach 79. Rulings under statutes: The following references to rulings un- der statutes may be of value: Alabama: See Wilson v. State, 1 Port. 118; Sallie v. State, 39 Ala. 691. Connecticut: Where an infor- mation for theft described the property alleged to be stolen as "thirteen bills against the Hart- ford Bank, each for the payment a'nd of the value of ten dollars, issued by such bank, being an In- corporated bank, in this State," it was held that this description was sufficiently certain. — Salisbury v. State, 6 Conn. 101. Georgia: See State v. Allen, Charlt. 518. Maryland: In an Indictment founded upon the Act of 1809, ch. 138, for stealing a bank note, it is sufficient to describe the note as a bank note, for the payment of, etc., and of the value of, etc. Nothing more is required than to §229 INDICTMENT GENERAL DESIGNATION. 279 charge the offense In the language of the act. — State v. Cassel, alias, Baker, 2 Har. & G. 407. Massachusetts: An indictment under the Act of March 15, 1785, for larceny, alleging that the de- fendant stole "a bank note of the value of of the goods and chattels of " is sufficient, •without a more particular descrip- tion of the note. — Com. v. Rich- ards, 1 Mass. 337. "Divers bank - bills, amounting in the whole to etc., and of the value of, etc., of the goods and chattels," etc., has been held suffi- cient. — ^Lamed v. Com., 53 Mass. (12 Met) 240; Com. v. Sawtelle, 65 Mass. (11 Cush.) 142; see other cases, infra, §§ 235, 254. "Certain moneys, to wit, divers promissory notes, current as money in said Commonwealth." — Com. V. Ashton, 125 Mass. 384; see, for other cases, infra, § 236. "Sundry bank-bills and sundry promissory notes issued by the United States, commonly called legal tender notes, all said bills and notes together amounting to ninety dollars, and of the value of ninety dollars," is not an adequate description of the United States treasury notes. — Com. v. Cahill, 94 Mass. (12 Allen) 540. "For the payment of money" need not be averred of a promis- sory note.— Com. v. Brettun, 100 Mass. 20S, 97 Am. Dec. 95. Mississippi: See Damewood v. State, 2 Miss. (1 How.) 262; Greeson v. State, 6 Miss. (5 How.) 33. National notes are not correctly described as "$150 in the United States currency." — M e r r i 11 v. State, 45 Miss. 651; see infra, §236. Missouri:, It is not necessary to allege that the bank is char- tered. — McDonald v. State, 8 Mo. 283. New Hampshire: Hamblett T. State, 18 N. H. 384. New Jersey: "Bank notes," pleaded as such, are not goods and chattels under the statute. — State V. Calvin, 22 N. J. L. (2 Zab.) 207. New York: A contract not un- der seal is incorrectly described as a bond, and the error is fatal. — People V. Wiley, 3 HIU 194. Where the indictment stated that the defendant stole "four promissory notes, commonly called bank notes, given for the sum of fifty dollars each, by the Mechanics' Bank in the city of New York, which were due and unpaid, of the value of two hundred dollars, the goods and chattels of" P. C, then and there found," etc., it was held a suffi- cient description without saying they were the property of P. C. The word chattels denotes prop- erty and ownership. — People v. Holbrook, 13 John. 90; see, also. People V. Jackson, 8 Barb. 637. North Carolina: In an indict- ment for stealing a bank note, a description of the note in the fol- lowing words: "one twenty dollar bank note on the State Bank of North Carolina, of the value of twenty dollars," is good. — State v. Williamson, 6 N. C. (3 Murph.) 216; State v. Rout, 10 N. C. (3 Hawks) 618; State v. Fulford, 61 N. C. (1 Phil.) 563. Ohio: See McMillan v. State, 5 Ohio 269; Grummond v. State, 10 Ohio 510. Pennsylvania: Under the Act of 15th April, 1790, an indictment 280 CRIMINAL PROCEDURE. i230 3. What General Legal Designation Will Suffice. § 230. ip DESIGNATION BE ERRONEOUS, VARIANCE IS FATAL — ' ' Purporting to be. ' ' The pleader may aver the instru- ment to be of the class prohibited, or he may aver that it "purports to be," etc.; e. g., he may say that the defendant forged "a certain will," or "a certain false, etc., paper writing purporting to he the last will," etc.,^ though, as has just been seen, "Ipurporting to be" may be omitted.^ At common law, however, great care is nec- essary in this respect, since, if the document turns out in proof not to be what the indictment declares it pur- ports to be, the variance is fatal.^ But, as has been already observed, when the tenor is correctly given, the general designation of the document may be rejected for stealing bank notes must lay them as promissory notes for the payment of money, and therefore an indictment for stealing a "ten dollar note of the President, Di- rectors, and Company of the Bank of the United States." is had. — Com. V. Boyer, 1 Blnn. 201. Under Act of 1810, see Spang- ler V. Com., 3 Blnn. 533; Stewart V. Com., 4 Serg. & R. 194; Com. v. McLaughlin, 4 Rawle. 464; Com. v. McDowell, 1 Browne 360. By the revised Act of 1860, Pamph. 435, it is sufficient if the instrument be averred by the name by which It is generally known. — See Com. T. Henry, 2 Brewst. 566; Com. v. Byerly, 2 Brewst. 568. Tennessee: See Hite v. State, 17 Tenn. (9 Yerg.) 357. United States Courts: Money • and bank notes, and coin, are "personal goods," within the meaning of the sixteenth section of the Crimes Act of 1790, ch. 36, respecting stealing and purloining on the high seas. See United States V. Hinman, 1 Baldw. C. C. 292, Fed. Cas. No. 15370; United States V. Lancaster, 2 McL. C. C. 431, Fed. Cas. No. 15556; United States v. Moulton, 5 Mas. C. C. 537, Fed. Cas. No. 15827. 1 2 East P. C. 980; State v. Gar- diner, 23 N. C. (1 Ired.) 27; R. v. Birch, 1 Leach C. C. 79; Kerr's Whart. Crim. Law, §§ 933 et seq. 2 Supra, § 229. 3 MO. — Dowing v. State, 4 Mo. 572. N. Y.— People v. Holbrook, 13 John. 90. N. C— State v. Will- iamson, 7 N. C. (3 Murph.) 216; State V. Weaver, 94 N. C. 836, 55 Am. Rep. 647. OHIO— Grummond V. State, 10 Ohio 510. TEX.— Con- lee V. State, 14 Tex. App. 222. ENG.— R. V. Jones, 1 Doug. 300, 1 Leach C. C. 204; R. v. Edsall, 2 East P. C. 984, 1 Bennett & Heard's Lead. Cas. 318; R. v. Reading, 2 Leach C. C. 590, 2 East P. C. 952; R. v. Gilchrist, 2 Leach C. C. 657. And see fully Whart. Crlm. Ev., §116; Kerr's Whart. Crim. Law, §§ 933 et seq. §§231,232 INDICTMENT " RECEIPT, " INCLUDES WHAT, 281 as surplusage.* In libel, it is not necessary to aver that the publication was in a newspaper.^ §231. "Receipt" includes all signed admissions of PAYMENT. "Settled, Sam. Hughes," at the foot of a bill of parcels, was held to support an allegation of a receipt without any explanatory averment.^ Anything that ad- mits payment, and is signed, is enough to bring the instrument within the term "receipt."^ But if the fact of payment does not either appear on the instrument or is not averred,* or the name of the receiptor is want- ing, or is obscure and is not helped out by averments,* the term "receipt" is not sustained.^ And such explana- tory matter must not only be averred, but proved.® § 232. " Acquittance ' ' includes dischaeges from duty. Acquittance is a term used in some statutes as cumu- lative with receipt, and all receipts may be regarded as acquittances ;^ but all acquittances are not receipts, as an acquittance may consist in an instrument simply dis- charging another from a particular duty.^ 4 Com. V. Castle, 75 Mass. (9 3 Clark v. State, 8 Ohio St. 630; Gray) 123; Com. v. Coe, 115 Mass. State v. Humphreys, 29 Tenn. (10 581; R. V. Williams, T. & M. 382; Humph.) 442; R. v. West, 2 Car. 2 Den. C. C. 61, 4 Cox C. C. 356. & K. 496, 61 Bug. C. L. 495, 1 Though see Mr. Greaves's criti- Den. C. C. 258; R. v. Pries, 6 Cox cism, 2 Rus. on Cr., 4th ed., 811, C. C. 165; R. v. Goldstein, R. & note; Heard's Cr. PI. 213. R- C. C. 473; R. v. Harvey, R. & B Rattray v. State, 61 Miss. 377. ^- ^^'^■ 1 R. V. Martin, 1 Moody C. C. See Kerr's Whart. Crim. Law, 946. 483; 7 Car. & P. 549, 32 Eng. C. L. , ^ ^_ hunter, 2 Leach C. C. 752; R. V. Rogers, 9 Car. & P. 41, gg^^ ^ ^ast P. C. 997; R. v. Board- 38 Eng. C. L. 36; R. v. Boardman. ^^^_ ^ ^^^^ ^ ^ ^4^. ^^^,^ 2 Moody & R. 147. ^^^^^ Crim. Law, § 946. 2 R. V. Houseman, 8 Car. & P. g Com. v. Lawless, 101 Mass. 32. 180, 34 Eng. C. L. ,178; TesUck'a « See infra, §§239, 240; and see Case, 2 East P. C. 925; R. v. Kerr's Whart. Crim. Law, §§933 Moody, Leigh & Cave, 173. et stfq., 946. Under peculiar Massachusetts 1 See R. v. Atkinson, 2 Moody statute, see Com. t. Lawless, 101 215. Mass. 32. 2 Com. v. Ladd, 16 Mass. 526. 282 CRIMINAL PEOCEDURE. § 233 A certificate "by a society that a member has paid up all his dues, and is honorably discharged, is, under the English statute, neither an acquittance nor a receipt f nor is a scrip certificate in a railway company.* §233. "Bill of exchange" to be used in its tech- nical SENSE. If the drawer's, payee's, or drawee's name be wanting or be insensible ; if the engagement is on its face conditional;^ if the amount be uncertain, or if it be not expressed in money, the instrument will not sus- tain the technical description.^ And so if there be an obscurity or error in the "acceptance,"* or the indorse- ment;* and so where the instrument was made payable to or order.° That a bill drawn by a person in his own favor, and by him accepted and indorsed, is a "bill of exchange," is asserted in Massachusetts,^ though in England the inclination of authority is the other way.'' It is not necessary, in New York, to aver that there was money due on the bill.^ A ' ' cheque " is a bill of exchange under the statute.* 3 R. V. Frencli, L. R. 1 C. C. R. 219, 22 Eng. L. & B. 597. See 217. See Com. v. Lawless, 101 Kerr's Whart. Grim. Law, §§ 945 Mass. 32. at seq. 4 Clark V. Newsam, 1 Exch. 13; 3 R. v. Cooke, 8 Car. & P. 582, R. V. West, 1 Den. C. C. 258, 2 34 Eng. C. L. 903; R. v. Rogers, 8 Cox C. C. 437. Car. & P. 629, 34 Eng. C. L. 930. 1 R. V. Harper, 44 L. T. (N. S.) 4 R. v. Arscott, 6 Car. & P. 408, 615. 25 Eng. C. L. 499. 2 People V. Howell, 4 Johns. Payable to drawer's own order, (N. Y.) 296; R. v. Hart, 6 Car. & neither Indorsement nor accept- P. 106, 25 Eng. C. L. 345; R. v. ance Is needed. — R. v. Smith, 2 Mopsey, 11 Cox C. C. 143; R. v. Moody 295; R. v. Wicks, R. & R. Curry, 2 Moody 218; R. t. Smith, 149. 2 Mood. 295; R. v. Butterwick, 6R. v. Randall, R. & R. 195. 2 Mood. & R. 196; R. v. Bartlett, 6 Com. v. Butterick, 100 Mass. 2 Moody & R. .362; R. v. Wicks, 12. R. & R. 149; R. V. Randall, R. & 7R. v. Smith, 2 Moody 295. R. 195; R. V. Birklett, R. & R. 251. 8 Phelps v. People, 13 N. Y. Sup. Whether drawee's name can bo Ct. 401; Phelps v. People, 72 N. Y, dispensed with, if place of pay- 334, 372. ment he given, see R. v. Smith, 2 9 State v. Pierson, 59 low'a 271, Mood. 295; R. v. Snelling, Dears. 13 N. W. 291; Hawthorn v. State, §§234,235 indictment promissory note. 283 §234. "Pkomissoby note" used in a laegeb sense. Great liberality has been shown in the interpretation of this term when used in statutes making the forgery or larceny of "promissory notes" penal. Thus, it has been held to include bank notes,' where the statute does not specifically cover "bank notes," though it seems to be otherwise when it does;^ while it does not include silver certificates.^ It is not necessary, in prosecutions for larceny, that the note be locally negotiable,* or be anything more than a mere due bill.^ It was at one time ruled in Pennsylvania, that if a note be not averred or implied to be still due and unpaid, it will not be within the statute,® though it is enough if on the face of the paper it appears still outstanding. '^ And though an in- strument signed by M. and payable to his order is not a promissory note until indorsed, an allegation that D., in forging the indorsement, forged the indorsement of a promissory note, may be sustained.* § 235. "Bank-note" inoludes notes issued by banks. In England, in an indictment under the 2 Geo. 2, c. 25, the instrument stolen must be expressly averred to be a bank note, or a bill of exchange, or some other of the 56 Md. 530; Whart. on Cont, What is not negotiable in one §§ 834, 840. country may be negotiable in an- 1 MASS.— Com. v. Paulus, 77 other.— Wliart. Confl. of Laws, Mass. (11 Gray) 305; Com. v. Ash- §447 ton, 125 Mass. 384. MO.— Hobbs v. ^ ' , ^. ,, ,. ^ ,. «i 1 n •«, ore- -KT -tr T. i„ sPeoplev. Finch, 5 John. State, 9 Mo. 855. N. Y. — People v. '^ ". • Jackson, 8 Barb. 637. PA.— Com. ^^- '^'^ ^^'^^ V. Boyer, 1 Binn. 201. « Stewart v. Com., 4 Serg. & R. Contra: Culp v. State, 1 Port (Pa.) 194; Com. v. M'Laughlin, 4 (Ala.) 33, 26 Am. Dec. 357. Rawl. (Pa.) 464. 2Damewood v. State, 2 Miss. 7 Ibid. ; Com. v. Richards, 1 Mass. (1 How.) 262; Spangler v. Com.. ^3^ ^^^ ^^^ ^ ^ 3 Bmn. (Pa.) 533. s Stewart v. State, 62 Md. 413. ^^"^- ^OS- ^^ Am. Dec. 95; Phelps 4 Story, on Bills, §60; Sibley v. ^- ^^°^^^- '^^ N. Y. 334; State v. Phelps, 60 Mass. (6 Cush.) 172; 1^°"*- 10 N. C. (3 Hawks) 618. People V. Bradley, 4 Park. Crim. s Com. v. Dallinger, 118 Maes. Rep. (N. Y.) 245. 439. . 284 CRIMINAL PEOCEDURB. § 235 securities specified; and, therefore, it is insufficient to charge the defendant with stealing a certain note, com- monly called a bank note, for none such is described in the act.^ And in the case of a bank note, it is sufficient to describe it generally as a bank note of the Governor and Conlpany of the Bank of England, for the pajnnent of one pound, etc., the property of the prosecutor; the said sum of one pound thereby secured, then being due and unsatisfied to the proprietor.^ In Massachusetts, a bank note is sufficiently described as a "bank bill" in an indictment on Rev. Sts. c. 126, § 17, for stealing it.* -^ And an indictment charging the larceny of ' ' sundry bank bills of some banks respectively, to the jurors unknown,' of the value of ," etc., is good.* ' An unnecessarily minute description of a hank note may be fatal; as where an indictment for stealing a bank note alleged it to be "signed for the Governor and Company of the Bank of England, by J. Booth," and no evidence of Booth's signature was given, the judges held the prisoner entitled to an acquittal." "Bank bill or note" refers exclusively to bank paper, and does not include an ordinary promissory note.® It includes, however, notes redeemed by the bank, and in its agents ' hands.'' Whether it is necessary to aver the bank to have been incorporated has been already considered.* Under the 1 Craven's Case, 2 East P. C. "Bank-note" and "bank-bill" are 601. synonymous. — State v. Hays, 21 2 Starkie's C. P. 217. See Com. Ind. 176. V. Richards, 1 Mass. 337; Lamed 4 gee State v. Hoppe, 39 Iowa V. Com., 53 Mass. (12 Met.) 240; 468; Com. v. Grimes, 76 Mass. (10 Com. V. Sawtelle, 65 Mass. (11 Gray) 470. Cush.) 142; People v. Holbrook, 13 ^ ^ ^ Graven. Russ. & Ry. 14; John. (N. Y.) 10; State r. William- ^^^^^ ^^.^ ^^g son, 7 N. C. (3 Murph.) 216, and „ . ' ° other cases cited. Whart. Crlm. ,/ ^tate v. Stimson, 24 N. J. L. Ev., §116a. (4Zah.)9. 3 Eastman v. Com., 70 Mass. (4 '' Com. v. Rand, 48 Mass. (7 Gray) 416; Com. v. Stebbins, 74 Met.) 475, 41 Am. Dec. 455. Mass. (8 Gray) 493. 8 Supra, § 152. § 236 INDICTMENT — ^FEDERAL TREASURY NOTE. 285 Maine statute it is not necessary to aver either genu- ineness or the name of the bank.^ § 236. Teeasuky note and United States ctjbbency. "National bank currency notes" has been held an ade- quate description;^ and so of "two five dollar United States treasury notes, issued by the treasury depart- ment of the United States government, for the payment of five dollars each and of the value of five dollars."^ "One promissory note issued by the treasury depart- ment of the United States," has been also held sufficient f and so of "four promissory notes of the United States for the payment of money;"* and so of "fifty dollars in national currency of the United States, the exact de- nomination of which is to the grand jury unknown;"^ and so of "dollars in paper currency of the United States of Anaerica."" In Massachusetts, it is held that "three bonds of the United States, each of the value of ten thousand dollars," is a good description;'^ and so of "divers promissory notes current as money in said Commonwealth, of the amount and value of eighty-seven dollars, a more particular description of which is to 9 state V. Stevens, 62 Me. 284. 231. VA.— Dull v. Com., 25 Gratt. 1 United States v. Bennett, 17 9^5. Blatchf. C. C. 357, Fed. Gas. No. Compare: Merrill v. State, 45 Miss. 651. "One five dollar bill circulating medium current as money," has 2 State V. Thomason, 71 N. C. ijgen sustained in Texas.— Reside 146. V. State, 10 Tex. App. 675. See, 3 See Sallle v. State, 39 Ala. 691; supra, § 221. State V. Fulford, 61 N. C. (1 Phill.) As to paper currency, see Riggs 563; Wells v. State, 4 Tex. App. v. State, 104 Ind. 261, 3 N. B. 886; 21 State V. Graham, 65 Iowa 617, 22 4 Hummel t. State, 17 Ohio St. l' ^^,1""'' ^'^'^ ^^ ^'''^''- '° 628. See State v. Liord, 30 La. \ ^^^^^ ^ ^arro, 26 La. Ann. Ann., Part II, 867. 3,^7. gjg^^g ^ Shonhausen, 26 La. 5 ALA. — DuBois v. State, 50 Ala. Ann. 421. 139 ; Grant v. State, 55 Ala. 201. 7 Com. v. White, 123 Mass. 430, TEX.— Martinez v. State, 41 Tex. 25 Am. Rep. 116. See Kearney v. 164 ; Ridgeway v. State, 41 Tex. State, 48 Md. 16. 14572. See Levy v. State, 79 Ala. 259. 286 CRIMINAL PEOCEDURB, § 236 the jurors unknown,"* nor is it a variance tliat the notes were "three tens, eleven fives, and one two," and might have been so known by the grand jury.* "Divers prom- issory notes, of the amount and of the value in all of five thousand dollars, a more particular description of which is to the jurors unknown," is sufficient, and is sustained by proof of bank notes.^" "Divers promissory notes payable to the bearer on demand, current as money in the said Commonwealth, of the amount and of the value of eighty dollars, a more particular description of which is to the jurors unknown," is also good, unless it should appear that the grand jury had at the time of the finding a full description of the notes.^^ But "sun- dry bank bills," "commonly called legal tenders," has been held insufficient.^^ "Certain money and bank bills," to-wit, "six dollars and eighty-five cents in bank bills usually called United States legal tender notes, as fol- lows: one bill of the denomination of five dollars, one bill of the value of one dollar, and eighty-five cents in currency, usually known and called postal currency," was held in New York in 1870 not to be an averment sufficiently accurate to sustain a conviction for stealing national bank notes and United States fractional cur- 8 Com. V. Green, 122 Mass. 333. the notes stolen were either bank "Divers promissory notes" suffl- Wlls or treasury notes. The words ciently describes bank notes. See "of the currency current in this Com. V. Jenks, 138 Mass. 484. commonwealth" are equivalent to «Ti.-j o /-I ~ ^ xj,.=c,=-.r 111 "current as money in this com- » Ibid. See Com. v. Hussey, 111 .^t, „ ^ „ .^^. monwealth." — Com. v. Griflaths, 126 Mass. 432. „ „_„ Mass. 252. 10 Com. V. Butts, 124 Mass. 449. ^^ Com. v. Cahill, 94 Mass. (12 See McQueen v. State, 82 Ind. 72. ^jj^^^j ^^^. Territory v. Shipley, 11 Com. T. Gallagher, 126 Mass. 4 Mont. 468, 2 Pac. 313; Hamblett 54; S. P., Com. v. Ashton, 125 y State, 18 N. H. 384. Mass. 354. "Divers United States treasury Indictment under IVIass. Gen. notes, and national bank notes and Stats., ch. 160, §24, charging the fractional currency notes, amount- robbery of several "promissory ing in the whole to $158.00, and notes then and there of the cur- of the value of $158.00," is suffi- rency current in said common- cient. — State v. Hurst, 11 W. Va. wealth," is sustained by proof that 54. ij § 237, 238 INDICTMENT ' ' MONEY, ' ' CONVERTIBLE. 287 rency.^ It was conceded that to charge the notes sim- ply as "current bank bills of the value of ," etc., would have been enough. But it was insisted that when surplus descriptive matter, varying the character of the thing stolen, is introduced, this must be proved.^'' But "$275 in money, lawful money of the United States, and of the value of $275," is now held sufficients^ § 237. " Money ' ' is convertible with cukeency. Under the general term "money," bank notes, promissory notes, or treasury warrants can not be included, unless they be made a legal tender.^ In England, however, it has been held that bank notes, when a legal tender, are properly described in an indictment for larceny as "money," although at the time they were stolen they were not in circulation, but were in the hands of the bankers them- selves.^ Whatever is currency is money. §238. "Goods and chattels" includes personalty, ExcLusrvB OP CHOSES IN ACTION. Under "goods and chat- tels," it has been ruled that bank notes can not be in- 13 People V. Jones, 5 Lansing . Miss. (12 Smed. & M.) 58. N. C. — (N. Y.) 340. State v. Jim, 7 N. C. (3 Murph.) 3. 14 IND.— Hickey v. State, 23 Ind. OHIO — Johnson v. State, 11 Ohio 21, 334, 340. LA. — State v. Carson, St. 324. S. C— Lange v. Kohue, 20 La. Ann. 48. MASS.— Com. v. i ^cC. 115 (paper scrip Issued by Butterick, 100 Mass. 1, 97 Am. state under state statute making Dec. 65. MINN.— State v. Ander- ^ g, tender at treasury, not In- son, 25 Minn. 66, 33 Am. Rep. 455. eluded). TENN. — McAuley v. N. Y.— People v. Loop, 3 Park. Or. state, 15 Tenn. (7 Yerg.) 526. Rep. 559; People t. Qulnlan, 6 TEX.— Hale v. State, 8 Tex. 171; Park. Cr. Rep. 9. S. C— State v. Davidson v. State, 12 Tex. App. Evans, 15 Rich. 31. WIS.— Mo- 214. VA.— Com. v. Swinney, 1 Va. Entee v. State, 24 Wis. 43. cas. 146, 5 Am. Dec. 512. ENG.— 15 People V. Reavey, 38 Hun R. v. Major, 2 East P. C. 118; R. v. (N. Y.) 418. Hill, R. & R. 190. 1 ARK.— Wells V. Cole, 27 Ark. 2 R. v. West, 7 Cox C. C. 183, 603 (state scrip not included). 40 Eng. Law & Eq. 564; Dears. & IND.— Colson V. State, 7 Blackf. B. 109; R. v. Godfrey, Dears. & B. 590. MISS.— Williams v. State, 20 426. 288 CKIMINAL PEOCEDUEE. 239 eluded,^ nor bonds and mortgages,^ nor coin.' But, be this as it may, it seems that in such case the words "goods and chattels" may be discharged as surplusage, and a conviction sustained without them.* And the ten- dency is to embrace in the term all movables, e. g., poul- try and other live stock f and grain in a stable.* Indeed, it would seem as if whatever is subject to common law larceny should be embraced in the term unless restricted by statute.'' § 239. "Wakeant" is aist instrument calling foe pay- ment OE DELivEEY. "Warrant" is now held to include any instrument calling for the payment of money or delivery of goods, on which, if genuine, a prima facie case of recovery could be made.^ 1 MASS. — Com. V. Eastman, 68 Mass. (2 Gray) 76. N. J.— State V. Calvin, 22 N. X L. (2 Zab.) 207. N. C— State v. Jim, 7 N. C. (3 Murph.) 3. VA. — Com. v. Swin-, ney, 1 Va. Cas. 146, 5 Am. Dec. 512. Contra: People v. Kent, 1 Doug. (Mich.) 42. As to English practice, see R. v. Mead, 4 Car. & P. 535, 19 Eng. G. L. 637 (halves of bank-notes sent by mail held "goods and chattels") ; Anon., 1 Crawf. & Dix. C. C. 152; R. V. Crone, Jehb 47; R. V. Dean, 2 Leach 693 (merely holds notes to be "money"). Railway ticket has been said to be a "chattel." — R. v. Boulton, 1 Den. C. C. 508, 2 Gar. & K. 917, 61 Eng. C. L. 917. Compare: R. v. Kilham, L. R. 1 C. C. 264; Steph. Dig. C. L., art. 288, doubting. And whenever term "goods and chattels" is used as nomen gen- eralissimum in statutes, and is not connected with the terms "money" and "property," it should have this general construction. 2R. V. Powell, 14 Eng. Law & 'Eg. 575, 2 Den. C. C. 403. 3 R. V. Radley, 3 Cox C. G. 460, 1 Den. C. C. 450; R. v. Davidson, 1 Leach 241. Though see Hall v. State, 3 Ohio St. 575; United States v. Moulton, 5 Mas. C. C. 537, Fed. Cas. No. 15827. 4 Ibid.; Com. v. Eastman, 68 Mass. (2 Gray) 76; Com. v. East- man, 75 Mass. (4 Gray) 416; Com. V. Bennett, 118 Mass. 452; R. v. Morris, 1 Leach C. G. 109. See, also, supra, §§ 200, 229. 5 2 East P. C. 748; R. v. Whit- ney, 1 Moody 3. 6 State V. Brooks, 4 Conn. 446. 7 State V. Bonwell, 2 Har. (Del.) 529. 1 R. V. Vivian, 1 Car. & K. 719, 47 Eng. C. L. 719; 1 Den. G. C. 35; R. T. Dawson, 2 Den. C. C. 75, 5 Cox C. C. 220, 1 Eng. Law & Eq. 589. A "dividend" warrant falls under this head. — R. v. Autey, Dears. & 240 INDICTMENT ORDER, IMPLICATION. 289 §240. "Obdee" IMPLIES MANDATORY POWER. "Order" implies beyond this, a mandatory power in the drawer.^ Under statute, in some of the states, an "order" does B. 294, 7 Cox C. C. 329; and so does a letter of credit. — R. v. Raake, 2 Moody 66; and so, dis- tinctively, of any letters author- izing but not commanding a par- ticular act; and this constitutes the chief differentia between war- rant and order. Perhaps the only cases, therefore, to which "order" does not apply, but "warrant" does, are those in which there is a discretionary power reserved to the drawee. An authority to a correspondent to advance funds if he thinks best, is a "warrant" but not an "order." See R. V. Williams, 2 Bast P. C. 581. Warrants include aiso (as has been seen) instruments where the drawer assumes mandatory power; e. g., besides the cases just men- tioned, post-office drafts (R. v. Gil- christ, 2 Leach 657, 2 M. C. C. 233, C. & M. 224) and bills of ex- change. — R. V. Willoughby, 2 East P. C. 581. iMcGuire v. State, 37 Ala. 161; R. V. Williams, 2 Car. & K. 51, 61 Eng. C. L. 50. Prima facie case is enough; and though the drawer has neither money nor goods in the drawee's hands, and there is no privity be- tween them, yet, as the instru- ment could be none the less on its face the basis of a suit, it does not, from such latent defects, lose the qualities of a forgeable order. See People v. Way, 10 Cal. 336; R. v. Carte, 1 Car. & K. 741, 47 Eng. C. li. 741; R. v. Lockett, 1 Leach 110. I. Crim. Proo. — 19 But a prima facie drawer and drawee are necessary; and the drawer must occupy, on the face of the instrument, the attitude of "ordering," and the drawee the re- lation of being "ordered." See cases just cited, and People v. Far- rington, 14 John. (N. Y.) 348; R. v. Curry, 2 Moody 218; R. v. Cullen, 5 Car. & P. 116, 24 Eng. C. L. 481; R. V. Richards, R. & R. 193. Yet that there niay be cases where a drawee's name can be dis- pensed with is on reason clear. An order on the keeper of a prison, for instance, or on the sheriff of a county, is no less an order because the drawee's name is not given; and so we can con- ceive of an order by a factory treasurer on the factory store- keeper, to which the same remark would apply. As sustaining this may be cited Com. v. Butterick, 100 Mass. 12; Noakes v. People, 25 N. Y. 380; R. v. Snelling, Dears. 219, 22 Eng. L. & Eq. 597; R. v. Gilchrist, 2 Moody 233. Defectiveness, or eiliptlcal ob- scurity does not destroy the forge- able character of the instrument as an "order," if it can be proved to be an order by parol. But if so, • the wanting links must be sup- plied by special averment in the indictment. See, supra, §226; Kerr's Whart. Crim. Law, §§ 887 et seq. Yet when this is done, our courts have not been so fas- tidious, as appears to have been sometimes the case in England, as to require each "order" to come up to a preconceived legal stan- 290 CRIMINAL PEOCEDUEE. §241 not mean an act imparting a right on the part of the per- son who is supposed to have made it, and imposing a duty upon the person to whom directed, but it may be a mere request to pay money or deliver goods to a designated person.* §241. "Reqxiest" includes meee invitation. "Re- quest" is wider still, and includes a mere invitation, and is technically proper in cases where the party supposed to draw is without authority to draw;^ nor is it neces- sary that a drawer shoidd be specified.^ Cheques, drafts, dard. This, perhaps (besides our emancipation from the numbing effect on old English judges of the consciousness of the death penalty In forgery), may be at- tributed to the fact that in this country everybody does business in every sort of way, while in England the class is comparatively limited, and restricted to settled forms. As sustaining the Ameri- can liberalization of the rule, see: ALA.— MoGuire v. State, 37 Ala. 361; Jones v. Staye, 50 Ala. 161. CONN. — State v. Cooper, 5 Day 250. GA.— Hosklns v. State, 11 Ga. 92; Johnson v. State, 62 Ga. 299. MASS. — Com. V. Fisher, 17 Mass. 46; Com. v. Butterick, 100 Mass. 12. N. Y. — People v. Shaw, 5 John. 236; People v. Farrington, 14 John. 348. "Order for money" has a well- understood meaning, and consists of a direction made to one who is Indebted to the maker of the order, to pay the money owing, or a designated portion thereof, to a person named. — People v. Smith, 112 Mich. 192, 67 Am. St. Rep. 392, 70 N. W. 466, followed in Leslie V. State, 10 Wyo. 10, 69 Pac. 2. 2 Hoskins v. State, 11 Ga. 92. "Request" as an "order": The following was held to be an "order for the payment of money," al- though the party addressed was not indebted to the supposed drawer, or bound to comply: "Mr. Campbell, please give John Kep- per $10, Frank Neff." — Com. v. Kepper, 114 Mass. 278. Even in England a note from a merchant asking that the bearer should be permitted to test wine in London docks, is an "order" for the delivery of goods. — R. v. Illedge, 2 Car. & K. 871, 61 Eng. C. L. 871, T. & M. 127, 3 Cox C. C. 552. 1 R. V. Walters, Carr. & M. 588, 41 Eng. C. L. 320; R. v. Evans, 5 Car. & P. 553, 24 Eng. C. L. 704; R. V. James, 8 Car. & P. 292, 34 Eng. C. L. 740; R. v. White, 9 Car. & P. 282, 38 Eng. C. L. 173; R. V. Thomas, 2 Moody 16; R, v. Newton, 2 Moody 59; R. v. Kay, L. R. 1 C. C. 257. 2R. V. Pulbrook, 9 Car. & P. 37, 38 Eng. C. L. 34. §242 INDICTMENT — CUMULATIVE TERMS. 291 and bills of exchange fall under either head.* The writ- ing need not be of a business character, nor negotiable.* § 242. Tbbms may be trsED cumulatively. When the pleader is doubtful as to the class in which the instru- ment falls, it seems that instead of averring the instru- 3People V. Howell, 4 John. (N. Y.) 296; State v. Nevins, 23 Vt. 519; R. V. Shepherd, 2 East P. C. 944; R. v. WiUoughby, 2 East P. C. 944. So is a post-dated check. — ^R. v. Taylor, 1 Car. & K. 213, 47 Eng. C. L. 213. But not a warrant for wages, — R. V. Mitchell, 2 P. & F. 44. 4 2 Russ. on Crimes 514. A forged instrument of writing was in the following terms: "Mr. Davis: Wen. 19th. "pleas let the boy have $6.00 dolers for me. B. W. Earl." It was held that such instru- ment is prima facie an "order for the payment of money" within the meaning of the statute. — ^Evans v. State, 8 Ohio St. 196, 70 Am. Dec. 98. IVIany subtleties formeriy ex- isted in tlie English law as to the distinctions between these several designations. The following cases are generally referred to under this head: R. v. Roberts, Car. & M. 682; R. v. Williams, 2 Car. & K. 51, 61 Eng. C. L. 50; R. v. Hart, 6 Car. & P. 106, 25 Eng. C. L. 345; R. V. Dawson, 2 Den. C. C. 75, 5 Cox C. C. 220, 1 Eng. L. & Eq. 589; R. V. Mcintosh, 2 East P. C. 942; R. V. Anderson, 2 Moody & R. 469. The pleader has been relieved from most of these by a more recent case (1850), where it was held that if the instrument be set out in haec verba, a misdescrip- tion will be immaterial, at least If it fall within one of several terms used to designate it. — R. v. Williams, 2 Den. C. C.,61, 4 Cox C. C. 356, cited, supra, §§ 230, 239, 240. The intimation was even thrown out that where the indictment sets forth the forged instrument, the court will see whether It is within the statute (when the indictment is under a statute), and if so, will sustain a conviction, although it was not specifically averred to be an instrument which the statute covered. Thus, where the indict- ment charged the defendant to have forged a certain warrant, order, and request, in the words and figures following, to wit: "Mr. Sevan, S Pleas to send by bearer a quantity of basket nails," etc., the Court of Criminal Appeal, Lord Campbell presiding, sustained the conviction, appar- ently on the ground that if there was a technical misnomer of the instrument, this was cured by its being fully set forth, and thus speaking for itself. — R, v. Will- lams, 2 Den. C. C. 61, 4 Cox C. C. 356, 2 Eng. Law & Eq. 633. See other cases cited supra, §§ 230, 239. "W. Trim, 2s.," simply, is insen- sible and incurable. — ^R. v. Ellis, 4 Cox C. C. 258. 292 CRIMINAL PROCEDURE. § § 243, 244 ment, as in the case last cited, to be "a certain warrant, order, and request," the better course is to aver the uttering of one warrant, one order, and one request. But it is doubtful whether even this is not duplicity, where the words do not each describe the object,^ and hence, where there is a question whether the document is an "order," or "request," or "warrant," it is safe to give to each designation a separate count.^ § 243. Defects may be explained by aveements. If the writing, on its face, comes short of being either an order, warrant, request, or other statutory term, averment may be made, and evidence received, bringing it up to the required standard, as where the name of the party ad- dressed is omitted;^ or where the body of the writing is on its face insensible.^ And where the fraudulent or illegal character of the document does not appear on its face, this must be helped out by averments.* Innuendoes have been already discussed.* § 244. A ' * deed ' ' M usT be isr writing undes seal pass- ing A EIGHT — "Bonds." To sustain the averment of a deed, there must be a writing under seal, purporting to pass some legal right from one party to another, either mediately or immediately ; and hence a power of attorney 1 R. T. Gilchrist, 2 M. C. C. 233, See, supra, § 231. Car. & M. 224, 41 Eng. C. L. 126; 2R. v. Atkinson, Car. & M. 325, R. V. Crowther, 5 Car. & P. 316, 41 Eng. C. L. 181; R. v. Walters, 24 Eng. C. L. 583. See Com. v. Car. & M. 588, 41 Eng. C. L. 320; Livermore, 70 Mass. (4 Gray) 18. R. v. Pulbrook, 9 Car. & P. 37, Sed quaere whether the unnec- ^^ ^^^- *^- ^- ^4; R. v. Hunter, 2 essary cumulation could not be ^each C. C. 624; R. v. Cullen. 1 discharged as surplusage. Com- ^oody 300. See State v. Crawford, pare State v. Corrigan, 24 Conn. 13 La. Ann. 300; Com. v. Spilman, 286; Whart. Crim. Ev., §138. ^24 Mass. 327, 26 Am. Rep. 668; -„ „„„ „„„ , ^ Carberry v. State, 11 Ohio St. 410; 2 See. supra, §§207, 208; infra, Terr's Whart. Crim. Law, §§933 §300. et seq. 1 R. V. Pulbrook, 9 Car. & P. 37, 3 Ibid.; Com. v. Hinds, 101 Mass. 38 Eng. C. L. 34; R. v. Rogers, 209; Com. v. Costello, 120 Mass. 9 Car. & P. 41, 38 Eng. C. L. 36; 359. R. V. Carney, 1 Mood. 351. 4 Supra, § 226. §§245-247 INDICTMENT "obligation," SIGNIFICANCE. 293 to sell stock is a deed under the statutes.^ Nor is it neces- sary that a deed should rigorously pursue the statutory form.^ Prima facie validity is enough. The averment of the ''deed" need not give the grantee's name.* "Bond" includes a municipal certificate of indebtedness.* § 245. * ' Obligation " is an unilatekal engagement. Under statutes based, as those of Louisiana, on the Ro- man law, an obligation is an unilateral engagement by which one party engages himself to another to do a par- ticular thing. The English common law authorities some- times speak as if the term is limited to bonds with pen- alties. But when the term is used in a statute as nomen generalissimum, it must be construed in its most liberal sense.* § 246. And so is "undeetaking." As to "under- taking," the same remark is to be made. Where, how- ever, either term is used to represent a subordinate spe- cies or class, then the instrument must be proved to belong to this species or class.^ § 247. A ' ' GTJAEANTEB ' ' AND AN I. 0. U. ARE UNDERTAK- INGS. A "guarantee" is an undertaking;* and so is a bare "I. O. U." without any expressed consideration.^ 1 R. V. Fauntleroy, 1 Car. & P. of a deed within the 24 & 25 Vict, 421, 12 Bng. C. L. 247, 1 Moody 52. ch. 98, § 20. 2 R. V. Lyon, R. & R. C. C. 255. 3 State v. Hall, 85 Mo. 669. In R. V. Morton, 12 Cox C. C. 4 Bishop v. State, 55 Md. 138. 456; L. R. 2 C. C. R. 22, it washeld i See Fogg v. State, 17 Tenn. that the forging of 1 e 1 1 e r s of (9 Yerg.) 392. orders Issued by a bishop, certify- i R. v. West, 1 Den. C. C. 258 ; ing that on a day and at a place 2 Car. & K. 496; S. P., Clark v, mentioned therein A. B. was ad- Newsam, 1 Exch. 131. mitted into the holy order of dea- i R. v. Joyce, 10 Cox C. C. 100, cons, according to the manner L. & C. 576; R. v. Reed, 2 Moody prescribed by the Church of Bng- 62. land, and rightly and canonically 2 R. v. Chambers, L. R, 1 C. C. ordained deacon, in testimony 341. whereof the bishop had caused his Valid acknowledgment of indebt- eplscopal seal to be affixed there- edness. — Kenney y. Flynn, 2 R. I. unto, is not the feloniously forging 319. 294 criminal peoceduee. §§ 248-250 § 248, "Pbopeety" is whatever mat bb appbopbiated. "Property," it needs scarcely be said, includes whatever may be appropriated to individual use. Money neces- sarily falls within this definition.^ §249. "Piece OF paper" IS SUBJECT OF LABCENY. It has been sometimes the practice to aver, in larceny, the steal- ing of "one piece of paper, of the value of one dollar," etc., as the case may be; and it has been thought that in this way the difficulty as to setting out doubtful in- struments could be avoided. How far this is the case will be considered hereafter.^ A "piece of paper," it may be generally said, if of any value, is the subject of larceny.^ § 250. * * Challenges ' ' to fight need not be set forth. A written letter, if merely the inducement or introduction to an oral communication, conveying a challenge, need not be set forth. Thus, where T., in a letter to N., used expressions implying a challenge, and by a postscript referred N., the challenged party, to one H. (the bearer of the letter), if any further arrangements were neces- sary, it was held that the letter was only evidence of the challenge, and need not be specially pleaded ; and that N. might give testimony of the conversation between H., the bearer of the letter, and himself.^ Even when a stat- ute makes sending a challenge indictable, it has been held not necessary to set out a copy of the challenge;^ and if an attempt be made to set out in the indictment a copy, and it varies slightly from the original, as by the addition or omission of a letter, in no way altering the meaning, this is cured by verdict.* 1 People V. Williams, 24 Mich. 1 Den. C. C. 69; R. v. Clark, R. & 156, 9 Am. Rep. 119. R- 181. 1 Infra, §262; Kerr's Whart. J State v. Taylor, 3 Brev. (S. C.) Crfm. Law, § 1115. See R. v. Bing- ^^^^^^ ^ ley. 5 Car. & P. 602, 24 Bng. C. L. ^awks) 487; Brown y. Com.. 2 729. Va. Cas. 516. 2 R. V. Perry, 1 Car. & K. 727, 3 Ivey v. State, 12 Ala. 276. See 47 Eng. C. L. 726; R. v. Perry, Heffren v. Com., 61 Ky. (4 Met.) 5. § 251 INDICTMENT — SETTING OUT SPOKEN WOKDS. 295 IX. Words Spoken. § 251. WOEDS SPOKEN MUST BE SET POBTH EXACTLY, THOUGH SUBSTANTIAL PROOF IS ENOUGH. Where words are the gist of the offense, they must be set forth in the indict- ment with the same particularity as a libel; as, for in- stance, in an indictment for scandalous or contemptuous words spoken to a magistrate in the execution of his office;^ or for blasphemous or seditious or obscene or abusive words,^ or for perjury.* It is not enough, in such case, to lay the substance of the words alleged to have been spoken. The words themselves must be laid, but only the substance need be proved.* But the meaning must be evidently and clearly the same, without the help of any implication or anything extrinsic.^ Should any substan- tial difference exist between the words proved and those laid, even if laid as spoken in the third person and proved to have been spoken in the second,® the defendant must be acquitted. But if some of the words be proved as laid, and the words so proved amount to an indictable offense, it will be sufficient. '^ And when the words do not 1 R. v. Bagg, 1 Rolle 79, 81 Eng. Bell v. State, 31 Tenn. (1 Swan.) Repr. 341; R. v. How, 2 Str. 699, 42. 93 Eng. Repr. 793. See Kerr's Whart. Grim. Law, 2MISS.-Walton y. State, 64 §§1924-1928,1937. Miss. 207, 8 So. 171. N. C.-State Indictments for threatening with V. Brewington, 84 N. C. 783. '"*«"* *° «"*'"■* "'°"^y ^^^ ^^""^^ TEX.-McMalione v. State, 13 Tex. ^^^^ "1°* ^^ ^^t out exactly. The App. 220. ENG.-R. v. Sparling, substance is enough. - Com. v. 2 Str. 497, 93 Eng. Repr. 658; R. v. Goodwin, 122 Mass. 19. Popplewell, 2 Str. 686, 93 Eng. ^ ^^ople v. Warner, 5 Wend, j^g^^ 7g3 (N. Y.) 271; State v. Bradley, 2 N. C. (1 Hayw.) 403, 463; State v. Coffey, 4 N. C. (Term. R.) 272; State V. Ammons, 7 N. C. (3 3 See Kerr's Whart. Crlm. Law, Murph.) 123. §1561; Whart. Grim. Bv., § 120a. g Com. v.Moulton, 108 Mass. 4 MASS. — Com. V. Kneeland, 37 308; R. v. Berry, 4 T. R. 217. Mass. (20 Pick.) 206. MINN.— See Kerr's Whart. Grim. Law, State V. Clarke, 31 Minn. 207, 17 §§ 1924-1928, 1937. N. W. 344. PA. — Undegraph v. 7 Com. v. Kneeland, 37 Mass. (20 Com., 11 Serg. & R. 394. TENN.— Pick.) 206. Contra: Ex parte Foley, 62 Gal, 508. 296 CEIMINAL PEOCEDURE. §§ 252-254 constitute tlie gist of the offense, as where the charge is attempt to extort by threats, then it is enough to set forth the substance.* When, also, it is not the Avords but their tendency that is at issue, it is enough to set forth such tendency ; and hence an indictment for ' ' threat- ening to murder" need not set out the words of the threat.® But, where slanderous words, spoken in the pres- ence of third parties, are made specifically indictable by statute, they must be substantially set forth and the pres- ence of third parties must be averred.^" § 252. In treason enough to set fobth sub- stance. When words are laid as an overt act of treason, it is sufficient to set forth the substance of them,^ for they are not the gist of the offense, but proofs or evi- dences of it merely. X. Personal Chattels. 1. In General. § 253. Scope op treatment. In this connection it is proposed to treat the pleading of personal chattels only so far as necessary for the purpose of a demurrer, or a motion in arrest of judgment. The question of variance between the description and the evidence will be consid- ered in a separate volume.^ 2. Indefinite, Insensible, or Lumping Descriptions. § 254. Personal chattels, when subjects op an op- FBNSE, MUST BE SPECIFICALLY DESCRIBED. When, as in lar- ceny, or receiving stolen goods, personal chattels are the 8 Com. V. Moulton, 108 Mass. lo State v. Brewington, 84 N. C. 308; Com. v. Goodwin, 122 Mass. 783; Wiseman v. State, 14 Tex. 19. App. 7, citing Lagrone v. State, 9 State V. O'Mally, 48 Iowa 501. ^^ Tex. App. 426, and McMahan v. ^ State, 13 Tex. App. 220. S. P., Con- As to common scolding, se& ige v. State, 14 Tex. App. 222. Kerr's Whart. Crlm. Law, §1713. ^^^^^ 194. ^ .^ ^ayer, 8 Mod. As to form of indictment of 93; 6 St. Tr. 328. common scold, see Form No. 638.. 1 Whart. Grim. Ev., §§ 121 et seq. § 254 INDICTMENT— CHATTELS, LUMPING DESCRIPTION. 297 subject of an offense, tliey must be described specifically by the names usually appropriated to them, and the num- ber and value of each species or particular kind of goods stated;^ thus, for instance: "one coat of the value of twenty shillings; two pairs of boots, each pair of the value of thirty shillings ; two pairs of shoes, each pair of the value of twelve shillings ; two sheets, each of the value of thirteen shillings; of the goods and chattels of one J. S.," or "one sheep of the price of twenty shillings," etc., and the like. If the description were "twenty weth- ers and ewes," the indictment would be bad for uncer- tainty; it should state how many of each;^ and su of an indictment charging the stealing of * ' one case of mer- chandise."^ But an indictment charging the defendant with feloniously taking three head of cattle has been held sufficiently certain under a statute, without showing the particular species of cattle taken.* When several articles are stated, it is not necessary to separate them by the jonnecting word "and."® Larceny of "six handkerchiefs" charged, the indict- ment is good, though the handkerchiefs were in one piece, the pattern designating each handkerchief;® and so of an indictment charging the stealing of a "pair of pants ";'' or three hundred pairs of shoes.* The distinctions as to variance of instruments of death are elsewhere discussed.* 1 See 2 Hale 182, 183 ; People v. indictment held suflacient. — State Coon, 45 Cal. 672; Whart. Crim. T. Rathbone, 8 Idaho 167, 67 Pac. Ev.,' §§121-6. 187. 2 2 Hale 183 , Archbold's C. P. 45. 5 State v Bartlett, 55 Me. 200. Otherwise ii Texas. — State v. « 6 Term. R. 267; 1 Ld. Raym. Murphy, 39 Tex. 46. 149 ; Whart. Crim. Ev., § 121. 3 State V. Dawes, 75 Me. 51. T State v. Johnson, 30 La, Ann., 4 People V. Littlefield, 5 Cal. 355. Part II, 904. "Four calves" held sufficient in 8 Com. v. Shaw, 145 Mass. 349, People V. Warren, l-JO Cal. 683, 14 N. E. 159. 63 Pac. 86. See State t. Stelly, 9 Whart. Crim. Ev., §§91-4; 48 La. Ann. 1480. Kerr's Whart. Crim. Law, §§ 652, "Two mares," larceny of charged, 653. 298 cbiminal procedueb. §§255,256 § 255, When notes are stolen in a bunch, denomina- tions MAY BE PEoxiMATELT GIVEN. When several notes are stolen in a bunch, it is rarely that the prosecutor can designate their respective amounts and values. As a matter of necessity, therefore, an indictment charging the larceny of "sundry bank bills, of some banks re- spectively to the jurors unkno-wn,i of the value of $38," etc., is sufficient.^ And there is even authority to the effect that it is enough to say "divers bank bills, amounting in the whole to, etc., and of the value of, etc., of the goods and chattels," etc.^ § 256. Cbetainty must be such as to individuate of- fense. The common acceptation of property is to govern its description, and there must be such certainty as will enable the jury to say whether the chattel proved to be stolen is the same as that upon which the indictment is founded, and will judicially show to the court that it could have been the subject-matter of the offense charged.^ 1 People V. Bogart, 36 Cal. 245; 168; Com. v. Wentz. 1 Ashm. (Pa.) Lang V. State, 42 Fla. 595, 28 So. 269. 856; State v. McAjiulty, 26 Kan. "One hide, of the value of," etc., 533. suflBciently certain. — State v. Dow- 2 Com. V. Sawtelle, 65 Mass. (11 ell, 3 GHll & J. (Md.) 310. Cush.) 142; Com. v. Grimes, 75 "One watch," etc., held sufficient. Mass. (10 Gray) 470, 71 Am. Dec. — ^Widner v. State, 25 Ind. 234. 666. . "One mule," held sufficient in 3 Larned v. Com., 53 Mass. (12 State v. King, 31 La. Ann. 179. Met.) 240; Com. v. O'Connell, 94 "Certain cattle beast," held suffi- Mass. (12 Allen) 451; Com. v. Ca- cient in State v. Credle, 91 N. C. hill, 94 Mass. (12 Allen) 540; State 646. V. Taunt, 16 Minn. 109. Other An indictment charging A. with cases are given, supra, § 236. stealing a printed book, of the Contra: Hamblett v. State, 18 value, etc., is correct, and the title N. H. 384; how v. People, 2 Park, of the book need not be stated. — Cr. Rep. (N. Y.) 37. Turner v. State, 102 Ind. 425, 1 iWhart. Crim. Ev., §121; Com. N. E3. 869; State v. Dowell, 3 Gill V. James, 18 Mass. (1 Pick.) 376; & J. (Md.) 310; State v. Logan, People V. Jackson, 8 Barb. (N. Y.) 1 Mo. 377. 657; Reed's Case, 2 Rodger's Rec. A count charging manslaughter §257 INDICTMENT DEAD AND LIVE ANIMALS. 299 §257. "Dead" animals must be avereed to be such — "Living" animals must be intelligently desceibed. When animals are stolen alive, it is not necessary to state them to be alive, because the law will presume them to be so unless the contrary be stated; but if when stolen the animals were dead, that fact must be stated ; for, as the law would otherwise presume them to be alive, the variance would be fatal.^ But if an animal have the same appellation whether it be alive or dead, and it makes no difference as to the charge whether it were alive or on the high seas, by casting F, A. from a vessel, whose name was unknown, is suflBclently certain; and so of a count cliarging the of- fense to have been committed from a long-boat of the ship W. B., belonging, etc. — ^United States v. Holmes, 1 Wall. Jr. C. C. 1, Fed. Cas. No. 15383. See Com. v. Strangford, 112 Mass. 289. "Lot of Lumber," "Parcel of Oats," "Mixtures." — In Louisiana judgment was arrested on an in- dictment which charged the defen- dant with stealing a "lot of lumber," a "certain lot of furni- ture," and "certain tools." — State V. Edson, 10 La. Ann. R. 229. On the other hand, in North Carolina, a "parcel of oats" was adjudged a sufficient description of the stolen property. — State v. Brown, 12 N. C. (1 Dev.) 137, 17 Am. Dec. 562. The reason of this distinction is, that in the first case a closer description was possible; in the second, not so. And a general description in larceny is enough. This doctrine is founded partly on the fact that the prosecutor is not considered in possession of the article stolen, and is not, there- fore, enabled to give a minute de- scription; and principally, because, notwithstanding the general de- scription, it is made certain to the court, from the face of the indict- ment, that a crime has been com- mitted, if the facts be true. — State V. Scribner, 2 Gill & J. (Md.) 246. Substances mechanically mixed should not be described in an in- dictment as a "certain mixture consisting of," etc., but by the names applicable to them before such mixture, though it is other- wise with regard to substances chemically mixed. — ^R. v. Bond,' 1 Den. C. C. 517. It has been held in Massachu- setts that where brandy was felo- niously drawn from a cask, and then bottled, it could not be de- scribed in the indictment as "bot- tles of brandy." — Com. v. Gavin, 121 Mass. 54, 23 Am. Rep. 255. As to variance in pleading in- strument of death, see Kerr's Whart. Crim. Law, §§ 652, 653. As to variance of goods, see Whart. Crim. Ev., § 121. 1 Com. V. Beaman; 70 Mass. (8 Gray) 497; R. v. Halloway, 1 Car. & P. 127, 12 Eng. C. U 84; R. v. Williams, 1 Mood. C. C. 107; R. V. Edwards, R. & R. 497. 300 CRIMINAL PEOCEDUEE. § 257 dead, it may be called, when dead, by the appellation ap- plicable to it when alive.^ Whether a description is sufficient depends in statutory cases largely on the statute.' It has been held that "one sheep" is a sufficiently exact description;* and so is "a chestnut sorrel horse, "° and "one beef steer,"® and "one black pig, white listed, and one white pig, with a blue rump, both without ear-marks, of the value of $2."'^ But "a yearling" is not a sufficient description.* A "pig" four months old may be called a "hog,"® and "chickens" may be called "hens."^" But "cattle" does not include "sheep" or " goats. "^' When a dead animal, or part of an animal, has a dis- tinctive name, it may be described as such. Hence an in- dictment charging the stealing of ' ' one ham, ' ' of the value of ten shillings, of the goods and chattels of T. H., was held good, although it did not state the animal of which the ham had formed a part.^^ But an indictment for steal- ing "meat" is bad for generality.^^ Variance as to animals is discussed in another vol- ume.^* In a future section it will be seen that the question See Kerr's Whart. Crlm. Law, 6 Taylor v. State, 44 Ga. 263. § 1106. 6 Short V. State, 36 Tex. 644. In State v. Donovan, 1 Houst. 7 Brown v. State, 44 Ga. 300. (Del.) 43, it was held that an 8 Stollenwerk v. State, 55 Ala. averment of the stealing of "two 142. fishes commonly called shad" was 9 Lavender v. State, 60 Ala. 50. good, though the proof was they See People v. Stanford, 64 Cal. 27, were dead. 28 Pac. 106. 2 Smith V. State, 7 Tex. App. lo State v. Bassett, 34 La. Ann. 382; R. V. Puckering, 1 Mood. C. C. 1108. 242. 11 Mcintosh v. State, 18 Tex. Contra: Com. v. Beaman, 70 App. 285. Mass. (8 Gray) 497. 12R. v. Gallears, 2 Car. & K. See, Infra, § 287; Whart. Crim. 981, 61 Eng. C. L. 980, 1 Den. C. C. Ev., i 124; Kerr's Whart. Crlm. 501. Law, § 1109. 13 State v. Patrick, 79 N. C. 656; 3 Infra, § 287. State v. Morey, 2 Wis. 494, 60 Am. 4 State V. Pollard, 53 Me. 124; Dec. 439. Whart. Crim. Ev., § 824. i4 Whart. Crim. Ev., § 124. § § 258-260, INDICTMENT— DESCRIBING ARTICLE. 301 of specification depends largely on the terms of the stat- ute.is § 258. When certain articles only of a class are sub- jects OP INDICTMENT, THEN INDIVIDUALS MUST BE DESCRIBED. Specification is necessary when certain members of a class are subjects of indictment, and certain others not. Thus, an indictment for stealing "three eggs" has been ruled to be bad, because only the eggs of animals domitae naturae are the subject of larceny.^ But an indictment for bestiality, which described the animal as "a certain bitch," was held sufficiently certain, although the female of foxes and some other animals, as weU as of dogs, are so called.^ In larceny this would be bad, as the term would not indicate whether or no the animal was lar- cenous.^ In bestiality this distinction is immaterial. § 259. Minerals and vegetables must be averred to BE severed from REALTY. Au indictment charging the stealing of certain "gold-bearing quartz rocks," is bad. It should appear that the rock was severed from the realty.' "A cabbage" or other vegetable must, at com- mon law, be shown not to have been growing on the field.2 § 260. Variance in number or value immaterial. The prosecutor is bound by the description of the species of goods stated ; thus, for instance, an indictment for steal- ing a pair of shoes can not be supported by evidence of a larceny of a pair of boots. But a variance in the num- ber of the articles is immaterial, provided the verdict rests on an article which is one of the number averred, 15 Infra, § 237. 3 Kerr's Whart. Crim. Law, 1 R. V. Cox, 1 Car. & K. 494, §§ 1104-1106. 47 Eng. C. L. 493; 1 Den. C. C. 502; sed quaere. See Kerr's WTiart. Crim. Law, § 1105. 2 R. V. Allen, 1 Car. & K. 495, Kerr's Whart. Crim. Law, § 1165. 47 Eng. C. L. 495. 2 State v. Foy, 82 N. C, 679. 1 People V. Williams, 35 Gal. 671; State v. Burt, 64 N. C. 619; 302 CRIMINAL PEOCEDURE. §§ 261, 262 and which is sufficient to sustain a conviction.^ So if there be ten different species of goods enumerated, and the prosecutor prove a larceny of any one or more of a sufficient value, it will be sufficient, although he fail in his proof of the rest.^ But it was held otherwise where five certificates of stock of a particular number were alleged to be stolen, and it appeared that only one certifi- cate of that number had been issued.* § 261. Instrument of injury mat be approximately STATED. An instrument of injury must be substantially described ; though when the effect produced by the instru- ment averred and that used is virtually the same, a mere variance in name will not vitiate.^ The question of the effect of the instrument is one of fact for the jury under the direction and supervision of the court.^ Such agen- cies may be cumulatively laid.* Ordinarily the adoption of the statutory description is sufficient.* If the instru- ment be unknown, this may be so averred.^ 3. Value. § 262. Value must be assigned when laeceny is CHARGED. It is uecessaiy that some specific value should be assigned to whatever articles are charged as the sub- 1 CONN.— S t a t e v. Fenn, 41 2 Ibid. DEL.— State v. Town- Conn. 590. MASS. — Hope v. Com., send, 1 Houst. 337. GA. — Tatum 50 Mass. (9 Met.) 134; Com. v. v. State, 59 Ga. 638. N. Y.— People Cahlll, 94 Mass. (12 Allen) 540. v. Casey, 72 N. Y. 393. N. C— N. C— State v. Martin, 82 N. C. State v. Gould, 90 N. C. 659. 672. ENG.— R. v. Forsyth, R. & R. TEX.— McReynolds v. State, 4 Tex. 274. App. 327; Briggs v. State, 6 Tex. 2 Infra, §301; Whart. Crim. App. 144; Hunt v. State, S Tex. Ev., §145; Com. v. Williams, App. 663. 56 Mass. (2 Cush.) 583; Com. v. 3 Supra, §200; Kerr's Whart. Eastman, 68 Mass. (2 Gray) 76; Crim. Law, §652; State v. McDon- People V. Wiley, 3 Hill (N. Y.) aid, 67 Mo. 13; People v. Casey, 194; State v. Martin, 82 N. C. 672. 72 N. Y. 393. Under Texas statute, see Pitt- * State v. Morrlssey, 70 Me. 401; man v. State, 14 Tex. App. 576. State v. Chumley, 67 Mo. 41. Infra, 8 People V. Coon, 45 Cal. 672. § 269. 1 See Whart. Crim. Ev., §§ 91-3. 6 Supra, § 198. §§263,264 INDICTMENT VALUE ESSENTIAL. 303 jects of larceny.^ An indictment can not be sustained for stealing a thing of no intrinsic or artificial valne.^ §263. Laeoeny of "piece of papeb" may be pbose- CX7TED. A count for stealing "one piece of paper, of the value of one cent, ' ' may be good, when a count for steal- ing a bank note fails^ in consequence of the instrument described being void, but not, it is said, where it is valid.^ § 264. Value essential to eestitution and also to MAEK GRADES. It has been said that the object of insert- ing value is either to distinguish grand from petit lar- ceny, or to enable the court to be guided as to imposing fines or restitution; and that when neither of these con- ditions exists (e. g., where a statute punishes horse- stealing, irrespective of value), then value need not be — Value need not be alleged in 1 Roscoe's Crim. Ev., p. 512. ALA.— State v. Wilson, 1 Port. (Ala.) 118; Sheppard v. State, 42 Ala. 531. CONN.— State v. Fenn, 41 Conn. 590. FLA. — Morgan v. State, 13 Fla. 671; Porter v. State. 26 Fla. 56, 7 So. 145. GA.— State V. Allen, Charlton 518. KAN.— State V. Segermond, 40 Kan. 107, 10 Am. St. Rep. 169, 19 Pac. 370. MICH.— Merwin v. People, 26 Mich. 298, 12 Am. Rep. 314; People V. Belcher, 58 Mich, 325, 25 N. W. 303. N. H.— State v. Goodrich, 46 N. H. 186. N. J.— State v. Stim- son, 24 N. J. L. (4 Zab.) 9. N. Y.— People V. Payne, 6 John. 103. S. C. — State V. Smart, 4 Rich. L. 356, 55 Am. Dec. 683; State v. Thomas, 2 McC. 527; State v. Til- lery, 1 Nott. & McC. 9. See, also,' supra, § 254; Whart. Crim. Bv., §126; Kerr's Whart. Crim. Law, § 1190. Contra as to money. — State v. King, 37 La. Ann. 91. See State v. Piefrson, 59 Iowa 271, 13 N. W. 291. current coin. — People v. Rlghetti, 66 Cal. 184, 4 Pac. 1063, 1185. "Lawful currency of the United States of denominations and issue to the jurors unknown," held to be a sufficient description in State v. Shirer, 20 S. C. 392. See Lang v. State, 42 Fla. 595, 28 So. 856. "Twenty-five dollars in money, the property of" a person named, without an allegation of its value, or any excuse for want of a more particular description, held to be fatally defective in State v. Seger- mond, 40 Kan. 107, 10 Am. St. Rep. 169, 19 Pac. 370. 2 State V. Bryant, 4 N. C. 249, 269, 2 Car. Law. Repos. 617. iR. V. Perry, 1 Car. & K. 727, 47 Eng. C. L. 725; R. v. Perry, 1 Den. C. 0. 69; R. v. Clark, R. & R. 181, 2 Leach 1039. 2 Kerr's Whart, Crim. Law, § 1115. 304 CKIMINAL PEOCEDUEE. §§265^266 averred.^ But this is doubtful law; though the amount of value is only material in those cases in which an offense is graduated in conformity to the value of the thing taken.^ And where the value of a thing which is the sub- ject of the offense is necessary to fix the grade of the offense, it is a proper mode of stating it to aver that the thing is of or more than the value prescribed by the stat- ute.^ But where the offense is intent to steal goods, the value of the goods need not ordinarily be given.* § 265. Legal ctjreency need not be valued. An aver- ment of the value of bank notes, not legal tender, is always necessary, but not so of government coins, which are values themselves.^ § 266. When theee is lttmping valuation, conviction CAN NOT BE HAD FOR STEALING EEACTION. A COllective OT lumping valuation, so far as demurrer or arrest of judg- ment is concerned, is always permissible.^ And it is said iRitchey v. State, 7 Blackf. — Eyland t. State, 36 Tenn. (4 (Ind.) 168. See Sheppard v. State, Sneed) 357. Supra, § 236. 42 Ala. 531; Collins v. State, 20 lALA. — Grant v. State, 55 Ala. Tex. App. 199. 210 (statement of aggregate value See Kerr's Wliart. Crim. Law, of bank notes). GAL. — People v. §§ 1190, 1191. Robles, 34 Cal. 591. FLA.— Lang 2 People V. Belcher, 58 Mich. 325, v. State, 42 Fla. 595, 28 So. 856 25 N. W. 303; People v. Stetson, (stating value of stolen coin, de- 4 Barb. (N. Y.) 151; People V. Hig- nomination unknown). KAN. — • bee, 66 Barb. (N. Y.) 131; State v. State v. McAnulty, 26 Kan. 533 Gillespie, 80 N. C. 396; Lunn v. (stating collective value of stolen State, 44 Tex. 85. coins). MB.— State v. Hood, 51 3 Phelps V. People, 72 N. Y. 334. Me. 363. MASS. — Com. v. Grimes, 4 Green v. State, 21 Tex. App. 64. 76 Mass. (10 Gray) 470, 71 Am. 1 Grant v. State, 55 Ala. 201; Dec. 666; Com. v. Collins, 138 State V. Ziord, 30 La. Ann. (Ft. I) Mass. 483. 867; State v. Stimson, 24 N. J. L. Indictment for concealing mort- (4 Zab.) 9. gaged personalty by mortgagor See, also, infra, §267; supra, describing goods of each class § 236. without statement of value of each A description in an indictment article or quantity and description in these words, "ten five-dollar of mortgage, held to be sufficient bank bills of the value of five dol- in Com. v. Strangford, 112 Mass. lars each," is sufficiently definite. 289. § 267 INDICTMENT MONEY AND COIN. 305 that where several articles, all of one kind, are described, their value may be alleged in the aggregate or col- lectively, and the defendant may be convicted of stealing a part of less value than the whole, if there be anything on the record to attach to the articles on which the con- viction was had a value sufficient to sustain the convic- tion.* Articles of differ erd kinds, e. g., "sundry bank-bills, and sundry United States treasury notes," being thus lumped with a common value, the indictment can not be sustained by proof of stealing only a part of the articles enumerated.* Nor can a conviction for stealing a part of the articles charged be sustained unless to such part sufficient value is assigned or implied.* 4. Money and Coin, § 267. Money must be specifically described. Money is described as so many pieces of the current gold or silver coin of the country, called Foreign coin should be specified,^ but as to our own coin, it has been 2 Com. V. O'Connell, 94 Mass. the defendant may be convicted of (12 Allen) 451; but see Hamblett stealing a less sum than that V State 18 N H 384 charged in the indictment. — Com. ■ In Com. V. O'Connel'l, supra, the Tl °'^°'^'^f V^* ^^^^- ^^^ f '^''^ 451. See, further, supra, § 236. 3 Whart. Grim. Ev., § 126, and see Hope v. Com., 50 Mass. (9 monwealth, amounting together to j^^^j ^34. ^^^ ^ (^^j^jjj^ g^ ^^^ one hundred and fifty dollars, and (12 Allen) 540; Com. v. Lavery, of the value of one hundred and jqi Mass. 207, cited in Whart. fifty dollars." It was said by the Crim. Ev , § 126. court that "it is not perceived that 4 at, A. — Sheppard v. State, 42 the description of bank bills as ^jg,. 531 ILL.— Collins v. People, 'a quantity,' instead of 'divers and 39 m. 233. MASS.— Com. v. Smith, sundry,' constitutes an error. And 1 Mass, 245. N H.— Hamblett v. the statement of the aggregate of state, 18 N. H. 384; Lord v. State, the property stolen, where all the 20 N. H. 404, 51 Am. Dea 231; articles are of one kind, has been gtate v. Goodrich, 46 N. H. 186. sanctioned by the court."- Com. v. jsj y.- Low v. People, 2 Park. Cr. Sawtelle, 65 Mass. (11 Cush.) 142. Rep. 37. TEX.— Meyer v. State, Upon such an indictment, when 4 Tex. App. 121. the articles are all of one class, 1 R. v. Fry, R. & R. 482; Wade I. Crim. Froc. — 20 indictment was for "a quantity of bank notes current within this com- 306 CRIMINAL PROCEDURE. §267 said to be sufficient to aver "of silver and gold coin of the United States ' ' f however, a strong line of opinions is to the effect that the particular denomination or spe- cies of coin must be set forth.' The subject of variance is elsewhere discussed.* "Twenty-five dollars in money/' or a similar desig- nation, is not a sufficiently exact designation.* "Bank-notes" have been already noticed.* "United States gold coin" is equivalent to "gold coin of the United States"; such coin being current by law, both court and jury know, without allegation, that a gold coin of the denomination and value of ten dollars is an eagle.'' Charging the conversion of $19,000 of money, and $19,000 of bank notes, count is bad for uncertainty.* V. state, 35 Tex. Cr. Rep. 173, 32 S. W. 772. See R. v. Warshoner, I Mood. C. C. 466. As to description In forgery, see Kerr's Whart. Crim. Law, § 958. "Silver coin of the value of," etc., is suflacient under statute. See State v. Jackson, 26 W. Va. 250. 2 CAL. — People v. Green, 15 Cal. 513 (aggregate value of coin, only, given). IND. — McKane v. State, II Ind. 195. TEX. — Bravo v. State, 20 Tex. App. 177. W. VA.— Jack- son v. State, 26 W. Va. 250. FED. — United States v. Rigsby, 2 Cr. C. C. 364, Fed. Cas. No. 5895. 3 ARK. — Barton v. State, 29 Ark. 68. CAL.— People v. Ball, 14 Cal. 101, 73 Am. Dec. 631. IND.— Whit- son V. State, 160 Ind. 510, 67 N. E. 265. KAN.— State v. Tilney, 38 Kan. 714, 17 Pac. 606. NEV.— In re Waterman, 29 Nev. 300, 11 L. R. A. (N. S.) 424, 89 Pac. 295. TENN. — State v. Longbottoms, 30 Tenn. (11 Humph.) 39. Denomination of b a n Ic bills should be alleged as well as value. —52 Ind. 283, 21 Am. Rep. 176. Particular kind of money should be specified. — Barton v. State, 29 Ark. 72; State v. Tilney, 38 Kan. 716, 17 Pac. 606. 4 Whart. Crim. Ev., § 122. 5 IND.— Smith v. State, 33 Ind. 159; Whitson v. State, 160 Ind. 510, 67 N. E. 265. KAN.— State v. Segermond, 40 Kan. 107, 10 Am. St. Rep. 169, 19 Pac. 370. LA.— State V. Green, 27 La. Ann. 598. MICH. — Merwin v. People, 26 Mich. 298, 12 Am. Rep. 314; Libby v. People, 29 Mich. 232. TENN.— State v. Longbottoms, 30 Tenn. (li Humph.) 39. N. M.— Territory V. Hale, 13 N. M. 181, 13 Ann. Cas. 551, 81 Pac. 586. TEX. — ^Lavarre V. State, 1 Tex. App. 685; Dukes V. State, 22 Tex. App. 192, 2 S. W. 590. 6 Supra, § 235. 1 Daily v. State, 10 Ind. 536. See Whart. Crim. Ev., § 122. 8 State V. Stimaon, 24 N. J. L. (4 Zab.) 9. §268 INDICTMENT — SHORT CHANGING. 307 Generality of description, however, may be excused by an averment that the precise character and value of the coin or notes are unknown to the grand jury.* § 268. When money is given to change, and change is kept, indictment can not aver stealing change. it should be kept in mind, that if the indictment charges stealing a particular note or piece of coin and the evi- dence is that such note or coin was given to the defendant to change, who refused to return the change, the defend- ant, even under the statutes making such conversion lar- ceny, can not be convicted of stealing the change; for there is a fatal variance between the description in the indictment and the proof.^ But an indictment charging the larceny of the note or coin actually given to the de- fendant may be good.^ 9 Supra, §§ 198, 235 et seq.; State V. McAnulty, 26 Kan. 533, citing Com. V. Grimes, 76 Mass. (10 Gray) 470, 71 Am. Dec. 666. An indictment for larceny from the person of "sundry gold coins, current as money in this common- wealth, of the aggregate value of twenty-nine dollars, but a more particular description of which the jurors can not give, as they have no means of knowledge," and con- taining similar allegations as to bank bills and silver coin, is suffi- ciently specific to warrant a judg- ment upon a general verdict of guilty.— People v. Bogart, 36 Cal. 245; Com. v. Sawtelle, 65 Mass. (11 Gush.) 142; Com. v. Butts, 124 Mass. 449. And so a fortiori as to an aver- ment of "four hundred and fifty dollars In specie coin of the United States, the denomination and de- scription of which Is to the grand jury u n k n o w n." — Chisholm v. State, 45 Ala. 66. Pieces charged to be stolen should be specifically designated where practical. — ^Murphy v. State, 6 Ala. 845; People v. Ball, 14 Cal. 101, 73 Am. Dec. 631; Leftwich v. Com., 20 Gratt. (Va.) 716. "Of the moneys of the said M. N." sufficiently describes own- ership. — R. v. Godfrey, D. & B. 426; Kerr's Whart. Crim. Law, § 1214. iR. V. Jones, 1 Cox C. C. 105; R. V. Wast, D. & B. 109, 7 Cox C. C. 183; R. V. Bird, 12 Cox C. C. 257, and other cases cited supra. See Whart. Crim. Ev., § 123. Not necessary, however, to in- troduce averments In a statute, which do not Individuate an of- fense. — Ex parte Helblng, 66 Cal. 215, 5 Pac. 103. 2 Com. v. Barry, 124 Mass. 325. 308 CRIMINAL PEOOEDUEB. 269 XI. Offenses Created by Statute. § 269. Usually sufficient and necessaky to use woeds OF statute. Where a statute prescribes or implies the form of the indictment, it is usually sufficient to describe the offense in the words of the statute,^ and for this pur- 1 ARK. — Lemon v. State, 19 Ark. 171; State t. Moser, 33 Ark. 140; State V. Snyder, 41 Ark. 227. CAL. — People v. Lewis, 61 Cal. 366; People v. Sheldon, 68 Cal. 634, 9 Pac. 457; People v. Mar- seller, 70 Cal. 98, 11 Pac. 503. COLO.— Cohen v. People, 7 Colo. 274, 3 Pac. 385; Schneider v. Peo- ple, 30 Colo. 493, 71 Pac. 369. CONN.— Whiting v. State, 14 Conn. 487, 36 Am. Dec. 499; State v. Holmes, 28 Conn. 230; State v. Lockbaum, 38 Conn. 400; State V. Cady, 47 Conn. 44; State v. Schweitzer, 57 Conn. 532, 6 L. R. A. 125, 18 Atl. 787; State v. Carpen- ter, 60 Conn. 97, 22 Atl. 497. GA.— Camp V. State, 3 Kelly 419; Las- siter V. State, 67 Ga. 739. ILL.— Allen T. People, 82 111. 610; Cole V. People, 84 111. 216; Ker v. Peo- ple, 110 111. 627, 51 Am. Rep. 706; Thomas v. People, 113 111. 99; Sea- cord V. People, 121 111. 623, 13 N. E. 194; Loehr v. People, 132 111. 504, 24 N. E. 68. IOWA— United States V. Dickey, 1 Morr. 412; State v. Seamons, 1 Greene 418; Buckley V. State, 2 Greene 162; State v. Smith, 46 Iowa 662. KAN.— State V. Armell, 8 Kan. 288; State v. Boverlin, 30 Kan. 611, 2 Pac. 630; State V. Foster, 30 Kan. 365, 2 Pac. 628. KY.— Com. v. Tanner, 68 Ky. (5 Bush) 316; Davis v. State, 76 Ky. (13 Bush) 318. MD.— Bixler V. State, 62 Md. 354. MASS.— Com. V. Barrett, 108 Mass. 302; Com. v. Malloy, 119 Mass. 347; Com. V. Burlington, 136 Mass. 438; Com. V. Brown, 141 Mass. 78, 6 N. E. 377. MICH.— People v. Mur- ray, 57 Mich. 396, 24 N. W. 118; People V. O'Brien, 60 Mich. 8, 26 N. W. 795. MINN.— State v. Com- fort, 22 Minn. 271. MO.— State v. Chumley, 67 Mo. 41; State v. Hay- ward, 83 Mo. 299; State v. Rueker, 93 Mo. 88, 5 S. W. 609; State v. Miller, 93 Mo. 263, 6 S. W. 57. N. H.— State v. Beckman, 57 N. H. 174; State v. Kenester, 59 N. H. 36; State v. Perkins, 63 N. H. 368. N. J. — State V. Hickman, 8 N. J. L. (3 Halst.) 299; Titus v. State, 49 N. J. L. 36, 7 Atl. 621. N. Y.— Peo- ple V. West, 106 N. Y. 293, 60 Am. Rep. 452, 12 N. E. 610; People v. King, 110 N. Y. 418, 6 Am. St. Rep. 389, 1 L. R. A. 293, 18 N. E. 245; People V. Dorthy, 20 App. Div. 308, 13 N. Y. Cr. Rep. 173, 46 N. Y. Supp. 970; People v. Seldner, 62 App. Div. 357, 71 N. Y. Supp. 35; People V. Adams, 85 App. Div. 390, 17 N. Y. Cr. Rep. 443, 83 N. Y. Supp. 481; People v. Corbalis, 86 App. Div. 531, 17 N. Y. Cr. Rep. 469, 83 N. Y. Supp. 782; People v. Burns, 53 Hun 274, 7 N. Y. Cr. Rep. 92, 6 N. Y. Supp. 611; People V. Webster, 17 Misc. 410, 11 N. Y. Cr. Rep. 340, 40 N. Y. Supp. 1135. PA.— Res. V. Tryer, 3 Yeates 451; Com. V. Chapman, 5 Whart. 427, 34 Am. Dec. 565; Williams v. Com., 91 Pa. St. 493. R. I.— State v. Marchant, 15 R. I. 539, 9 Atl. 902. S. C— State v. Williams, 2 Strob. §269 INDICTMENT — STATUTORY OFFENSES. 309 pose it is essential that these words should be used.^ In such case the defendant must be specially brought "within all the material words of the statute ; and nothing can be taken by intendment.' Whether this can be done L. 474; State v. Blease, 1 McMul. 472. TENN.— State v. Ladd, 32 Tenn. (2 Swann) 226; Hall v. State, 43 Tenn. (3 Cold.) 125. TEX. — Linney v. State, 5 Tex. App. 344. UTAH— United States v. Can- non, 4 Utah 422, 7 Pac. 369. VT.— State V. Little, 1 Vt. 331; State v. Cocke, 38 Vt. 437; State v. Pratt, 54 Vt. 484. VA.— Com. v. Hamp- ton, 3 Gratt. 590; Helfrick v. Com., 29 Gratt. 844. W. VA.— State v. RifEe, 10 W. Va. 794. WIS.— Bonne- ville V. State, 53 Wis. 680, 11 N. W. 427. FED. — United States v. Reese, 92 U. S. 214, 23 L. Ed. 563; United States V. Britton, 107 U. S. 655, 27 L. Ed. 520, 2 Sup. Ct. 512; United States v. North-way, 120 U. S. 327, 30 L. Ed. 664, 7 Sup. Ct. 580; United States v. Jacoby, 12 Blatchf. C. C. 491, Fed. Cas. No. 15462; United States V. Batchelder, 2 Gall. C. C. 15, Fed. Cas. No. 14490. Exception where words do not give notice of what is charged. — Schneider v. People, 30 Colo. 493, 71 Pac. 369. 2 1 Hale 517, 526, 535; Fost. 423, 424. ALA.— State v. Click, 2 Ala. 26; Lodono v. State, 25 Ala. 64; Mason v. State, 42 Ala. 534. CAL. — People V. Martin, 32 Cal. 91; Peo- ple V. Burk, 34 Cal. 661; People V. Murray, 67 Cal. 103, 7 Pac. 178. GA.— State v. Calvin, Charlt. 151; Cook V. State, 11 Ga. 53, 56 Am. Dec. 410; Sharp v. State, 17 Ga. 290; Jackson v. State, 76 Ga. 551. KY.— nCom. v. Turner, 71 Ky. (8 Bush) 1. LA.— State v. Pratt, 10 La. Ann. 191. ME. — State v. Gur- ney, 37 Me. 149. MASS.— Com. v. Fenno, 125 Mass. 387. MO.— State v. Comfort, 5 Mo. 357; State v. Shiflet, 20 Mo. 415, 64 Am. Dec, 190; State v. Vaughan, 26 Mo. 29; State v. Davis, 70 Mo. 460; State V. Buster, 90 Mo. 514, 2 S. W. 834. NEB. — Denton v. State, 21 Neb. 448, 32 N. W. 222. N. H.— State v. Rust, 35 N. H. 438. N. J.— State v. Gibbons, 4 N. J. L. (1 South.) 51. N. Y. — People v. Allen, 5 Den. 76; Phelps v. People, 72 N. Y. 334. N. C. — State v. Ormond, 18 N. C. (1 Dev. & B.) 119; State v. Stan- ton, 23 N. C. (1 Ired.) 424. S. C— State V. Schuler, 19 S. C. 140. TEX. — Kinney v. State, 21 Tex. App. 348, 17 S. W. 423. VT.— State V. Hoover, 58 Vt. 496, 4 Atl. 226. VA.— Com. V. Hampton, 3 Gratt. 590; Ho-well v. Com., 5 Gratt. 664. FED.— United States v. Pond, 2 Curt. C. C. 265, Fed. Cas. No. 16067; United States v. Lancaster, 2 McL. ■ C. C. 431, Fed. Cas. No. 15556; United States v. Andrews, 2 Paine C. C. 451, Fed. Cas. No. 14455. ENG.— R. v. Ryan, 7 Car. & P. 854, 2 Moody 15, 32 Eng. C. L. 907. 3 ALA. — State v. Duncan, 9 Port. 260. ILL.— Chambers v. People, 5 111. (4 Scam.) 351. IND.— State V. Noel, 5 Blackf. (Ind.) 548. MISS.— Ike V. State, 23 Miss. 525. MO. — State v. Mitchell, 6 Mo. 147; State V. Helm, 6 Mo. 263. NEV. — State V. On Gee How, 15 Nev. 184. S. C. — State V. O'Banson, 1 Bail 144; State v. Foster, 3 McC. 442; 310 CRIMINAL PROCEDURE. § 270 by a mere transcript of the words of the statute depends in part upon the structure of the statute, in part upon the rules of pleading adopted by statute or otherwise, in the particular jurisdiction. On the general principles of common law pleading, it may be said that it is suffi- cient to frame the indictment in the words of the statute, in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is to be tried for really is. But in no other case is it sufficient to follow the words of the statute. It is no more allowable, under a statutory charge, to put the defendant upon trial without specification of the offense, than it would be under a common law charge. Exceptions to rule: And besides this general principle, there are the following settled exceptions to the rule before us: § 270. CoNCLTTsioN OF LAW NOT ENOUGH. 1. Statutes frequently make indictable common law offenses, describ- ing them in short by their technical name, e. g., "bur- glary," "arson." No one would venture to say that in such cases indictments would be good charging the de- fendants with committing "burglary" or " arson. "^ state V. La Creux, 1 McM. 488. Simmons, 73 N. C. 269. TEX. — TEX. — Jones V. State, 12 Tex. App. State v. Mesohac, 30 Tex. 518; 424. VA. — Bailey's Case, 78 Va. 19. Hoskey v. State, 9 Tex. App. 202; FED. — United States v. Lancaster, Marshall v. State, 13 Tex. App. 2 McL. C. C. 431, Fed. Cas. No. 492. VT.— State v. Higglns, 53 Vt. 15556. 191. WYO. — McCarthy v. Terrl- Compare: Com. v. Pogerty, 74 tory, 1 Wyo. 311. FED. — United Mass. (8 Gray) 489, 69 Am. Dec. States v. Pond, 2 Curt. C. C. 265; 264; Frazer v. People, 54 Barb. Fed. Cas. No. 16067; United States (N. Y.) 306. V. Staton, 2 Flip. 319, Fed. Cas. 1 Supra, §196, ALA.— Sikes v. No. 16382; United States v. State, 66 Ala. 77; Grattan v. State, Crosby, 1 Hugh. C. C. 448, Fed. 71 Ala. 344. CAL.— People v. Mar- Cas. No. 14893. ENG. — ^R. v. Pow- tin, 52 Cal. 201. IND.— Bates v. ner, 12 Cox C. C. 235. State, 31 Ind, 72; State v. Windell, In United States v. Simmons, 60 Ind. 300. LA.— State v. Flint, 96 U. S. 360, 24 L. Ed. 819, it was 33 La. Ann. 1288. N. C. — State V. held that where a defendant is not §270 INDICTMENT STATUTORY OFFENSES. 311 2. A statute may be one of a system of statutes, from which, as a whole, a description of the offense must be picked out. Thus, a statute makes it indictable to obtain negotiable paper by false pretenses. But what are ' ' false pretenses"? To learn this we have to go to another statute, and this statute, it may be, refers to another statute, giving the definition of terms. No one of these statutes gives an adequate description of the offense, nor can such description be taken from them in a body. It is inferred from them, not extracted from them. The same may be said of statutes making indictable the use of slanderous words. These words must be set forth.^ 5. A statute on creating a new offense describes it by a popular name. It is made indictable, for instance, to obtain goods by "falsely personating" another. But no one would maintain that it is enough to charge the de- fendant with ' ' falsely personating another. ' ' So far from this being the case, the indictment would not be good charged with using a still, boiler, or other vessel himself, but with causing and procuring some per- son to use them, the name of such person must be given In the In- dictment. It was further ruled that an Indictment for distilling vinegar illegally must set out that the apparatus was used for that purpose, and in the premises de- scribed, and the vinegar manufac- tured at the time the apparatus described was being used; and fur- ther, that the averment that defen- dant caused and procured the apparatus to be used for distilling implies with sufficient certainty that it was so used; it is not essen- tial that its actual use shall be set out. It was held, also, that it is not necessary, in an indictment for defrauding the revenue, to set out the particular means of the iraud. An Indictment under the Massa- chusetts statute, which charges the defendant with adulterating "a cer- tain substance intended for food, to wit, one pound of confection- ery," is not sufficiently descriptive of the substance alleged to have been adulterated. — Com. v. Chase, 125 Mass. 202. Taking up animals on land other than his own land for the purpose of taking advantage of the provi- sions of the statute, being made a felony by statute (Cal. Stats., 1873-4, p. 50), an Indictment charg- ing the offense must state the par- ticular provision which the person taking up the animals Intended to violate. — People v. Martin, 52 Cal. 201. 2 Lagrone v. State, 12 Tex. App. 436; supra, §251. As to libel.— Hartford v. State, 96 Ind. 461, 49 Am. Rep. 185. 312 CRIMINAL PEOCEDUEE. § 270 unless it stated the Mnd of personation, and the person on whom the personation took effect.^ An act of Con- gress, to take another illustration, makes it indictable to "make a revolt," but under this act it has been held necessary to specify what the revolt is.* "Fraud" in elections, in a Pennsylvania statute, is made indictable; but the indictment must set out what the fraud is.^ It is not enough to say that the defendant "attempted" an offense, though this is all the statute says; the particu- lars of the attempt must be given.® "Not a qualified voter, " in a statute, must be expanded in the indictment by showing in what the disqualification consists.^ And "the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defense, and plead the judgment as a bar to any subsequent prose- cution against him. An indictment not so framed is defective, although it may follow the language of the statute. ' ' * 4. The terms of a statute may he more broad than its intent, in which case the indictment must so differentiate the offense (though this may bring it below the statutory 3 See United States v. Goggin, Jackson, 7 Ind. 270. IOWA — State 9 Biss. C. C. 269, 1 Fed. 49. v. Shaw, 35 Iowa 575. MO.— State 4 United States v. Almeida, 6 v. Pugh, 15 Mo. 509. N. Y.— People Leg. Int. No. 5, 2 Whart. Prec. ^ wilber, 1 Park. Or. Rep. 19. 1061, Fed. Gas. No. 14433. j^ C.— State v. Langford, 10 N. C. 5 Com. V. Miller, 2 Pars. (Pa.) (3 Hawks) 381. TBNN.— Pearce V. State, 33 Tenn. (1 Sneed) 63. 197. 6 Com. V. Clark, 6 Gratt. (Va.) 675; United States v. Warner, 26 FED.-United States v. Crosby, Fed. 616; R. v. Powner, 12 Cox ^ ^"Sli. C. C. 448, Fed. Cas. No. C. C. 235; R. v. Marsh, 1 Den. 14893. C. C. 505; Kerr's Whart. Crim. As to general rule, see State v. Law, § 231, where other cases are McLoon, 78 Me. 420, 6 Atl. 601. given. 8 Field, J., United States v. 7 ALA.— Anthony v. State, 29 Hess, 124 U. S. 483, 488, 31 L. Ed. Ala. 27; Banner v. State, 54 Ala. 516, 8 Sup. Ct. 571, citing United 127, 25 Am. Rep. 662. IND.— State States v. Simmons, 96 U. S. 360, V. Dole, 3 Blackf. 298; State v. 24 L. Ed. 819; United States v. Brougher, 3 Blackf. 307; State v. Carll, 105 U. S. 611, 26 L. Ed. 1135. § § 271-273 INDICTMENT VABIANCE, LIMITATIONS. 313 description) as may effectuate the intention of the legis- lature.* 5. An offense, when against an individual, must be specified as committed on such an individual, when known, though no such condition is expressed in the stat- ute; though it is otherwise with nuisances, and offenses against the public.^" § 271. Vaeiance, if indictment proposes to but fails TO set fobth statutoey wobds. An indictment, when professing to recite a statute, is bad if the statute is not set forth correctly.^ It is otherwise when the statute is counted on (or appealed to by the conclusion against the form of the statute, etc.), in which case, as is hereafter noticed, terms convertible with those in the statute may be used.^ § 272. SpEciAii LIMITATIONS TO BE GIVEN. Where a gen- eral word is used, and afterwards more special terms, defining an offense, an indictment charging the offense must use the most special terms ; and if the general word is used, though it would embrace the special term, it is inadequate.^ § 273. Pbivate statute must be given in full. An indictment on a private statute must set out the statute 9 MB. — state V. TurnbuU, 78 Me. v. State, 3 McC. (S. C.) 383; 392, 6 Atl. 1. MASS.— Com. v. United States v. Goodwin, 20 Fed. Slack, 36 Mass. (19 Pick.) 304; 237. Com. V. Collins, 56 Mass. (2 Gush.) p^^ ^ ^^^^ ^.^^^^^^ ^.^^^ ^^^ 556. MO.-State v. Griffin. 89 Mo ^ ^ ^^^j ^ ^ ^^3 49, 1 S. W. 87. TEX.— Longenotti » „„„ „t, _. ^ • V. State, 22 Tex. App. 61. 2 S. W. ^ See infra. § 286; Whart. Crim. 620. FED.-United States v. Pond, ^v., §§ 91 et seq.; Hall v. State, 3 2 Curt. C. C. 265, 268, Fed. Cas. Kelly (Ga.) 18; Com. v. Unknown, No. 16067 '^2 Mass. (6 Gray) 489; State v. 10 Com. V. Ashley. 68 Mass. (2 Petty. Harp. (S. C.) 59; Butler v. Gray) 357; Kerr's Whart. Crim. State, 3 McC. (S. C.) 383. Law, §§1676 et seq. i Archbold C. P. 93; State v. 1 Infra. §273; Com. v. Burke. 81 Plunkett, 2 Stew. (Ala.) 11; State Mass. (15 Gray) 408; Com. v. v. Raiford, 7 Port. (Ala.) 101; Washburn, 128 Mass. 421; Butler State v. Bryant, 58 N. H. 59. 314 CRIMINAL PEOCEDURB. §§ 274-276 in fuU.^ As has been seen, it is otherwise with a public statute.* § 274. Offense must be aveeeed to be within limita- tion. The indictment must show what offense has been committed, and what penalty incurred by positive aver- ment. It is not sujfficient that they appear by inference.^ § 275. Section ob designation of statute need not be STATED. It is not necessary to indicate the particular section or even the particular statute, upon which the case rests. It is only necessary to set out in the indict- ment such facts as bring the case within the provisions of some statute which was in force when the act was done, and also when the indictment was found.^ § 276. WhEEE STATUTE REQUIRES TWO DEFENDANTS ONE IS NOT SUFFICIENT. Where a statute creates an offense, which from its nature requires the participation of more than one person to constitute it, a single individual can not be charged with its commission unless in connection with persons unknown.^ Thus, an indictment against one individual imcoimected with others, based upon that section of the Vermont statute relative to offenses against public policy which inflicts a penalty upon each indi- iSid. 356; 2 Hale 172; 2 Hawk., (11 Gray) 462; United States v. ch. 25, § 103; Bac. Ab. Indict., Rhodes, 1 Abb. U. S. 28, Fed. Cas. p. 2; Gosben v. Sears, 7 Conn. 92; No. 16151; R. v. Sutton, 4 Moore & State V. Cobb, 18 N. C. (1 Dev. & S. 542. B.) 115. 1 State t. Briley, 8 Port. (Ala.) By statute in some states prl- 472; Graves v. State, 63 Ala. 134; vate statutes may be cited by Com. v. Walters, 36 Ky. (6 Dana) title. See State v. Loomis, 27 291; Hampton's Case, 3 Gratt. Minn. 521, 8 N. W. 758. (Va.) 590; Com. v. Glass, 33 Gratt. These statutes, however, do not (Va.) 827. apply to cases, such as charters of i Com. v. Griffin, 38 Miss. (21 banks, which it was not necessary Pick.) 523, 525; Com. v. Wood, 77 to plead at common law. Mass. (11 Gray) 85; Com. v. 2 Com. V. Colton, 77 Mass. (11 Thompson, 108 Mass. 461. Gray) 1; Com. v. Hoye, 77 Mass. i See, infra, § 355. §§277,278 INDICTMENT — PLURAL STATUTES. 315 vidual of any company of players or other persons who shall exhibit any tragedies, etc., is insufficient.^ § 277. When statute states object in pltjeal, it may BE PLEADED IN siNGULAE. When, however, the object (as distinguished from the actor) of an offense is stated in the statute in the plural, then, if this be done as a de- scription of a class, the indictment may be in the singu- lar, designating any one of the class. Thus, in a statute prohibiting the stealing of notes, an indictment for steal- ing a note was sustained;^ on a statute prohibiting the living in houses of ill-fame, an indictment for living in a house of ill-fame is good.^ § 278. DlSJTTNCTIVE STATUTORY STATEMENTS TO BE AVERRED CONJUNCTIVELY. The general rule of law is that where the statute specifies several things disjunctively as constituting an offense, an indictment charging a com- mission of the offense which avers the several things in the disjunctive, is bad.^ But though the language of the 2 state V. Fox, 15 Vt. 22. dictment is bad, notwithstanding 1 Com. V. Messenger, 1 Binn. it is made in the language of the (Pa.) 273, 2 Am. Dec. 441; Has- statute. See: ALA.— Banner v. sell's Case, 1 Leach C. L. 1, 2 State, 54 Ala. 127, 25 Am. Rep. East Cr. L. 598. See State v. Nich- 662; Horton v. State, 60 Ala. 72 ols, 83 Ind. 228; 43 Am. Rep. 66 (in ("barn or stable," or "barn, house, statutes relating to houses of ill- or stable"). GA. — Henderson v. fame, the plural includes the sin- State, 113 Ga. 1148, 39 S. E. 446 gular) ; Jessup v. State, 14 Ind. (indictment alleging accused cut App. 257, 42 N. E. 950 (in statutes and stabbed A. with a "knife or relating to prostitutes, the plural other like instrument"). IOWA — includes the singular). State v. Daily, 113 Iowa 362, 85 "Letter of law" not inflexibly N. W. 629. KAN.— State v. Seeger, followed, even in penal statutes. — 65 Kan. 711, 70 Pac. 599. LA. — Com. V. Messenger, 1 Binn. (Pa.) State v. Barnett, 138 La. 693, 70 So. 273, 2 Am. Dec. 441; Stewart v. 614 (must be charged conjunc- Keemle, 4 Serg. & R. (Pa.) 72; tively). N. J.— State v. Hatfield, Com. V. Bird, 4 Serg. & R. (Pa.) 93 Atl. 677 ("physiognomy, palm- 141. istry, or like crafty science"). 2 State V. Nichols, 83 Ind. 228, N. Y.— People v. Schatz, 50 App. 43 Am. Rep. 66. See Hall v. State, Div. 544, 15 N. Y. Cr. Rep. 38, 64 3 Kelly (Ga.) 18. N. Y. Supp. 127 ("sell or give 1 Disjunctive allegation in in- away" liquor on Sunday). N. D.— 316 CRIMINAL PEOCEDUEE. §278 statute be disjunctive, e. g., burned or caused to be burned, and the indictment charge the offense in the conjunctive, e. g., burned and caused to be burned, the allegation, as has been noticed, is sufificient.^ The same rule applies where the intent is averred disjunctively. In either case state V. Lonne, 15 N. D. 275, 107 N. W. 524 ("fraudulent appropri- ating property or secreting," etc.). TEX.— Fry v. State, 36 Tex. Cr. Rep. 582, 38 S. W. 168 ("gaming table or bank for purpose of gam- ing") ; Venturlo v. State, 37 Tex. Cr. Rep. 653, 40 S. W. 974 ("fish or terrapin, or both fish and ter- rapin, with a drag sein or set net"); Reuter v. State, 67 S. W. 505 ("hogs, sheep or goats") ; Can- terbury V. State, 44 S. W. 522; Hunter v. State, 166 S. W. 164 (carrying a pistol "on or about his person"). Alleging robbery in aiternative should the taking of one of the things alleged not amount to rob- bery, the indictment Is insuffi- cient.— Wesley V. State, 61 Ala. 282. Alleging the taking of property from the "person or possession" is bad.— Hill v. State, 145 Ala. 58, 40 So. 654; Slover v. Territory, 5 Okla. 506, 49 Pac. 1009. "Bet at a game played with cards, or some devise or substitute for cards, held good. — Ford v. State, 123 Ala. 81, 26 So. 503. Charging in alternative acts pro- hibited and acts not prohibited, is bad. — Watson v. State, 140 Ala. 134, 37 So. 225. "Or otherwise" In statute pro- hibiting the doing of an act in specified ways, the indictment for acts committed "otherwise," must so allege. — Neal v. State, 53 Ala. 465; Daniel v. State, 61 Ala. 4. Under statute making it unlaw- ful to "sell, give away, or others wise dispose of intoxicating liq- uors, an indictment charging de- fendant "did sell, give away, or otherwise dispose of," held good. — McClellan v. State, 118 Ala. 122, 23 So. 732. Use of "or" and "and" In indict- ments is thus regulated: In nega- tive averments or may be used; in affirmative averments and must be used where the terms are syn- onymous. — People V. Ellis, 185 111. App. 417. See people v. Jackson, 181 111. App. 713. — "Or" meaning "to-wit" it may properly be used in an indict- ment. — People v. Jackson, 181 111. App. 713. — Failure to perform a duty being the gist of the offense charged, indictment may use "or" in following the language of the statute. — Byrd v. State, 72 Tex. Cr. Rep. 242, 162 S. W. 360. Contra: State v. Lark, 64 S. C. 350, 42 S. E. 175 (charging murder by striking on the head "with a stone or iron hammer"). Charging in alternative is espe- cially provided for by statute in some states. See Smith v. State, 142 Ala. 14, 39 So. 329; Dudley v. State (Ala.), 64 So. 309. 2Supra, §207; infra, § 300. COLO.— Rowe v. People, 26 Colo. 542, 59 Pac. 57. IND.— Marshall V. State, 123 Ind. 128, 23 N. E. 1141; Douglass v. State, 18 Ind. App. 289, 48 N. E. 9. MO.— State §§279,280 INDICTMENT — DEFECTS NOT CUBED. 317 the superfluous term may be rejected as surplusage.* And it is held that when the words of the statute are synonymous, it may not be error to charge them alter- natively.* § 279. At common law defects in statutoky indict- ments AEE NOT CUKED BY VEKDicT. Defects in the descrip- tion of a statutory offense will not at common law be aided by verdict,^ nor will the conclusion, contra formam statuti, cure.^ But if the indictment describe the offense in the words of the statute, in England, after verdict, by the operation of the 7 Geo. 4, c. 64,* it will be suffi- cient in all offenses created or subjected to any greater degree of punishment by any statute.* But as a rule, at common law the features of the statute must be enumer- ated by the indictment with rigid particularity. § 280. Statutes creating an offense akb to be closely FOLLOWED'. Where an act not before subject to punishment is declared penal, and a mode is pointed out in which it is to be prosecuted, that mode must be strictly pur- sued.^ V. Flynn, 258 Mo. 211, 167 S. W. heintz v. State, 45 Tex. Cr. Rep. 516; State v. Curtis, 185 Mo. App. 117, 74 S. W. 310 ("a liquor dealer 594, 172 S. W. 619. ORE. — State or keeper of a bar room" Is not V. Feister, 32 Ore. 254, 50 Pac. bad; "dealer" and "keeper" are 561. S. D. — ^State v. Hall, 14 S. D. synonymous terms) ; supra, § 206. 161, 84 N. W. 766. — TEX. — Day v. i See Lee v. Clarke, 2 East 333. State, 14 Tex. App, 26; Hammell 2 2 Hale 170; and see R. v. V. SUte, 14 Tex. App, 326; Smith Jukes, 8 T. R. 536, Com. Dig. V. State, 36 Tex. Cr. Rep. 442, 37 Inform. D. 3; Stevens v. State, 18 S. W. 743. FED. — United States Fla. 903. V. Armstrong, 5 Phila. Rep. 273, 3 See, supra, § 131. Fed. Cas. No. 14468; Stockslager v. 4 R. v. Warshoner, I Mood. C. C. United States, 54 C. C. A. 46, 116 466. Fed. 590. i MASS. — Com. v. Howes, 32 3 Supra, §§ 206-208. Mass. (15 Pick.) 231. MO.— Jour- 4 Russell V. State, 71 Ala. 348; ney v. State, 1 Mo. 304. PA.— State V. Ellis, 4 Mo. 474; State v. McElhinney v. Com., 22 Pa. St. Flint, 62 Mo. 393; State v. Snyder, 365. S. C— State v. Helgen, 1 182 Mo. 462, 82 S. W. 12; Lancas- Spears (S. C.) 310. TENN.— State ter V. State, 43 Tex. 519; Hof- v. Maze, 25 Tenn. (6 Humph.) 17. 318 CRIMINAL PEOCEDUEE, . § 281 Where an offense is created by statute, or the statute declares a common law offense committed under peculiar circumstances, not necessarily included in the original offense, punishable in a different manner from what it would be without such circumstances ; or where the nature of the common law offense is changed by statute from a lower to a higher grade, as where a misdemeanor is changed into a felony; the indictment must be drawn with reference to the provisions of the statute, although the precise words of the statute need not be employed,* and conclude contra f ormam statuti f but where the stat- ute is only declaratory of what was previously an offense at common law, without adding to or altering the pun- ishment, the indictment need not so conclude.* § 281. When common-law offense is made penal by TITLE, details OF OFFENSE MUST BE GIVEN. As WC haVO already noticed, where a statute refers to a common law offense by its technical name, and proceeds to impose a penalty on its commission, it is insufficient to charge the defendant with the commission of the offense in the statutory terms alone.^ The cases are familiar where, notwithstanding the existence of statutes assigning pun- ishments to "murder," "arson," "burglary," etc., by name, with no further definition, it has. been held nec- VA. — Com. V. Turnpike, 2 Va. Cas. are subject to the Incidents of the 361. ENG. — Attorney-General v. class into which they are Intro- Radloff.lO Bxch. 84. duced, without any express provl- 2 Gouglemann v. People, 3 Park, sion of the statute to that ef- Cr. Rep. (N. Y.) 20. feet"); State v. Loftin, 19 N. C. 3 See, infra, § 330. (2 Dev. & B.) 31. .4 State V. Corwin, 4 Mo. 609; i Supra, §270. ALA. — State v. People V. Enoch, 13 Wend. (N. Y.) Absence, 4 Port. 397; State v. 159, 27 Am. Dec. 197; People v. Stedman, 7 Port. 495. IND. — Berberrich, 11 How. Pr. (N. Y.) Bates v. State, 31 Ind. 72. LA.— 338, sub nom. People v. Toynbee, See State v. Philbin, 38 La. Ann. 20 Barb. (N. Y.) 213, 2 Park. Cr. 964. MD. — Davis v. State, 39 Md. Rep. 358 (saying of People v. 355. TEX.— State v. Meschac, 30 Enoch, supra, that "there could Tex. 518; Wltte v. State, 21 Tex. not lie a stronger case to illustrate App. 88, 17 S. W. 723. ENG. — the rule that newly-created crimes Erie's Case, 2 Lew. C. 0. 133. 5 282 INDICTMENT CUMULATIVE STATUTES. 319 essary for the pleader to define the offenses by stating the common law ingredients necessary to its consum- mation.^ § 282. When statute is cumulative, common law mat BE PURSUED. Where both a right and a remedy are given by statute, that remedy alone can be pursued;^ but gen- erally where a statute gives a new remedy, either sum- mary or otherwise, for an existing right, the remedy at coicQmon law still continues open.^ 2 See, supra, §§196, 270; Com. V. Stout, 46 Ky. (7 B. Monr.) 247. When a statute makes official extortions indictable, the Indict- ment must give the facts of the extortion. — State v. Perham, 4 Ore. 188. Where a statute makes another crime one of its constituents In defining a crime, this second crime must be specifically averred; e. g., where murder with intent to com- mit rape is defined as murder in the first degree. — Titus v. State, 49 N. J. L. 36, 7 AO. 621. 1 People V. Craycroft, 2 Cal. 243, 56 Am. Dec 331; State v. South- ern R. Co., 145 N. C. 539, 59 S. B. 585. 2 Kerr's W h a r t Crim. Law, §§ 32-38. CAL.-^People v. Cray- croft, 2 Cal. 243, 56 Am. Dec. 331. GA. — Southern R. Co. v. Moore, 133 Ga. 810, 26 L. R. A. (N. S.) 851, 67 S. B. 87. IOWA — State v. Moffett, 1 Greene 247. MASS.— Jennings v. Com., 34 Mass. (17 Pick.) 80; Com. v. Rumford Works, 82 Mass. (16 Gray) 231. S. C— State V. Thompson, 2 Strobh. 12, 47 Am. Dec. 588. TENN.— Simp- son V. State, 18 Tenn. (10 Yerg.) 525; State v. Rutledge, 27 Tenn. (8 Humph.) 32. VA. — Pitman v. Com., 2 Rob. 800. FBD.— United States V. Halberstadt, Gilp. 262, Fed. Cas. No. 15276. ENG.— R. v. Jackson, Cowp. 297, 98 Eng. Rep. 1095; E, V. Wigg, 2 Ld. Raym. 1163, 92 Eng. Rep. 269. As to when offense is to be re- garded as statutory, see, infra, §331. In Pennsylvania, as it has been noticed, it is required by act of assembly, that every act must be followed strictly, and where a statutory penalty is imposed, the common law remedy is forever ab- rogated. — ^Act 21st March, 1806, §13; 4 Smith's Laws 3,S2; Res- publica V. Tryer, 3 ^eates (Pa.) 451; Brown v. Com., 3 Serg. & R. (Pa.) 273; Updegraph v. Com., 6 Serg. & R. (Pa.) 5; Evans v. Com., 13 Serg. & R. (Pa.) 426; Wake v. Lightner, 1 Rawle (Pa.) 290; Fromberger v. Greiner, 5 Whart. (Pa.) 357. See Kerr's Whart. Crim. Law, §§32-K8. Where a magistrate is guilty of extortion, it has accordingly been held, the common law remedy, by indictment, is abrogated by the act of assembly giving the injured party, in such case, a qui tam ac- tion for the penalty. — Elvans v. Com., 13 Serg. & R. (Pa.) 246. Courts have shown great un'- willingness to extinguish the com- 320 criminal procedure. §§ 283-285 § 283. When statute assigns no penalty, punishment IS AT COMMON LAW. On the other hand, as has been no- ticed,^ where the statute both creates the offense and prescribes the penalty, the statute must be exclusively- followed, and no common law penalty can be imposed. But where the statute creates the offense, but assigns no penalty, then the punishment must be by common law.^ §284. Exhaustive statute absoebs common law. Wherever a general statute, purporting to be exhaustive, is passed on a particular topic, it absorbs and vacates, on that topic, the common law.* § 285. Statutory technical averments to be intro- duced. Whenever a statute attaches to an offense cer- tain technical predicates, these predicates must be used in the indictment.* Thus, in an indictment on the statute which makes it high treason to clip, round, or file any of the coin of the realm, ' ' for wicked lucre or gain sake, ' ' it was necessary to charge the offense to have been com- mitted for the sake of wicked lucre or gain,^ othermse it would be bad. In another case, an indictment on that part of the Black Act (now repealed) which made it felony, "wilfully and maliciously" to shoot at any per- son in a dwelling-house or other place, was ruled bad, because it charged the offense to have been done "unlaw- mon law remedy in many cases that Interest to the care of a board where a statutory penalty is ere- of health, with plenary powers to ated. Thus, nuisances to naviga- abate or Indict. — Com. v. Van- ble rivers are still indictable at sickle, 1 Brightly (Pa.) 69. See common law, though the Act of Whart. Grim, iiaw, 9th ed., §§25-6. 23d March, 1803, points out a pe- i Supra, § 230. culiar procedure by which the ob- 2 R. v. Robinson, 2 Burr. 799. struction is to be abated; Com. v. l Com. v. Dennis, 105 Mass. 162, Church, 1 Barr (Pa.) 107; and a Kerr's Whart. Grim. Law, §§ 42 common law indictment is pre- et seq. served against an interference i As to particular averments, with the health of the city of see, infra, §§ 306-318. See State Philadelphia, though the legisla- v. Dodge, 78 Me. 439, 6 Atl. 875. ture has particularly committed 2 1 Hale 220. ^- § 286 INDICTMENT — TECHNICAL AVERMENTS. 321 fully and maliciously," omitting the word "wilfully";' some of the judges thought that "maliciously" included "wilfully," but the greater number held, that as wil- fully and maliciously were both mentioned in the stat- ute, as descriptive of the offense, both must be stated in the indictment. In Pennsylvania, an indictment for arson, charging that the defendant did "feloniously, unlawfully, and ma- liciously set fire," etc., was held to be suflScient without the word "wilfully," though "wilfully" was included in the description of the offense given in the act constitut- ing it.* In New Hampshire and North Carolina, the contrary view has been taken.^ In England, under Stat. 7 and 8 Geo. IV, c. 33, § 2, an indictment for feloniously, voluntarily, and maliciously setting fire to a barn, was holden bad, because the words of the statute are "unlawfully and maliciously."® § 286. But equivalent tekms may be given. It must be remembered, in qualification of what has been heretofore stated, that as to the substance, as distin- guished from the technical incidents of an offense, it is the wrongful act that the statute forbids, and that the words used by the statute in describing the act may not be the only words sufficient for this purpose. A statute 3 R. V. Davis, 1 Leach 493; State v. Massey, 97 N. C. 465, 2 S. E. V. Parker, 81 N. C. 548. 445; State v. Morgan, 98 N. C. 641, See, however, State v. Thome, ^ S. E. 927. 81 N. C. 555; infra, §286. And "^^ ^- burner, 1 Mood. C. C. see, also, Davis v. State, 4 Tex. 239. Where an indictment charged in App. 45b. Pj^g count that the defendant did 4 Chapman v. Com., 5 Whart. i,reak to get out, and in another (Pa.) 427, 34 Am. Dec. 565, see that he did break and get out, State V. Pennington, 40 Tenn. (3 this was ruled insufficient, because Head) 119. the words of the statute are 5 State V. Abbott, 31 N. H. 434; "break out."— R. v. Compton, 7 State V. Grove, 34 N. H. 510; State Car. & P. 139, 32 Eng. C. L. 540. I. Crim. Proc. — 21 322 , CRIMINAL PEOCEDUBB. § 286 may include in sucli description cumulative terms of ag- gravation for which substitutes may be found without departing from the sense of the statutory definition ; or, as in the case of the Pennsylvania and cognate statutes dividing murder into two degrees, the terms used to indi- cate the differentia of the offense may be regarded as so tar equivalents of the common law description that the common law description may be held to be proper, and the introduction of the statutory terms unnecessary.^ Or, another word may be held to be so entirely converti- ble with one in the statute that it may be substituted without variance. In such case a deviation from the stat- utory terms may be sustained. We have already seen that these words, when they state a conclusion of law, are not sufficient, but that the unlawful act must be further de- scribed. We have further to add that these words, when they describe the substance, are not necessarily exclu- sive. Hence, where a word not in the statute is substituted in the indictment for one that is, and the word thus sub- stituted is equivalent to the word used in the statute, or is of more extensive signification than it, and includes it, the indictment may be sufficient.^ Thus, if the word "know- ingly" be in the statute and the word "advisedly" be sub- stituted for it in the indictment, the indictment may be 1 See Kerr's Whart. Crim. Law, v. Thome, 81 N. C. 558. WIS. — § 519. State v. Welch, 37 Wis. 196. E^D. 2 CAL.— People v. Schmidt, 63 — United States v. Nunnemacher, Cal. 28. ILL. — McCutcheon v. 7 Blss. C. C. 129, Fed. Gas. No. State, 69 111. 601. IND.— Williams 15903; Dewee's Case, Chase's Dec. V. State, 64 Ind. 553, 31 Am. Rep. B31, Fed. Gas. No. 4570. 135; Schmidt v. State, 78 Ind. 41. "Wilfully, maliciously, feloni- lOWA — State v. Shaw, 35 Iowa ously and premeditatediy" an 575. LA. — State v. George, 34 La. equivalent to "malice afore- Ann. 261. MISS.— Roberts v. State, thought."— People v. Vance, 21 Cal. 55 Miss. 414. MO.— State v. Wat- 400. son, 65 Mo. 115. N. Y.— TuUy v. "With malice and premedita- People, 67 N. Y. 15; Eckhardt v. tlon," equivalent to "malice afore- People, 83 N. Y. 452. N. C— State thought."— State v. CurUs, 70 Mo. V. Lawrence, 81 N. 0. 521; State 598. § 287 INDICTMENT TERM OF CLASS, WHEN. 323 sufficient.^ In further illustration of this view it may be mentioned that "excite, move, and procure" are held con- vertible with "command, hire, and counsel" as used in the statute,* and "without lawful authority and excuse" with "without lawful excuse."^ But, as a rule, it is not pru- dent to substitute other terms for those in the statute. § 287. Where a statute besceibes a class op animals- BY a general teem, IT IS ENOUGH TO USE THIS TEEM FOB THE WHOLE CLASS: OTHERWISE NOT. We havc elscwhere seen that where a statute uses a single general term, this term is to be regarded as comprehending the several species belonging to the genus; but that if it specifies each species, then the indictment must designate spe- cifically.^ Where an indictment on the repealed statutes 15 Greo. 2, c. 34, and 14 Geo. 2, c. 6, which made it felony, without benefit of clergy, to steal any cow, ox, heifer, etc., charged the defendant with stealing a cow, and in evidence it was proved to be a heifer, this was deter- mined to be a fatal variance; for the statute having mentioned both cow and heifer, it was presumed that the words were not considered by the legislature as synony- mous.^ It is otherwise when "cow" is used as a nomen generalis simum.* A"ewe"*or" lamb ' ' ^ may be included under the general term "sheep," when such general term 3R. V. Fuller, 1 Bos. & P. 180, Camp. 212; R. t. Cooke, 2 East P. 126 Eng. Rep. 847. C. 616, 1 Leach 123. 4 R. V. Grevil, 1 And. 194. See, also, supra, § 257; Wliart 6 R. V. Harvey, L. R. 1 C. C. 284. Crim. EIv., § 124. It Is not essential, on an indict- 3 People v. Soto, 49 Cal. 69; see ment on the Slave-trade Act of Taylor v. State, 25 Tenn. (6 20th of April, 1818, ch. 86, §§2 Humph.) 285. and 3, to aver that the defendant 4R. v. Barran, Jebb 245; R. y. knowingly committed the offense. Bamam, 1 Crawf. & Dix C. C. 147. — ; .Ited States v. Smith, 2 Mas. 6 State v. Tootle, 2 Harr. (Del.) C. C. 143, 'I'ed. Cas. No. 16338. 541; R. v. Spicer, 1 Car. & K. 699, iWhart. Crim. Ev., §124. 47 Eng. C. L. 697; R. v. McCully, 2 State v. Plunket, 2 Stew. (Ala.) 2 Moody 34. 11; Turley v. State, 22 Tenn. (3 Compare: R. v. Beany, R. & R. Hui^..h.) 323; R. v. Douglas, 1 416. 324 CEIMINAIj procedueb. §287 stands alone in the statute, -without "ewes" or "lambs" being specified; but not otherwise.® On the same condi- tions, under the term "cattle" may be included "pigs,"'' " asses, "^ "horses,"^ and "geldings,"^" but not a do- mesticated buffalo," "sheep," or " goats. "^^ As a nomen generalissimum, under "swine" may be included "hogs";^^ under "horses" may be included " mares. "^* The rule generally may be stated to be that when a stat- ute uses a nomen generalissimum as such (e. g., cattle), then a particular species can be proved; but that when the statute enumerates certain species, leaving out others, then the latter can not be proved under the nomen generalissimum, unless it appears to have been the in- tention of the legislature to use it as such.^^ 6 R. V. Puddifoot, 1 Moody 247; R. V. Loom, 1 Moody 160. 7 R. V. Chappie, R. & R. 77. 8 R. V. Whitney, 1 Moody 3. 9 State V. Hambleton, 22 Mo. 452; Fein v. Territory, 1 Wyo. 376; R. V. Magle, 3 East P. C. 1076. In Texas, under statute, a "geld- ing" under the term "horse." — Jordt V. State, 31 Tex. 571, 98 Am. Dec. 550. — Contra in Texas at common law. — Valesco v. State, 9 Tex. App. 76. And see Cameron v. State, 9 Tex. App. 332. 10 R. V. Mott, 2 East P. 0. 1075. "Gelding" does not include a rldgeling. — ^Briscoe v. State, 4 Teftc. App. 219, 30 Am. Rep. 162. Indictment for theft of a geld- ing defendant can not be con- victed of horse stealing. — State v. McDonald, 10 Mont. 21, 24 Am. St. Rep. 25, 24 Pac. 628; Hartley v. State, 53 Neb. 310, 73 N. W. 744; Swindel t. State, 32 Tex. 102; Glbbs T. State, 34 Tex. 134. "Steer" does not Include "cow" in indictment for larceny. — Marti- nez V. Territory, 5 Ariz. 55, 44 Pac. 1089. 11 State T. Crenshaw, 22 Mo. 457. 12 Mcintosh V. State, 18 Tex. App. 284. 13 Rivers v. State, 10 Tex. App. 177. 14 People V. Pico, 62 Cal. 50. "Mare" includes within its mean- ing "one certain animal of the horse species, to-wit, female colt." — Miller v. Territory, 9 Ariz. 123, 80 Pac. 321. 15 ALA. — State v. Plunket, 2 Stew. 11. N. C— State v. Godet, 29 N. C. (7 Ired.) 210. S. C— Though see. State v. McLain, 2 Brev. 443; Shubrick v. State, 2 S. C. 21. TENN.— Taylor v. State, 25 Tenn. (6 Humph.) 285. VT.— State V. Abbott, 20 Vt. 537. BNG. — R. V. Chard, R. & R. 488; R. v. Welland, R. & R. 494. As to machinery, see Kerr's Whart. Grim. Law, § 1299, §288 INDICTMENT PROVISOS AND EXCEPTIONS. 325 § 288. Pbovisos and exceptions not part of definition NEED not be stated. "Piovisos" and "exceptions," to whose consideration we next proceed, though usually- coupled in this connection, are logically distinct; a "pro- viso" being a qualification attached to a category, an "exception," the taking of particular cases out of that category. For our present purposes, however, they may be considered .together ; and the first principle that meets us is that when they are not so expressed in the statute as to be incorporated in the definition of the offense, it is not necessary to state in the indictment that the de- fendant does not come within the exceptions, or to nega- tive the statutory provisos.'^ Nor is it even necessary 1 1 Sld. 303; 2 Hale 171; 1 Lev. 26; Poph. 93, 94; 2 Bur. 1037; 2 Stra. 1101; 1 East R. 646, in notes; 5 T. R. 83; 1 Bla. R. 230; 2 Hawk., c. 25, §112; Bac. Ab. Indict. H. 2; Burn, J., Indict, ix; 1 Chit, on Pleading 357. ALA.— Carson v. State, 69 Ala. 235; Grat- tan V. State, 71 Ala. 344; Jones v. State, 81 Ala. 79, 81, 1 So. 32. ARK.— Wilson v. State, 33 Ark. 557, 34 Am. Rep. 52. CAL.— Ex parte Hornet, 154 Cal. 355, 97 Pac. 891; Hogan v. Superior Court, 16 Cal. App. 793, 117 Pac. 951. COLO. —Johnson v. People, 33 Colo. 224, 108 Am. St. Rep. 85, 80 Pac. 133. CONN.— State v .Miller, 24 Conn. 522; State v. Powers, 25 Conn. 48. DAK.— Territory v. Scott, 2 Dak. 212, 67 N. W. 435. FLA.— Baeumel v. State, 26 Fla. 71, 7 So. '!71; Ferrell v. State, 45 Fla. 26, 34 So. 320. ILL. — Metzker v. State, 14 111. 101; Swartzbaugh v. Peo- ple, 85 111. 457; Beasley v. People, 89 111. 571. IND.— Colson v. State, 7 Blackf. 590; Russell v. State, 50 Ind. 174; State v. Maddox, 74 Ind. 105. IOWA— Romp v. State, 3 Greene 276; State v. Williams, 20 Iowa 98. KY. — Thompson v. Com., 103 Ky. 685, 46 S. W. 492. ME.— State V. Gurney, 37 Me. 149 ; State V. Boyington, 56 Me. 512. MASS. —Com. V. Hart, 65 Mass. (11 Cush.) 130, 1 Benn. & H. Lead. Crim. Cas. 250; Com. v. R. R., 92 Mass. (10 Allen) 189; Com. v. Jennings, 121 Mass. 47, 23 Am. Rep. 249; Com. y. Shannihan, 145 Mass. 99, 13 N. E. 347. MICH.— Kopke v. Peo- ple, 43 Mich. 41, 4 N. W. 551. MISS. — Thompson v. State, 54 Miss. 740. MO. — State v. O'Gor- man, 68 Mo. 179; State v. Jaques, 68 Mo. 260; State v. O'Brien, 74 Mo. 549. MONT. — Territory v. Burns, 6 Mont. 72, 9 Pac. 432. NEV.— State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488; State v. Buckaroo Jack, 30 Nev. 325, 96 Pac. 467. N. H.— State v. Foster, 23 N. H. 348, 55 Am. Dec. 191; State V. Abbott, 31 N. H. (11 Fost) 434; State v. Wade, 34 N. H. 495; State V. Cassady, 52 N. H. 500. N. Y. — Fleming v. People, 27 N. Y. 329 ; Jefferson v. People, 101 N. Y. 19, 238, 3 N. Y. CrIm. Rep. 572, 326 CEIMINAL PROCEDUKB. §288 to allege that he is not within the benefit of the provisos, though the purview should expressly notice them; as by saying that none shall do the act prohibited, except in 3 N. E. 797, affirming 28 Hun 52. N. C— State v. Lofton, 19 N. C. (2 Dev. & B.) 31; State v. Heaton, 81 N. C. 542. OHIO— Becker v. State, 8 Ohio St. 391; Stanglein v. State, 17 Ohio St. 453; Hale v. State, 58 Ohio SL 676, 51 N. B. 154; Billingheimer v. State, 32 Ohio St 535; Hale v. State, 58 Ohio St. 676, 51 N. B. 154. PA.— Walter v. Com., 6 Weekly Notes Cases 389. R. I.— State v. O'Don- nell, 10 R. I. 472; State v. Rush, 13 R. I. 198; State v. Gallagher, 20 R. I. 266, 38 Atl. 655. TENN.— Worley v. State, 30 Tenn. (11 Humph.) 172; State v. Jackson, 69 Tenn. (1 Lea) 680. TEX.— Blas- dell V. State, 5 Tex. App. 263; Logan V. State, 5 Tex. App. 306; Wllkerson v. State, 44 Tex. Cr. Rep. 455, 72 S. W. 850. VT.— State T. Abbey, 29 Vt. 60, 67 Am. Dec. 754; State v. Hodgdon, 41 Vt. 139; State v. Ambler, 56 Vt. 672; Western Union Tel. Co. t. Bul- lard, 65 Vt. 634, 27 Atl. 322; State V. Bevins, 70 Vt. 574, 41 Atl. 655; State V. Paige, 78 Vt. 286, 6 Ann. Cas. 725, 62 Atl. 1017. FED.— United States v. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538, 1 Cow. Cr. Rep. 308; United States V. Nelson, 29 Fed. 202; Shelp v. United States, 26 C. C. A. 570, 48 U. S. App. 376, 81 Fed. 694. EN(J.— Murray v. R., 7 Ad. & El. N. S. (7 Q. B.) 700, 53 Eng. C. L. 698. Exception In enacting clause, the exception must be negatived, and the indictment must state that accused is not within it. GA. — Elkins V. State, 13 Ga. 435. ME.— State V. Moore, 6 Me. 274; State V. Boyington, 56 Me. 512. MASS. —Com. V. Byrnes, 126 Mass. 248. MISS.— Kline v. State, 34 Miss. 317. VT.— State v. Butler, 17 Vt. 149; State v. Palmer, 18 Vt. 573; State V. Barker, 18 Vt. 197; State V. Abbey. 29 Vt 60, 67 Am. Dec. 754. I But it not so inserted as to qualify the enactment, it need not be negatived. — Fuller v. State, 33 N. H. 259. Exception in subsequent clause or section of the statute, need not be negatived in the indict- ment. Ibid. See, also, authori- ties, ante, § 288, in footnote 5. "There seem to be many shad- owy distinctions, the sound reason and good sense of which are not easily discoverable." — State v. Palmer, 18 Vt 573. Middle class of cases where ex- ception is not in express terms in- troduced into enacting clause, but only by reference to a subsequent clause, or prior statute, as where the words "except as hereinafter mentioned," or words of similar import, are employed. In such cases the exception, whether the exception applies to the person or to the offense, must be negatived. Verba relata inesse videntur. — State V. Palmer, 18 Vt. 570; State V. Abbey, 20 Vt. 60, 67 Am. Dec. 754; R. T. Pratten, 6 T. R. 559. Reason for the rule as to nega- tiving exceptions is founded on the general principle that the in- dictment must contain the state- ment of those facts which consti- §288 INDICTMENT — PROVISOS AND EXCEPTIONS. .327 the cases thereinafter accepted.^ Nor, even when the enacting clause refers to the subsequent excepting clauses, does this necessarily draw such subsequent clause up into the enacting clause.^ For when such exceptions embrace matters of defense, they are properly to be introduced by the defendant.* And extenuation which comes in by tute an otEense under the statute. A prima facie case must be stated; and it is for the accused for whom matter of excuse exists to bring it forward in his pleading or defense. — State v. Abbey, 29 Vt. 60, 67 Am. Dec. 754. See Com. v. Hart, 65 Mass. (11 Gush.) 130, 1 Benn. & H. Lead. Gas. 250; Davis V. Henry, 121 Mass. 153. Indictment for abortion neces- sary to negative exception as to necessity for preserving life. — State V. Stokes, 54 Vt. 179. Indictment for eloping with wife of another exception that was in- nocent and virtuous must be averred. — State v. Gonnor, 142 N. C. 700, 55 S. B. 787. Indictment for rape must aver woman not the wife of the ac- cused. — Young V. Territory, 8 Okla. 525, 58 Pac. 724; Parker v. Territory, 9 Okla. 109, 59 Pac. 9. As to proof of negative aver- ments, see Whart. Grim. Ev., § 321. 2 GAL. — People v. Nugent, 4 Gal. 341; Ex parte Hornef, 154 Gal. 361, 97 Pac. 893. GONN.— State V. Powers, 25 Conn. 48. N. H.— State v. Adams, 6 N. H. 533. TENN.— Matthews v. State, 10 Tenn. (2 Yerg.) 233. VT.— State V. Sommers, 3 Vt. 156; State V. Abbey, 29 Vt. 60, 67 Am. Dec. 754. See Kerr's Whart. Crim. Law, § 2055. 3 Ibid.; 2 Hawk. P. C. C. 25; Com. V. Hill, 5 Gratt. (Va.) 682. 4 1 Bla. Rep. 230; 2 Hawk., ch. 25, §113; 2 Ld. Raym. 1378; 2 Leach 548; People v. Nugent, 4 Gal. 341. See, also, reading notes in footnote 1, this section. The subject is closely allied to that of Bur'den of Proof, discussed in Whart. Crim. Ev., § 319. in Com. V. Hart, 65 Mass. (11 Gush.) 130, 1 Benn. & H. Lead. Grim. Gas. 250, we have the fol- lowing from Metcalf, J.: "The rule of pleading a statute which contains an exception is usually expressed thus: 'If there be an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but If there be an exception in a subsequent clause or subsequent statute, that is matter of defense, and is to be shown by the other party.' The same rule is applied in pleading a private instrument of contract. If such instrument contain in it, first, a general clause, and after- wards a separate and distinct Clause which has the effect of tak- ing out of the general clause some- thing that would otherwise be in- cluded in it, a party relying upon the general clause, in pleading, may set out that clause only, with- out noticing the separate and dis- tinct clause which operates as an exception; but If the exception Itself be incorporated in the gen- eral clause, then the party relying on it must, in pleading, state it 328 CRIMINM; PBOCEDUEB. 289 way of subsequent proviso or exception need not be pleaded by the prosecution." — Otherwise wheit proviso is in same clause. §289. - But where a proviso adds a qualification to the enactment, so as to bring a case within it, which, but for the pro- viso, would be without the statute, the indictment mast show the case to be within the proviso.^ This is emi- nently the case with clauses in statutes prohibiting doing together with the exception. — Gould PI., ch. 4, §§20, 21; 2 Saun- ders PI. & Bv., 2d ed., 1025, 1026; Vavasour v. Ormrod, 9 Dow. & Ry. 597, 6 Barn. & C. 430, 13 Eng. C. L. 199. "The reason of this rule is oh- vious, and is simply this: Unless the exception in the enacting clause of a statute, or in the gen- eral clause in a contract, is nega- tived in pleading the clause, no offense or no cause of action ap- pears in the indictment or decla- ration, when compared with the statute or contract. — Plowden 410. But when the exception or proviso Is in a subsequent substantive clause, the case provided for in the enacting or general clause may be fully stated without negativing the subsequent exception or pro- viso. A prima facie case is stated, and it is for the party, for whom matter of excuse is furnished by the statute or ' the contract, to bring it forward in his defense. "The word 'except' Is not neces- sary In order to constitute an ex- ception within the rule. The words 'unless,' 'other than,' 'not being,' 'not having,' etc., have the same legal effect, and require the same form of pleading." — East P. C. 166, 167; Com. v. Maxwell, 19 Mass. (2 Pick.) 139; State v. But- ler, 17 Vt. 145; Wells v. Iggulden, 5 Dow. & Ry. 19; R. v. Palmer, 1 Leach C. C, 4th ed., 102; Spieres V. Parker, 1 T. R. 141; Gill v. Scrlvens, 7 T. R. 27. But in a subsequent case the last distinction was reconsidered in the same court, it being held that an exception not In the en- acting clause need not be nega- tived, unless necessary to the defi- nition of the offense. — Com. v. Jen- nings, 121 Mass. 47, 23 Am. Rep. 249. 5R. V. Bryan, 2 Stra. 1101, 93 Eng. Rep. 1058. Where different grades of the same general offense are defined in the statute, certain special cir- cumstances being included as es- sential elements in the definition of the higher grade and excluded by negative words in the defini- tion of the lower grade, an Infor- mation charging the lower grade of the offense need not negative the presence of such circum- stances.— Infra, §250; State v. Kane, 63 Wis. 260, 23 N. W. 488. 1 ALA.— Smith v. State, 81 Ala. 74, 1 So. 83; Jones v. State, 81 Ala. 79, 1 So. 32. CAL. — People V. Roderigas, 44 Cal. 9. DAK.— Territory v. Scott, 2 Dak. 212, 6 N. W. 435. KY.— Connor v. Com., 290 INDICTMENT — NEGATIVING EXCEPTIONS. 329 certain acts without a license,^ and with statutes prohib- iting sales to minors without consent of parents.* And where a statute forbids the doing of a particular act, without the existence of either one of two conditions, the indictment must negative the existence of both these con- ditions before it can be supported.* § 290. Exceptions in enacting clause to be negatived. Where exceptions are stated in the enacting clause (under which term are to be understood all parts of the stat- ute which define the offense), unless they be mere mat- ters of extenuation or defense, it will be necessary to negative them, in order that the description of the crime may in all respects correspond with the statute.^ But it 76 Ky. (13 Bush) 714. ME.— State V, Godfrey, 24 Me. 232, 41 Am. Dec. 382; State v. Gumey, 37 Me. 149; State v. Boyington, 56 Me. 512. MD.— Barber v. State, 50 Md. 161; Gibson v. State, 54 Md. 447. MASS. — Com. V. Jennings, 121 Mass. 47, 23 Am. Rep. 249; Com. V. Davis, 121 Mass. 352. MO.— State V. Meek, 70 Mo. 355, 35 Am. Rep. 427. N. H.— State v. Abbott, 31 N. H. (11 Fost.) 434; State v. Bryant, 58 N. H. 79. N. C— State V. Heaton, 81 N. C. 542; State v. Lanier, 88 N. G. 658. TEX.— Leatherwood v. State, 6 Tex. App. 244; Tallnerv. State, 15 Tex. App. 23. VT.— State v. Barker, 18 Vt. 195; State v. Palmer, 18 Vt. 570; State V. Stokes, 54 Vt. 179. WIS. — Jenson v. State, 60 Wis. 577, 19 N. W. 374. FED. — United States V. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538; and cases cited in prior notes. Dam creating nuisance, Indict- ment must allege dam not erected and maintained in accordance with the charter granting the privilege. — State V. Webb's River Imp. Co., 97 Me. 559, 55 Atl. 495. "TTlegai fishing charged, indict- ment must aver fishing occurred in a part of the river or other body of water, not exempted from the provisions of the statute. — State V. Turnbull, 78 Me. 392, 6 Atl. 1. As to exceptions in bigamy, see Kerr's Whart. Crim. Law, § 2055. 2 Infra, §§ 290, 291, Kerr's Whart. Crim. Law, § 1789. 3 Ibid. State v. Emerick, 35 Ark. 324; infra, §§290, 291. 4 State V. Loftin, 19 N. C. (2 Dev & Bat.) 31; Newman v. State, 63 Ga. 533. Thus, When either of two licenses Is specified, both must be negatived. — Neales v State, 10 Mo. 498. 1 2 Hale 170; 1 Burr. 148; Fost. 430; 1 East Rep. '646, in notes; 1 T. R. 144; 1 Ley 26; Com. Dig. Action, Statute; 1 Chit, on Plead. 357. GA. — Elkins v. State, 13 Ga. 435. ILL. — Metzker v. People, 14 111. 101. ME.— State v. Godfrey, 24 Me. 232, 41 Am. Dec. 382. MD.— 330 CEIMINAIi PEOCEDUEE. 290 is a substantial, not an express negative, tliat is required.^ Thus, where the charge preferred, ex natura rei, as con- clusively imports a negative of the exception as if such negative had been in express terms, the indictment is suf- ficient under the above general rule.^ Instances: Thus, where a statute imposes a penalty on the selling of spirituous liquors without a license, it is necessary to aver the want of a license in the indict- ment ;* and such negation must squarely meet and trav- erse the assumption of a license of the character specified in the indictment as an excuse.^ So, in an indictment under the Mississippi Act of 1830, prohibiting any per- son, other than Indians, from making settlements within their territory, it is necessary to aver that the defendant See state v. Price, 12 Gill & J. 260, 37 Am. Dec. 81; Rawllngs v. State, 2 Md. 201; Barber v. State, 50 Md. 161; Kieferv. State, 87 Md. 562, 40 Atl. 377. MISS.— Kline v. State, 44 Miss. 317. N. H. — State T. Adams, 6 N. H. 532. N. C— State V. Bloodworth, 94 N. C. 918. VT.— State V. Hunger, 15 Vt. 290. See, also, authorities, ante, § 288, footnote 1. Exceptions and provisos descrip- tive of offense, only, need be neg- atived. — State V. Bouknlght, 55 S. C. 353, 74 Am. St. Rep. 751, 33 S. E. 451. Following words of statute In negativing exception, indictment usually sufficient. — Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522. Proviso to subsequent section need not be negatived. — State v. Byington, 56 Me. 512; Rawlins v. State, 2 Md. 201; Kiefer v. State, 87 Md. 562, 40 Atl. 377. As to mode of negativing, see Beasley v. People, 89 III. 571. 2 State V. Brown, 8 Blackf. (Ind.) 69; State v. Damon, 97 Me. 323, 54 Atl. 845; State v. Mont- gomery, 92 Me. 433, 43 Atl. 13. 3 State v. Price, 12 Gill & .T. (Md.) 260, 37 Am. Dec. 81; State V. Bouknight, 56 S. C. 532, 74 Am. St. Rep. 751, 32 S. E. 451. 4 Com. V. Thurtow, 41 Mass. (24 Pick.) 374; Riley v. State, 43 Miss. 397; see Surratt v. State, 45 Miss. 601; State v. Webster, 10 N. J. L. (5 Halst.) 293. See fully, infra, note to § 291. Compare: Kerr's Whart. Grim. Law, §§ 1789, 2055. Where the statute declares that the license may be from "A. or B.," this is to be negatived by de- nying a license from either "A. or B." See Com. v. Hadcraft, 69 Ky. (6 Bush) 91; State v. Swad- ley, 15 Mo. 515; State v. Burns, 20 N. H. 550; People v. Gilkinson, 4 Park. Cr. Rep. (N. Y.) 26. 6 Ibid.; Davis v. State, 39 Ala. 521; Goodwin v. State, 72 Ind. 113, 37 Am. Rep. 144; Rawllngs v. State, 2 Md. 236. § 291 INDICTMENT NEGATIVING EXCEPTIONS. 331 is not an Indian.* Again, on an indictment under the Massachusetts statute of 1791, c. 58, making it penal to entertain persons not being strangers on the Lord's day, it must appear that the parties entertained were not strangers.'' So in Vermont, an indictment under the stat- ute which prohibits the exercise on the Sabbath of any "secular business," etc., except "works of necessity and charity," must allege that the acts charged were not acts of "necessity and charity."^ Even where certain persons were authorized by the legislature to erect a dam, in a certain manner, across a river which was a public high- way, it was held that an indictment for causing a nuisance, by erecting the dam, must contain an averment that the dam was beyond the limits prescribed in the charter, and that it was not erected in pursuance of the act of the leg- islature.® § 291. Question in such case is whether statute CEEATES A GENERAL OR A LIMITED OFFENSE. Such are the technical tests which are usually applied to determine whether an exception or proviso is or is not to be nega- tived in an indictment. In many cases we are told that when the exception or proviso is in the ' ' enacting clause, ' ' it must be negatived in the indictment, but it is other- wise when it is in "subsequent" clauses. This distinction has sometimes been called rude, and sometimes artificial, yet in point of fact it serves to symbolize a germinal point of discrimination. I prohibit, for instance, all sale of alcohol by a sweeping section; and in a subsequent section I except from this sales for medicinal purposes. Here the very structure of the statute shows my intent, which is to make the sale of alcohol a crime by statute, as is the exploding gunpowder in the streets a crime at 6 state V. Craft, 1 Miss. (1 8 State v. Barker, 18 Vt. 195. Walker) 409; Matthews v. State, 9 State v. Godfrey, 24 Me. 232, 10 Tenn. (2 Yerg.) 233. 41 Am. Dec. 382. 7 Com. V. Maxwell, 19 Mass. (2 Pic!t.) 139. 332 CRIMINAL PROCBDUEB. § 291 common law; and hence a license in the first case need not be negatived in the indictment any more than a license in the second.^ On the other hand, I enact that none but licensed persons shall sell alcohol. Here I do not create a general crime, but I say that if certain persons do certain things they shall be liable to indictment; and to maintain an indictment it must be averred that the de- fendants were of the class named. Hence the test before us is not formal, but essential; it is practically this, — is it the scope of the statute to create a general offense, or an offense limited to a particular class of persons or conditions? In other words, is it intended to impose the stamp of criminality on an entire class of actions, or upon only such actions of that class as are committed by particular persons or in a particular way? In the latter case, the defendant must be declared to be within this class; in the former case this is not necessary. We may take as a further illustration a statute defining mur- der, in which statute are specified the cases in which necessity or self-defense are to be regarded as excusatory. It would make no matter, in such case, whether these excusatory cases be or be not given in the same clause Avith that prohibiting the general offense ; in either case they need not be negatived in the indictment. The same might be said of the defense, that the person killed was an alien enemy, and that the killing was in open war. On the other hand, if the statute should say that an offense is indictable only when perpetrated on a particular class of persons, no matter how many clauses may intervene between the designation of the offense and the limitation of the object, the limitation of the object must be given in the indictment.^ Of course, the question thus involved, whether a crime is general or limited as to persons, may be determined otherwise than by the structure of a stat- ute. If it be clear that an act is only to become a crime 1 See Surratt v. State, 45 Miss. 2 Com. v. Maxwell, 19 Mass. (2 601, Pick.) 139. §291 INDICTMENT — NEGATIVING EXCEPTIONS. 333 when executed by persons of a particular class, or under particular conditions, then this class or those conditions must be set out in the indictment, no matter in what part of the statute they may be expressed. With this view practically coincides that expressed in some of the cases cited above, that mere excusatory defense is not to be negatived in the indictment. For an excusatory de- fense implies a crimen generalissimum ; and to a crimen generalissimum no exceptions, on the foregoing princi- ples, need be negatived in the indictment.^ 3 See 1 Benn. & Heard's Lead. Crlm. Cas. 250; Kerr's Whart. Crim. Law, § 2055. GA.— Hill v. State, 53 Ga. 472. MASS. — Com. V. Hart, 65 Mass. (11 Cush.) 130; Com. V. Jennings, 121 Mass. 47, 23 Am. Rep. 249. MISS.— Surratt v. State, 45 Miss. 601. MO.— Neales V. State, 10 Mo. 498. R. I.— State V. O'Donnell, 10 R. L 472. VT.— State V. Abbey, 29 Vt. 60, 67 Am. Dec. 754. In England a statute casting on the defendant the burden of prov- ing a license does not, by itself, relieve the prosecution from aver- ring the want of license (R. v. Harvey, L. R. 1 C. C. 284), though otherwise in Massachusetts. — Com. V. Edwards, 66 Mass. (12 Cush.) 187. In prosecutions for selling liq- uor without license, the indict- ment, as a general rule, should negative the 1 i c e n s e. — IND. — Burke v. State, 52 Ind. 461. KY.— Com. V. Smith, 69 Ky. (6 Bush) 303. MASS. — Com. r. Thurlow, 41 Mass. (24 Pick.) 374. N. J.— State V. Webster, 10 N. J. L. (5 Halst.) 293. TEX.— State v. Ho- ran, 25 Tex. 271. VT.— State v. Munger, 15 Vt. 290. VA.— Com. v. Hampton, 3 Gratt. 590. — ^Accused not a "druggist," in- dictment need not aver. — Riley v. State, 43 Miss. 397; Surratt y. State, 45 Miss. 601; State v. Bu- ford, 10 Mo. 703; State v. Fuller, 33 N. H. 259; State v. Blaisdell, 33 N. H. 388. — The whole question depends, as the cases show, on the prin- ciple underlying the statute. Where one section of the statute imposes a penalty on selling "in violation of the provisions of this act," it has been held unnecessary to negative exceptions in subse- quent sections. — Com. v. Tuttle, 66 Mass. (12 Cush.) 502; Com. v. Hill, 5 Gratt. (Va.) 682. — In Maine a statute has been held unconstitutional which pre- scribes that the vendee need not be named. — State v. Learned, 47 Me. 426. — In Texas, a statute providing that license need not be negatived has been pronounced unconstitu- tional. — State V. Horan, 25 Tex. 271; Hewitt v. State, 25 Tex. 722. — In Vermont, the rule is the contrary of the Texas rule. — State v. Comstock, 27 Vt. 553. — "Without" implies a sufficient negation. — Com. v. Thompson, 84 Mass. (2 Allen) 507. 334 CEIMINAL PEOCEDURB. [292 XII. Duplicity. § 292. Gen-erally, joinder in one count of two dis- tinct OFEENSBS IS BAD. A count in an indictment which charges two distinct offenses, each distinctively punish- able, is bad, and may be quashed on motion of the de- fendant, or judgment may be entered for the defense — "Without lawful excuse" Is equivalent to without authority. — R. V. Harvey, L. R. 1 C. C. 284. "Without being duly authorized and appointed thereto according to law," is a sufficient negation. — • Com. V. Conant, 72 Mass. (6 Gray) 482; Com. v. Keefe, 73 Mass. (7 Gray) 332; Com. v. Hoyer, 125 Mass. 209; see State v. Horn- break, 15 Mo. 478; State v. An- drews, 28 Mo. 17; State v. Fan- ning, 38 Mo. 359; Roberson v. Lambertville, 38 N. J. L. (9 Vr.) 69. — If the negation of the license to sell is as to quantity co-exten- sive with the quantity charged to be sold, it is sufficient The gen- eral negation, "not having a li- cense to sell liquors as aforesaid," relates to the time of sale, and not to the time of finding of the bill, and will suffice. — State v. Munger, 15 Vt. 290. As to mode of negativing, see Eagan v. State, 53 Ind. 162. In indictments for bigamy, the exceptions in the statute, when not part of the description of the offense, need not be negatived. — IOWA— State v. Williams, 20 Iowa 98. MASS.— Com. v. Jennings, 121 Mass. 47, 50, 23 Am. Rep. 249. MINN.— State V. Johnson, 12 Minn. 476, 93 Am. Dec. 241. N. C— State V. Loftin, 19 N. C. (2 Dev. & B.) 31. OHIO— Stanglein v. State, 17 Ohio St. 453. VT.— State V. Abbey, 29 Vt. 60, 67 Am. Dec. 754. ENG. — Murray v. R., 7 Ad. & El. N. S. (7 Q. B.) 700, 53 Bng. C. L. 698. Nor is it necessary to allege that the defendant knew at the time of his second marriage that his former wife was then living, or that she was not beyond the seas, or to deny her continuous absence for seven years prior to the second marriage. — Barber v. State, 50 Md. 161, citing Bode v. State, 7 Gill (Md.) 316. Where an indictment, under the Massachusetts statute, alleged that the defendant, on a certain day, was lawfully married to A.; and that afterwards, on a certain day, he "did unlawfully marry and take to his wife one B., he, the defend- ant, then and there being mar- ried and the lawful husband of the said A., she, the said A., being his lawful wife, and living, and he, the said defendant, never having been legally divorced from the said A."; and it was proved that the defendant was lawfully married to A.; that afterwards she was duly divorced from him for misconduct on his part; and that he then married B.; it was ruled, that there was a variance between the allegations and the proof. — Com. .v. Richardson, 126 Mass. 34, 30 Am. Rep. 647. 292 INDICTMENT DUPLICITY, WHAT IS. 335 on special demurrer.^ But where two or more acts con- stitute the same offense under the statute, and are, in legal contemplation, one and the same act, whether taken separately or conjointly, they may be joined in one count.* To constitute duplicity, however, the second or super- fluous offense must be sufficiently averred, as otherwise its description can be rejected as surplusage;* nor does the objection of duplicity prevail, as will presently be seen, when one of the offenses joined is a component part It is otherwise where the excep- tion describes the offense in the enacting clause. — Fleming v. Peo- ple, 27 N. y. 329. 1 Starkie's C. P. 272; Archbold C. P. 49. ARIZ. — Territory v. Duffield, 1 Ariz. 59, 25 Pac. 476. ARK. — State v. Brewer, 33 Ark. 176. GA.— Hoskins v. State, H Ga. 92; Long v. State, 12 Ga. 293. IND.— Knopf V. State, 84 Ind. 316; Stewart v. State, 111 Ind. 554, 13 N. E. 59. KY.— Ellis v. Com., 78 Ky. 130. LA.— State v. Maas, 37 La. Ann. 292. MB. — State v. Smith, 31 Me. 386; State v. Gates, 99 Me. 68, 58 Atl. 238. MASS.— Com. V. Symonds, 2 Mass. 163; Com. V. Colby, 128 Mass. 91. MISS.— Miller v. State, 6 Miss. (5 How.) 250. N. H.— State v. Nelson, 8 N. H. 163; State v. Hastings, 53 N. H. 452. N. Y.— People v. Wright, 9 Wend. 193. PA.— Com. v. Gable, 7 Serg. & R. 423. S. C— State v. Lot, 1 Rich. 260. TENN.— State V. Ferriss, 71 Tenn. (3 Lea) 700. TEX. — Heinemann t. State, 22 Tex. App. 44, 2 S. W. 619. VT.— State V. Morton, 27 Vt. 310, 65 Am. Dec. 201. VA. — Rasnick v. Com., 2 Va. Cas. 356. FED. — United States V. Nunnemacher, 7 Biss. 0. C. 129, Fed. Cas. No. 14903; United States v. Sharp, 1 Peters C. C. R. 131, Fed. Cas. No. 16265. Similar acts of equal criminality, when done by one person, may be joined in one count and stated as one crime. — Byrne v. State, 12 Wis. 519. 2 People T. Dole, 122 Cal. 486, 68 Am. St. Rep. 50, 58 Pac. 581 (raising a check and forging in- dorsements thereon) ; McClure v. State, 27 Colo. 358, 61 Pac. 612; Com. V. Curtis, 91 Mass. (9 Allen) 266 (violations of city ordinance prohibiting the permitting of swine to run at large upon the streets) ; State V. Morton, 27 Vt. 310, 65 Am. Dec. 201 (charging defendant forged, and caused to be forged, and aided in forging) ; Morgan- stern V. Com., 94 Va. 787, 26 S. E. 402; United States v. Nunne- macher, 7 Biss. 129, Fed. Cas. No. 15903 (violations of internal reve- nue laws) ; United States v. Hull, 4 McCr. 272, 14 Fed. 324 (making false claims against the United States). 3 Supra, § 200; Whart. Crim. Bv., §138; State v. Palmer, 35 Me. 9; Com. v. Tuck, 37 Mass. (20 Pick.) 356; Green v. State, 23 Miss. 509; Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340. 336 CRIMINAL PEOCEDUBE. § 293 or preliminary stage of tlie other. The objection, also, can not be taken on arrest of judgment.* § 293. Exception- in cases where IiAbcbny is in- CLTJDED IN BTJEGLARY OE EMBEZZLEMENT. Prominent excep- tions to the rule before us are to be found in indictments for burglary, in which it is correct to charge the defen- dant with having broken into the house with intent to commit a felony, and also with having committed the felony intended;^ in indictments for robbery, in which there can be averments for larceny j^ and in indictments in England for embezzlements by persons intrusted with public or private property, which may charge any num- ber of embezzlements, not exceeding three, committed within six months.^ On the same principle, a count stat- ing that the defendant broke and entered into a shop with intent to commit a larceny, and did then and there commit a larceny, is not bad for duplicity.* So when an indictment alleged that the defendant broke and en- tered into the dwelling-house of one person with intent to steal his goods, and having so entered, stole the goods of another person, etc., it was held there was no mis- joinder.^ So, also, a person may be indicted in one count for breaking and entering a building with intent to steal, and also with stealing, and may be convicted of the lar- ceny simply.* 4 Infra, §304. 3 Archbold's C. P. 49; Whart. 1 Kerr's Wiart. Crim. Law, Grim. Ev., § 129. §1038. ARK.-Dodd v. State, 33 ^ com. v. Tuck, 37 Mass. (20 Ark. 517. lOWA-State v. Shaffer, pjj,k.) ggg. gt^te v. Ayer, 23 N H 59 Iowa 290, 13 N. W. 306. LA.— (3 p^gt j 301 State V. Depass, 31 La. Ann. 487; State V. Johnson, 34 La. Ann. 48; State T. Pierre, 38 La. Ann. 91 Contra, under Iowa Code, see State V. MoFarland, 49 Iowa 99. MO.— State v. Davis, 73 Mo. 129. " State v. Brady, 15 Vt. 353. 2 Infra, § 295; Allen v. State, 68 6 ALA. — Borum v. State, 66 Ala. Ala. 98; People v. Jones, 53 Cal. 468. CAL.— People v. Nelson, 58 58; McTigue v. State, 63 Tenn. Cal. 104. DEL. — State v. Crocker, {4 Baxt.) 31. 3 Harr. 554. KAN.— Stats v. Bran- §§ 294, 295 INDICTMENT MINOR CRIME IN MAJOR. 337 § 294. And so wheee roKNiCATioN is included in MAJOB OFFENSE. Another exception has been recognized in indictments for adultery, in which under some statutes the jury may find , the defendants guilty of fornica- tion but not guilty of adultery.^ And so, on an indict- ment for seduction,- it is not duplicity to charge forni- cation.* It is not duplicity, also, to join "battery" with "rape"* or "robbery."^ § 295. "When major crijie includes minor, conviction MAY BE FOR EITHER. At commou law, uuder an indictment charging the higher offense, the defendant could be found guilty of a lower grade of offense of the same generic character.^ The same view is taken by the courts in this country.^ Generally speaking, where an accusation (as in the case of the inclusion of manslaughter in mur- der) includes an offense of an inferior degree, the jury may discharge the defendant of the high crime, and convict him of the less atrocious ; and in such case it is don, 7 Kan. 106. MISS.— Smith Compare: Maull v. State, 37 Ala. V. State, 57 Miss. 822. N. C. — State 160. V. Grlsham, 2 N. C. (1 Hayw.) 12. 2 State v. Blerce, 27 Conn. 319; OHIO— Breese v. State. 12 Ohio St. Dinkey v. Com., 17 Pa. St. 126, 146, 80 Am. Dec. 340. R. I.— State 55 Am. Dec. 542. See Kerr's Whart. V. Colter, 6 R. I. 195. TENN.— crim. Law, § 2083. Davis V. State, 43 Tenn. (3 Cold.) 3 ^^^ ^_ Murphey, 84 Mass. (2 77. VA.-Speersv.Com.,17Gratt. ^ii^j^^ies. See Shouse v. Com., 570; Vaughan v. Com., 17 Gratt 576. See Kerr's Whart. Crim. Law, § 1037, and cases. So In Ohio, as to "robbery" and ■'assault."-Howard v. State. 25 ^ Hanson v. State, 43 Ohio St. Ohio St. 399. ^^^' ^ ^- ^- ^^®- 1 State V. Cowell, 26 N. C. (4 ^ State v. Robey. 8 Nev. 312; Ired.) 231; Barber v. State, 39 Ohio MacKalley's Case, 9 C. Rep. 67b. St. 660; Com. V. Roberts, 1 Yeates 2 State v. Waters, 39 Me. 54; (Pa.) 6. Com. v. Griffin, 38 Mass. (21 Pick.) See Kerr's Whart. Crim. Law, 523; State v. Lessing, 16 Minn. 75; § 2083. State v. Robey, 8 Nev. 312. I. Crtm. Proc— 22 5 Pa. St. 83; Dinkey v. Com., 17 Pa. St. 126, 55 Am. Dec. 542. 4 Com. v. Thompson, 116 Mass. 346. 338 CRIMINAL PROCEDUBK §296 sufficient if they find a verdict of guilty of the inferior offense, and take no notice of the higher.^ On indictments for riot there can be a conviction of any averred indictable ingredient.* Hence, when there is a proper allegation in the indictment for riot, the defen- dant may be convicted of an assault.^ Under indictment for robbery, also, there may, when there are proper averments, be a conviction of larceny.* §296. "Assault" is h^^oltjded under "assault with INTENT." Further illustrations are to be found in indict- ments for assault and battery, or assault with intent to kill or ravish, or assault with intent to do other illegal acts, where the defendant may be convicted of assault alone,^ or for assault and battery, where a battery is 3 See Kerr's Whart. Crim. Law, §§675-840. ARK. — Cameron v. State, 13 Ark. (8 Bng.) 712. COLO. — Packer v. People, 8 Colo. 361, 8 Pac. 564. IND.— Fahnestock V. State, 23 Ind. 231; Davis v. State, 100 Ind. 154. ME.— State V. Waters, 39 Me. (4 Heath) 54. MASS. — Com. v. Griffin, 38 Mass. (21 Pick.) 523; Com. ,v. Binney, 133 Mass. 571. MISS.— Swlnney v. State, 6 Miss. (8 Sm. & M.) 576. NEB.- Denman v. State, 15 Neb. 138, 17 N. W. 347. N. Y. — People v. McDonnell, 92 N. Y. 657. ORE. — State v. Taylor, 3 Ore. 10. ENG. — R. v. Oliver, 8 Cox C. C. 384, Bell C. C. 287; R. V. Yeadon, 9 Cox C. C. 91; R. v. Dungey, 4 F. & P. 99; R. v. Daw- son, 3 Stark. R. 62, 3 Eng. C. L. 595. See as to verdict, Johnson v. State, 14 Ga. 55; Collins v. State, 33 La. Ann. 162; State v. Flanna- gan, 6 Md. 167. 4 Kerr's Wiart. Crim. Law, §1866. See Bradley v. State, 20 na. 738. 6 Shouse V. Com., 5 Pa. St. 83 ; Kerr's Whart. Crim. Law, § 1866. Compare: Ferguson v. People, 90 111. 570. 6 Kerr's Whart. Crim. Law, § 1093. 1 ALA. — State v. Stedman, 7 Port. 495; Carpenter v. State, 23 Ala. 84. ARK.— McBride v. State, 7 Ark. (2 Eng.) 374. D. C— Ex parte Robinson, 3 McAr. 418. GA.— Clark v. State, 12 Ga. 131; Lewis V. State, 33 Ga. 131. IND. — State V. Kennedy, 7 Blackf. 233; Foley V. State, 9 Ind. 363; Siebert V. State, 95 Ind. 471. IOWA— State V. Graham, 51 Iowa 72, 50 N. W. 285; State v. Scheie, 52 Iowa 608, 3 N. W. 632. KAN.— State v. Cooper, 31 Kan. 505, 3 Pac. 429. ME. — State v. Waters, 39 Me. 54; State V. Dearborn, 54 Me. 442; State V. Bean, 77 Me. 486. MINN. — State V. Lesslng, 16 Minn. 75. MO. — State v. Burk, 89 Mo. 635, 2 S. W. 10. NBV.— State v. Robey, 8 Nev. 312. N. H.— State v. Hardy, 47 N. H. 538. N. J.— Francisco v. State, 24 N. J. L. (4 Zab.) 30; §§ 297, 298 INDICTMENT CONVICTION OF MINOR ONLY. 339 charged in an indictment for assault with intent to kill.* And if the aggravating facts sustaining the intent are imperfectly pleaded, the defendant can be convicted of the assault alone.* § 297. On indictment fob minor offense theeb can BE CONVICTION OF MiNOE ONLY. Where an offense is, by law, made more highly punishable if committed upon a person of a particular class than if committed upon a person of another class, an indictment for the offense may be maintained, though it does not specify to which of the classes the injured person belongs; and upon a conviction on such an indictment, the milder punishment only will be awarded.^ And although the evidence prove the major offense, if the indictment charge only the minor, the defendant can only be convicted of minor.^ § 298. May be conviction of misdbmeanob on indict- ment FOE felony. At common law, for the reason that a defendant on trial for misdemeanor was entitled to cer- tain privileges (e. g., a special jury, a copy of the indict- ment, and counsel) which were not allowed to a defendant on trial for a felony, the rule was that a defendant could not be convicted of a misdemeanor on an indictment for a felony. Had such a conviction been permitted, then it would have been within the power of the prosecution state V. Johnson, 30 N. J. L. (1 first degree, by the Tennessee Act Vr.) 185. N. C— State v. Perkins, of 1832, ch. 22, this includes an 82 N. C. 681. OHIO — Stewart v. indictment for an assault and bat- State, 5 Ohio 242. S. C. — State v. tery; and upon failure of proof to Gaifney, Rice 431. TEX. — Reyn- warrant a conviction of felony, the olds V. State, 11 Tex. 20: VT. — defendant may be convicted of the State V. Coy, 2 Aik. 181; State v. misdemeanor. — State v. Bowling, Burt, 25 Vt. (2 Deane) 373; State 29 Tenn. (10 Humph.) 52. V. Reed, 40 Vt. 603. ENG.— R. v. 2 Com. v. Kennedy, 13 Mass. 584; Mitchell, 5 Cox C. C. 541, 2 Den. com. v. Blaney, 133 Mass. 571. C. C. 468, 12 Eng. Law & Eq. 588; 3 g^^^^ ^ ^^ gg R. V. Owen, 20 Q. B. D. 829. For other cases, see Kerr's 1 State v. Fielding, 32 Me. 585. Whart. Crim. Law, §§ 840, 1866. 2 See, infra, chapter on "Pleas," Indictment for an assault with division VI, last three sections intent to commit murder in the subd. 2. 340 CRIMINAL PEOCEDUEE. [298 to deprive the defendant, in a case of misdemeanor, of these privileges, by indicting him for a felony in which the misdemeanor was inclosed. This, however, could not be tolerated, and hence rose the common law rule pro- hibiting a conviction of misdemeanor on an indictment for felony.^ But when these privileges were allowed in felonies as well as misdemeanors, the reason for the rule failed; and the rule ceased to be regarded as peremp- tory.^ In some jurisdictions in this country the rule has never been in force, the reason for it not existing;^ in other jurisdictions the right to so convict is expressly given by statute.* On an indictment for rape, the defendant may now be convicted of assault and battery,'^ or of adultery," or, on the same charge, of incest where the indictment contains the proper averments;" or on an indictment for man- 1 See Dearsley's Grim. Proc. 67; London Law Times, Nov. 5, 1881, p. 11; R. V. Westbeer, Leech 14. 2 Com. V. Newall, 7 Mass. 245; Com. V. Roby, 29 Mass. (12 Pick.) 496, overruling Com. v. Cooper, 15 Mass. 345. See R. v. Bird, 2 Den. (N. Y.) 202, 217. 3 See Rogers v. People, 34 Mich.. 345; infra, §310. 4 See Com. v. Drum, 36 Mass. (19 Pick.) 479, and cases hereafter cited. 5 Ibid. So in other states. — Prldeville v. People, 42 111. 217; State v. Pen- nell, 56 Iowa 29, 8 N. W. 686; State V. Jay, 57 Iowa 164, 10 N. W. 343; Hall V. People, 47 Mich. 636, 11 N. W. 414. 6 Com. V. Bakeman, 131 Mass. 577, 41 Am. Rep. 248. No less adultery that it is rape, where the sexual intercourse is by a married man with an unmarried woman, or an unmarried man with a married woman. "The offenses are different in the nature of the wrong done, and in the facts which constitute them. Neither includes the other; and a defendant may be convicted of either without alle- gation or proof essential to the other. Carnal knowledge of a wo- man is the fact common to both; if It is with force against her will the crime is rape, and the fact that she is married is immaterial; if she is a married woman the crime is adultery, and the fact that it is by force is immaterial. That a man can not commit rape upon a married woman without also committing adultery, only shows that he commits both crimes by one act which includes all the elements of both." — Com. v. Bake- man, 131 Mass. 577, 41 Am. Rep. 248, citing State v. Sanders, 30 Iowa 582; Morey v. Com., 108 Mass. 433. 7 Com. V. Goodhue, 43 Mass. (2 Met.) 193; People v. Rowle, 2 Mich. N. P. 209. §299 INDICTMENT — STATING MINOK OFFENSE. 341 slaughter or murder there may be a conviction of as- sault and battery,* and on an indictment for murder the defendant may be convicted of an assault with intent to kill.» In New YorJc on an indictment for procuring an abor- tion of a quick child, which by statute is a felony, the prisoner may be convicted of the statutory misdemeanor of destroying a child not quick.^" Misdemeanor in felony: And we may now generally hold that it is not duplicity to inclose a misdemeanor in a felony. ^^ — But minoe offense must be accueatbly §299. - stated. In every case, however, the minor offense, to sus- tain a conviction for its commission, must be accurately See more fully Kerr's Wliart. Crijn. Law, § 2098. 8 KAN. — State v. O'Kane, 23 Kan. 244. MASS.— Com. v. Drum, 36 Mass. (19 Pick.) 479; Com. v. Griffin, 38 Mass. (21 Pick.) 523; Com. V. Hope, 39 Mass. (22 Pick.) 1, 7. MISS.— Scott V. State, 60 Miss. 268. NEB. — Denman v. State, 15 Neb. 138, 17 N. W. 347. TEX. — Green v. State, 8 Tex. App. 71 ; Peterson v. State, 12 Tex. App. 650. See, also, Kerr's Wliart. Crim. Law, §677. In such case, however, to sustain a conviction, "the assault must bo Included in the charge on the face of the Indictment, and also be part of the very act" presented as a felony. — R. v. Birch, 1 Den. 185. If we could conceive of a case of murder in which there was no as- sault (see R. V. Walkden, 1 Cox 282) then there could be no con- viction in such a case of an as- sault. But, in point of fact, there can be no murder without an assault; and this even is the case with homicide by poison taken by the deceased In ignorance of its nature. See Kerr's Whart. Crim. Law, § 805. 9 People V. M'Donnell, 92 N. Y. 657. 10 P e o p 1 e V. Jackson, 3 Hill (N. Y.) 92. See, infra, § 310. 11 Infra, § 310. In Georgia, Hill v. State, 53 Ga. 125. In Massachusetts, "feloniously" is made by statute unnecessary in all cases.— Stat. 1852, ch. 40, § 3. In Pennsylvania there may be a conviction of attempt on indict- ment for complete offense. — Rev. Act. 1860, p. 442. In Tennessee, Lacy v. State, 67 Tenn. (8 Baxt.) 401; Smith v. State, 70 Tenn. (2 Lea) 614. In Virginia the practice is the same. — Code, 1866, ch. ccvlil, § 27. The general common-law rule on this point in the United States will be considered under another head. Ir.fra, § 310, 342 CRIMINAL PROCEDURE. §300 stated.^ Thus, on an indictment for rape, there can be no conviction for fornication unless there be an aver- ment that the prosecutrix was not the defendant's wife.^ So there can be no conviction of an assault on an indict- ment for murder unless the indictment avers an assault.' The minor offense, also, must be an ingredient of the major; if simply collateral to the major, not forming part of it, there can be no conviction of such minor offense.* § 300. Not duplicity to couple successive statutory PHASES. Where a statute, as has already been observed,^ makes tvro or more distinct acts connected with the same * transaction indictable, each one of which may be consid- ered as representing a phase in the same offense, it has ' in many cases been ruled they may be coupled in one' count.^ Thus, setting up a gaming-table, it has been said, 1 See, infra, chapter on "Con- tempt," div. rv. 2 Com. V. Murphy, 84 Mass. (2 Allen) 163. In a leading English case, it was ruled that, in order to convict a prisoner of a felony, not a felony primarily charged in the indict- ment, it is necessary that the minor felony should be substan- tially included in the indictment. Thus, an indictment for burglary includes an indictment for house- breaking, and generally also for larceny, and the prisoner on this may be found guilty of one or other of these felonies. But in an indictment for burglary, and for breaking and enteri^ig a house and stealing, the prisoner can not be found guilty of breaking and enter- ing a house with intent to steal. — R. V. Reid, 2 Den. C. C. 98, 1 Eng. taw & Eq. 599. See Speers v. Com., 17 Gratt. (Va.) 570. 3 Scott V. State, 60 Miss. 268. See State V. Ryan, 15 Ore. 572, 16 Pac. 417. 4 R. V. V^atkins, 2 Moody 217. , 1 Supra, § 207. 2 Supra, § 287; infra, chapter on "Verdict," div. Ill; Whart. Crim. Ev., §§134, 138. CONN.— Barnes V. State, 20 Conn. 232; State V. Teahan, 50 Conn. 92. GA. — Hoskins v. Stato, 11 Ga. 92. IOWA— State v. Myers, 10 Iowa 448; State v. Harris, 11 Iowa 414; State V. Bi-annon, 50 Iowa 372; State V. House, 55 Iowa 466, 8 N. W. 307. LA.— State v. Palmer, 32 La. Ann. 565. ME. — State v. Nelson, 29 Me. 329. MASS.— Com. V. Hall, 86 Mass. (4 Allen) 305; Com. V. Nichols, 92 Mass. (10 Allen) 199; Com. v. Dolan, 121 Mass. 374; Com. v. Ashton, 125 Mass. 384; Com. v. Atkins, 136 Mass. 160. MINN.— State v. Gray, 29 Minn. 142, 12 N. W. 455. MO.— Murphy v. State, 47 Mo. 274; State V. Fancher, 71 Mo. 460. N. Y.— People V. Casey, 72 N. Y. 393; Read v. People, 86 N . Y. 381. OHIO— State v. Conner, 30 Ohio St. 405; Watson v. State, 39 Ohio § 300 INDICTMENT COUPLING SUCCESSIVE PHASES. 343 may be a distinct offense ; keeping a gaming-table and in- ducing others to bet upon it, may constitute a distinct offense ; for either unconnected with the other an indict- ment will lie f yet when both are perpetrated by the same person at the same time, they may be coupled in one count.* An indictment, also, for keeping and maintain- ing, at a place and time named, "a certain building, to-wit : a dwelling-house, used as a house of ill-fame, re- sorted to for prostitution, lewdness, and for illegal gam- ing, and used for the illegal sale and keeping of intoxi- cating liquors, the said building, so used as aforesaid, being then and there a common nuisance," may be sus- tained,^ and so of several successive statutory phases of making, forging, and counterfeiting, of causing and pro- curing to be falsely made, forged and counterfeited, and of willingly aiding and assisting in the said false making, forging, and coimterfeiting.® It is admissible, also, to charge that the defendant "administered, and caused to St. 123. ORE.— state v. Carr, 6 4 Hinkle v. Com., 34 Ky. (4 Ore. 133; State v. Bergman, 6 Ore. Dana) 518. 341. PA. — Com. V. Miller, 107 Pa. 6 State v. Adam, 31 La. Ann. St 276. R. I. — State v. Fowler, 13 717; Com. v. Ballon, 124 Mass. 26; R. I. 661; State v. Wood, 14 R. I. State v. Carver, 2 R. I. 285. 151. S. C. — State v. Smalls, 11 So as to advertising, exposing to S. C. 262. TBNN. — Ferrell v. State, sale, and selling lottery tickets. — 70 Tenn. (2 Lea) 25; Clemons v. State v. McWllliams, 7 Mo. App. State, 72 Tenn. (4 Lea) 23. TEX. — 99; Read v. People, 86 N. Y. 381; Thompson v. State, 30 Tex. 356; Com. t. Gillespie, 7 Serg. & R. Copping V. State, 7 Tex. App. 59. (Pa.) 469, 10 Am. Dec. 475. VT.— State V. Matthews, 42 Vt. 6 Supra, § 207; Kerr's Whart. 542; Sprouse v. Com., 81 Vt. 374. Crim. Law, §932. CAL.— People v. VA. — Leath v. Com., 32 Gratt. 873. Tomlinson, 35 Cal. 503. GA. — Hos- PED. — United States v. Hull, 4 kins T. State, 11 Ga. 92; Wingard McCr. C. C. 273, 14 Fed. 324; v. State, 13 Ga. 396. MASS.— Com. United States v. Ferro, 18 Fed. v. Grey, 68 Mass. (2 Gray) 501, 901. ENG. — R. V. Jennings, 1 Cox 61 Am. Dec. 476. MO. — State v. C. C. 88; R. V. Oliver, 8 Cox C. C. McCoUum, 44 Mo. 343. MONT. — 384, Bell C. C. 287; R. v. Yeadon, State v. Malish, 15 Mont. 509, 39 9 Cox C. C. 91; R. v. Bowen, 1 Pac. 739. N. H. — State v. Hastings, Den. C. C. 21. 53 N. H. 452. N. J.— State v Price, 3 See State v. Fletcher, 18 Mo. 11 N J. L. (6 Halst.) 203. OHIO— 425. Mackey v. State, 3 Ohio St. 363. 344 CRIMINAL PROCEDURE. §300 be administered," poison, etc.''^ "Obstruct or resist" process may be joined, so as to read "obstruct and re- sist" in the indictment.* It is also not duplicity to charge that the defendant did "offer to vend and to sell, and to cause to be furnished to and for one A. C, a certain paper, being a lottery ticket," etc.;* or that he did "tor- ment, maim, beat, and wound" an animal.^" And in an indictment on the Massachusetts Eev. Stats, c. 58, § 2, by which the setting up or promoting of any of the exhi- bitions therein mentioned, without license therefor, is prohibited, it is not duplicity to allege that the defendant ' ' did set up and promote ' ' such an exhibition.^^ In such cases the offenses are divisible, and a verdict may be had for either.^^ Where a statute requires a license from A. or B., the indictment following the statute must negative a license from either A. or B.^* S. C. — Jones v. State, 1 McMull. 236, 36 Am. Dec. 257. VT.— State V. Morton, 27 Vt. 310, 65 Am. Dec. 201. VA.— Angle v. Com., 2 Va. Gas. 231; Rasnick v. Com., 2 Va. Cas. 356. FED. — United States V. Armstrong, 5 Phil. R. 273, Fed. Cas. No. 14468. ENG.— R. Y. North, 6 Dow. & Ry. 143, 16 Eng. C. L. 258. As taking a narrower view, see State V. McCormack, 56 Iowa 585, 9 N. W. 916; State v. Haven, 59 Vt. 399, 9 Atl. 841. Conjunctive allegation neces- sary. — People V. Tomlinson, 35 Cal. 503; State v. Hill, 73 N. J. L. 77, 62 Atl. 936. But see Koetting v. State, 88 Wis. 502, 60 N. W. 822. T Ben V. State, 22 Ala. 9, 58 Am. Dec. 234. 8 Slicker v. State, 8 Eng. (13 Ark.) 397; State v. Locklear, 44 N. C. (1 Busbee) 205; supra, § 278. 9 Read V. People, 86 N. Y. 381. See Com. v. Atkins, 136 Mass. 160. 10 State V. Haskell, 76 Me. 399. 11 Com. V. Twitchell, 58 Mass. (4 Cush.) 74. 12 See Kerr's Whart. Grim. Law, §932; Whart. Crim. Ev., §154. See, however. State v. Bach, 25 Mo. App. 554. A neglect by supervisors of roads both to open and repair roads may be charged in one count of an indictment against them. — Edge V. Com., 7 Pa. St. (7 Barr) 275. Under a statute making it an offense to "send or convey" an in- decent letter, it is duplicity to charge "send and convey," the "sending" and "conveying" having different meanings. — Larison v. State, 49 N. J. L. 256, 259, 60 Am. Rep. 606, 9 Atl. 700, sed quaere. 13 Supra, § 290. 301 INDICTMENT JOINDER OF ARTICLES IN LARCENT. 345 § 301. Several articles can be joined in larceny. In all cases of larceny, and like offenses, several articles may be joined in a count, even though the articles belong to different owners,^ and the proof of the taking of either of which will s.ustain the indictment,^ though where a variety of articles are stolen at the same time and place, and from the same individual, it has been held that the steal- ing of such articles at the same time and place is only one offense, and must be so charged.* It has been even ruled that the same count may join the larceny of several dis- tinct articles, belonging to different owners, where the time and the place of the taldng of each are the same.* This, however, has been properly denied;^ and when ilND. — Furnace v. State, 153 OHIO — State v. Hennessey, 23 Ind. 93, 54 N. E. 441. IOWA-- State V. Congrove, 109 Iowa 66, 80 N. W. 227. MO.— State v. Mor- phin, 37 Mo. 373. ORE.— State v. Clark, 46 Ore. 140, 80 Pac. 101. TEX.— Wilson V. State, 45 Tex. 76, 23 Am. Rep. 602. W. VA. — Mounds- ville V. Fountain, 27 W. Va. 182. Property of different persons lo- cated in different places, the rule is different, though the thefts com- mitted in rapid succession in accordance with premeditated de- sign. — State V. Maggard, 160 Mo. 469, 83 Am. St. Rep. 483, 61 S. W. 184. See State v. Nash, 86 N. C. 250, 41 Am. Rep. 472. 2 Supra, §260; Whart. Grim. Ev., §132. KAN.— State v. Mc- Anulty, 26 Kan. 533. KY.— Less- lie V. Com., 82 Ky. 250. MASS.— Com. V. Williams, 56 Mass. (2 Cush.) 583; Com. v. Eastman, 68 Mass. (2 Gray) 76; Com. v. O'Connell, 94 Mass. (12 Allen) 451. MO.— Lorton v. State, 7 Mo. 55, 37 Am. Dec. 179; State v. Dan- iels, 32 Mo. 558. N. C— State v. Bishop, 98 N. C. 773, 4 S. E. 357. Ohio St. 339, 13 Am. Rep. 253. S. C. — State V. Johnson, 3 Hill 1; State V. Evans, 23 S. C. 209. TBNN.— State v. Williams, 29 Tenn. (10 Humph.) 101. VT.— State V. Cameron, 40 Vt. 555. Value in aggregate may be charged. — State v. O'Connell, 144 Mo. 387, 46 S. W. 175. See State V. Mjelde, 29 Mont. 490, 70 Pac. 87. In Maine it has been ruled that a count charging a larceny of bank bills each of a denomination and value stated, and of a pocket-book and knife, "of the goods, chattels, and money of J. S. K.," etc., con- tains a sufficient description of the property, and is not bad for du- plicity. — Stevens v. State, 62 Me. 284. 3 Ibid. 4 See Holies v. United States, 3 McAr. (D. C.) 370, 36 Am. Rep. 106; Smith v. State, 63 Ga. 168; Dodd V. State, 10 Tex. App. 370. 5 Com. V. Andrews, 2 Mass. 409; Casey, v. People, 72 N. Y. 393; State v. Thurston, 2 McMull. (S. C.) 382. 346 CRIMINAL PEOCEDUEE. 302 averred to be at distinct times, the count is unquestion- ably double.* §302. ■And so of ctjmulativb overt acts and in- tents AND AGENCIES. Laying several overt acts in a count for high treason is not duplicity,* because the charge con- sists of the compassing, etc., and the overt acts are merely evidences of it ; and the same as to conspiracy. A count in an indictment, charging one endeavor or conspiracy to procure the commission of two offenses, is not bad for duplicity, because the endeavor is the offense charged.^ The same rule exists where assaults and other offenses with several intents are charged.* It is so, as we have seen, where forging a note and forging an indorsement are joined.* It is admissible, also, to state cumulatively several weapons by which a wound has been inflicted;^ and those not proved may be rejected as surplusage.® Various means used in committing the offense may be joined without duplicity.'^ See Kerr's Whart. Grim. Law, §§ 1169, 1187. 6 State V. Newton, 42 Vt. 537. 1 Kelyng 8. 2 People V. Milne, 60 Cal. 71; People V. Hall, 94 Cal. 597; R. v. Fuller, 1 Bos. & P. 181, 126 Bng. Repr. 847; R. v. Bykerdike, 1 M. & Rob. 179, 2 Leach (Sd ed.) 916. 3 CAL.— People v. Milne, 60 Cal. 71. MASS.— Com. v. McPike, 57 Mass. (3 Cush.) 181, 50 Am. Dec. 727. MINN.— State v. Dineen, 10 Minn. 407. N. H. — State v. Moore, 12 N. H. 42. N. Y. — People v. Curl- ing, 1 John. 320. ENG.— R. v. Davis, 1 Car. & P. 306, 12 Eng. C. L. 183; R. v. Smith, 4 Car. & P. 569, 19 Eng. C. L. 653; R. v. Batt, 6 Car. & P. 329, 25 Eng. C. L. 458; R. V. Gillow, 1 Moody C. C. 85;R. v. Hill, 2 Moody C. C. 30; R. v. Cox, R. & R. 362; R. v. Dawson, 20 Law J. Rep. (N. S.) M. C. 102, 15 Jur. 159, 1 Eng. Law & Eg. 589. See Kerr's Whart. Crim. Law, §§155, 156; Whart. Crim. Ev., §135. 4 Sprouse v. Com., 81 Va. 374. B GA.— Williams v. State, 59 Ga. 401. N. T.— People v. Casey, 72 N. Y. 398. OHIO— State v. Jack- son, 39 Ohio St. 37. TEX.- Gon- zales V. State, 5 Tex. App. 584. See, also, cases cited supra, § 261. estate v. Blan, 69 Mo. 317; United States r. Patty, 9 Bias. C. C. 429, 2 Fed. 664; supra, §§ 200, 261. T Com. V. Brown, 80 Mass. (14 Gray) 419; State v. McDonald, 37 Mo. 13; People v. Casey, 72 N. Y. 393. See Whart. Crim. Ev., §§ 134, 138. §§ 303, 304 INDICTMENT — ^DUPLICITY CUBED. 347 § 303. And so of double batteries, libels, ob SALES. A man may be indicted for the battery of two or more persons in the same count,^ or for libel upon two or more persons, where the publication is one single act -^ or for selling liquor to two or more persons,* or in sev- eral forms,* without rendering the count bad for du- plicity. And it is said that burning several houses by one fire can be joined.^ Whether the killing of tioo persons hy one act is one offense is hereafter discussed.® § 304. Duplicity is usually cubed by veedict. Du- plicity, in criminal cases, may be objected to by special demurrer,^ perhaps by general demurrer; or the court, 1 MASS. — Com. V. O'Brien, 107 Mass. 208. R. I. — Kenney v. State, 5 R. I. 385. TENN.— Fowler v. State, 50 Tenn. (3 Helsk.) 154. ENG. — R. V. Benfield, 2 Burr. 983, 97 Eng. Repr. 665; R. v. Giddins, Car. & M. 634, 41 Eng. C. L. 344; 2 Str. 890; 2 Ld. Raym. 1572. Contra: State v. McClintock, 8 Iowa 203. And so of a double shooting or stabbing. — Shaw v. State, 18 Ala. 547; Ben v. State, 22 Ala. 9, 58 Am. Dec. 234; Com. v. McLaughlin, 66 Mass. (12 Cush.) 615; R. v. Scott, 4 Best & S. 368, 116 Eng. C. L. 366. 2 State V. Lea, 41 Tenn. (1 Coldw.) 177; State v. Womack, 47 Tenn. (7 Coldw.) 508; State v. Atchison, 71 Tenn. (3 Lea) 729, 31 Am. Rep. 663; R. v. Jenour, 7 Mod. 400; R. v. Benfield, 2 Burr. 983, 97 Eng. Repr. 665. So where two horses are over- driven in one team. — People v. Tindale, 10 Abb. Pr. N. S. (N. Y.) 374. 3 State v. Anderson, 3 Rich. (S. C.) 172; State v. Bielby, 21 Wis. 204; Kerr's Whart. Crim. Law, § 1814. For a cognate case, Walter v. Com., 6 Weekly Notes Cases (Pa.) 389. An indictment for selling spirit- ous liquors without a license charged that the defendant, at his storehouse and dwelling-house in Pennsboro, in said county, did sell, etc.; and it was held on motion to .quash, that it was not intended to charge two distinct sales at differ- ent places, but rather to describe the store and dwelling-house as constituting one building, and one and the same place; and, there- fore, there were not two distinct offenses charged in the same count. — Conley v. State, 5 W. Va. 522. Compare: Kerr's Whart. Crim. Law, § 1814. 4 Osgood V. People, 39 N. Y. 449. 5 Woodford v. People, 62 N. Y. 117, 20 Am. Rep. 464. 6 Infra, chapter on "Pleas," div. VI, subd. 3. 1 People V. Quvise, 56 Cal. 396; People V. DeCoursey, 61 Cal. 134; People V. Clement, 4 Cal. Unrep. 348 CRIMINAL PEOCBDUEE. §304 in general, upon application, may quash the indictment; but the better view is that it can not be made the sub- ject of a motion in arrest of judgment,^ or of a writ of error,* although it seems to be otherwise when there is a confusion of averments;* and it is in any view cured by a verdict of guilty^ as to one of the offenses, and not guilty as to the other,® and by a nolle prosequi as to one member of the counts But when two repugnant offenses, requiring different punishments, are introduced in one count, judgment may be arrested.® 493, 35 Pac. 1022; State v. Good- State V. Johnson, 3 HiU 1. . win, 33 Kan. 538, 6 Pac. 899; EUis< V. Com., 78 Ky. 130. 2 Common-law rule was that mo- tion in arrest of judgment was a matter of right, and might be made at any time after conviction and before sentence. The Califor- nia Penal Code makes but one restriction. If the defendant fail to demur to the information he waives his right to move in arrest of judgment upon any of the grounds mentioned in § 1004 of California Penal Code (see Cal. Pen. Code, §1185). "Like a com- plaint in a civil case, which states no cause of action, a fatal defect in an indictment may be taken advantage of at any stage of the proceedings, unless the right to do so is restricted by the Penal Code. The Penal Code, as well as the common law, permits this motion after a plea of guilty, and even authorizes the court to arrest the judgment on its own view of any of the defects specified in the code, without motion." — People v. Clement, 4 Cal. Unrep. 493, 35 Pac. 1022. 3 CAL.— People v. Shotwell, 27 Cal. 394. IND.— Simmons v. State, 25 Ind. 331. MASS.— Com. v. Tuck, 37 Mass. (20 Pick.) 356. S. C.-- TENN. — State v. Brown, 27 Tenn. (8 Humph.) 89; Scruggs v. State, i 66 Tenn. (7 Baxt.) 38; Forrest v. State, 81 Tenn. (13 Lea) 103.' TEX. — Tucker v. State, 6 Tex. App. 251. FED. — United States v. Bay- aud, 21 Blatchf. C. C. 217, 287, 16 Fed. 376, 23 Fed. 721. ENG.— Nash V. R., 9 Cox C. 0. 424, 4 B. & S. 935. 4KY. — Com. V. Powell, 71 Ky. (8 Bush) 7. N. H.— State v. Fow- ler, 28 N. H. 184. S. C— State v. Howe. 1 Rich. 260. WASH.— Hay- wood V. Territory, 2 Wash. Ter. 180, 2 Pac. 189. ENG.— R. v. Cook, 1 R. & R. 176. See, also, cases cited supra, §292. 6 As to curing by verdict, see, infra, chapter on "Pleas," div. V, subd. 2. estate v. Miller, 24 Conn. 522; State v. Merrill, 44 N. H. 624; R. v. Guthrie, L. R. 1 C. C. 241. 7 State V. Buck, 59 Iowa 382, 13 N. W. 342; State v. Merrill, 44 N. H. 624. 8 Cases cited infra, §305; Com. V. Holmes, 119 Mass. 198, and see State V. Nelson, 8 N. H. 163, modi- fled by State v. Snyder, 50 N. H. 150. §305 INDICTMENT ^REPUGNANCY, WHAT IS. 349 XIII. Repugnancy. % 305. WhEBE MATEBIAIi AVERMENTS AEE EEPXJGNANT, IN- DICTMENT IS BAD. When one material averment in an in- dictment is contradictory to another the "w^hole is bad;^ but repugnancy in an immaterial part of the indictment 1 2 Hawk., ch. 25, § 62. IND.— Keller v. State, 51 Ind. Ill; Mur- phy V. State, 106 Ind. 96, 55 Am. Rep. 722, 5 N. B. 767. MASS.— Com. V. Liawless, 101 Mass. 32. MO. — State v. Lawrence, 178 Mo. 350, 77 S. W. 497. VT.— State v. Haven, 59 Vt. 399, 9 Atl. 841. ENG.— R. V. Harris, 1 Den. C. C. 461, T. & M. 177. Charging act as officer of non- existent office, bad for repugnance. — Munzon v. State, 40 Tex. Cr. Rep. 457, 50 S. W. 949. Charging shooting and cutting with revolver and some other in- strument, not repugnant. — Suther- lin V. State, 148 Ind. 695, 48 N. B. 246. Commission of offense at B. and "at said W." being alleged, and W. not having been before men- tioned, indictment bad for repug- nancy. — Com. V. Pray, 30 Mass. (13 Pick.) 359. Copulative "and" uniting repug- nant clauses renders indictment bad. — State v. Bracken, 152 Ind. 565, 53 N. E. 838 ; Taylor v. State, 74 Miss. 544, 21 So. 129. See State V. McCollum, 44 Mo. 343. Fuil name and initials of accused In different parts of indictment does not constitute repugnance, even though In the latter connec- tion it is averred that the Chris- tian name is unknown.^— Harrison V. SUte, 144 Ala. 20, 40 So. 568. Impossible date charged, objec- tion can not be taken after verdict. —Conner v. State, 25 Ga. 515, 71 Am. Dec. 184. July 1892 and July 1902 are re- pugnant. — Hickman v. State, 44 Tex. Cr. Rep. 533. 72 S. W. 587. "B." and "B. Sr." used inter- changeably does not render indict- ment repugnant. — State v. Simp- son, 166 Ind. 211, 76 N. E. 544, 1005. La Pendergrass and Mr. Pender- grass does not render indictment repugnant. — ^Read v. State, 63 Ark. 618, 40 S. W. 85. M. E. Smith Treasurer of the City, naming the municipality, and the instrument being "N. E. Smith, Treasurer," not repugnant. — State V. Kroeger, 47 Mo. 552. Not bad for repugnancy where there is sufficient matter alleged to indicate the crime and the person charged therewith. — Selby v. State, 161 Ind. 667, 69 N. E. 463. Repugnancy has been held to exist where an Indictment charged the offense to have been com- mitted in November, 1801, and in the twenty-fifth year, of American independence (State v. Hendricks, 1 N. C. 532, Com. & N. Conf. Rep., § 639) ; charging that on the 4th day of April, 1873, being Sunday, kept open a saloon in violation of statute, the 4th being Friday (Werner v. State, 51 Ga. 426; Hoover v. State, 56 IVfd. 584); al- leging offense to have been com- mitted on different days (State v. Hendricks, 1 N. C. 532, Com. & N. 350 CRIMINAL PBOCEDTJBE. §305 does not render it bad,^ sucli as an impossible date in an immaterial part of the indictment, wbicli may be cor- rected at any time wlien the date does not enter into the essence of the offense charged,* or it may be rejected as surplusage.* Thus, to adopt one of the old illustra- tions, if an indictment charge the defendant with having forged a certain writing, whereby one person was bound to another, the whole will be vicious, for it is impossible that any one can be bound by a forgery.^ A relative pronoun, also, referring with equal uncer- tainty to two antecedents will make the proceedings bad in arrest of judgment. But, as is elsewhere seen, every fact or circumstance laid in an indictment, which is not a necessary ingredient in the offense, may be rejected as surplusage.* Conf. Rep., § 639) ; averring an im- possible date (Markely v. State, 10 Mo. 291. Contra: McMath v. State, 55 Ga. 303; Jones v. State, 55 Ga. 625) ; fixing time of offense thirteen years before the state be- came such, and forty years before the enactment of the statute cre- ating the offense (State v. O'Don- nell, 81 Me. 272, 17 Atl. 66), or 800 years before date of indictment (Serpentine v. State, 2 Miss. (1 How.) 256). 2 "C r u s h i n g, fracturing and breaking the skull," in an indict- ment charging forcibly striking and beating upon the body a named person, is not bad for re- pugnance, because it is not neces- sary to describe the part of the body upon which the injury In- flicted. — State V. Ferguson, 162 Mo. 668, 63 S. W. 101. 3 state V. Pierre, 39 La. Ann. 915, 3 So. 60. 4 Com. V. Pray, 30 Mass. (13 Pick.) 359. 5 3 Mod. 104; 2 Show. 460. See Mills V. Com., 13 Pa. St. 634. 6 Supra, §§200, 302, 303; Whart. Grim. Ev., §§ 138 et seq.; 1 Chitty on Pleading 334, 335; State v. Cas- sety, 1 Rich. (S. C.) 91; State v. Smolls, 11 S. C. 262; R. v. Crad- dock, 2 Den. C. C. 31, T. & M. 361. A general verdict of guilty on an indictment for procuring a miscar- riage, in. which one count averred quickness and the other merely pregnancy, and one count averred the abortion of the mother and the other of the child, the Supreme Court refused to reverse on the ground of repugnancy. — Mills v. Com., 13 Pa. St. 634. An indictment charging an as- sault with tiree weapons — a pair of tongs, a hammer, and an axe- handle — is not void for repug- nancy. — State v. McDonald, 67 Mo. 13; supra, §§200, 261. § § 306, 307 INDICTMENT TECHNICAL AVERMENTS. 351 Disjunctive statements inadmissible has been else- where seen/ Where counts are repugnant a general verdict can not be sustained ;* though it is otherwise when they represent varying phases or stages of the same offense.® XIV. Technical Averments. §306. In treason, "ikaitoeotjsly" must be used. In indictments for treason, the offense must be laid to have been committed traitorously; but if the treason itself be laid to have been so committed, whether it consists in levying war against the supreme authority or other- wise, it is not necessary to allege every overt act to have been traitorously committed.^ §307. "Malice aforethought" essential to murder. In an indictment for murder, it must be alleged that the offense was committed of the defendant's malice afore- thought, words which can not be supplied by the aid of any other; and if this averment be omitted, or if the defendant be merely charged with killing and slaying the deceased, the offense will amount to no more than man- slaughter.i But the want of these words in an indict- ment for an assault with intent, to kill will not be fatal on arrest of judgment.^ 7 Supra, §§ 206, 278. 1 Cranboum's Case, 4 St. Tr. Where one count charges the 701; Salk. 633; East P. C. 116. offense to have been committed in 1 1 Hale 450, 466; East P. C. 345; one county and another count Kerr's Whart. Crim. Law, §§ 650 charges it in another, the general et seq.; McElroy v. State, 14 Tex. rule is, that the counts are repug- App. 235. nant, and the indictment will be ^ killing by misadventure, or quashed on motion, or the prose- chance medley, is described to cutor be compelled to elect which ]ia,ve been done "casually and by he will proceed on. — State v. John- misfortune, and against the will of son, 50 N. C. (5 Jones) 221. tiig defendant." See State v. Ra- 8 Infra, chapter on "Verdict," bon, 4 Rich. (S. C.) 260. div. I. 2 Cross v. State, 55 Wis. 261, 9 Ibid.; infra, §§335 et seq.; 262, 12 N. W. 425. See Kerr's State V. Mallon, 75 Mo. 355. V»'hart. Grim. Law, § 843. 352 CRIMINAL PEOCEDUEE. §§ 308, 309 § 308. ' ' Struck ' ' usually essential to wound. Where the death arises from any wounding, beating, or bruising, it has been said that the word "struck" is essential, and that the wound or bruise must be alleged to have been mortal.^ §309. "Feloniously" ESSENTIAL TO FELONY. The word "feloniously" is at common law essential to all indict- ments for felony, whether at common law or statutory,^ although the reason for the term being purely arbitrary ,2 it is no longer necessary unless prescribed by statute, or unless describing a common law or statutory felony.^ But in all common law felonies it is, at common law, essential. Thus, in an indictment for murder, it is at common law requisite to state as a conclusion from the facts pre- viously averred that the said defendant, him, the said C. D., in manner and form aforesaid, feloniously did kill and murder.* 1 See Kerr's Wliart. Grim. Law, §1 651 et seq.; 2 Hale 184; 2 Inst. 319; 2 Hawk., ch. 23, §82; Cro. Jac. 635; 5 Co. 122; Lad's Case, 1 Leach 112. 1 ARK. — Edwards v. State, 25 Ark. 444. DEL.— State v. Brister, 1 Houst. 150. IND.— Scudder v. State, 62 Ind. 13. MISS.— Bowler V. State, 41 Miss. 570; Wile v. State, 60 Miss. 260. MO. — State v. Murdock, 9 Mo. 739; State v. Gil- bert, 24 Mo. 380. N. C— State v. Roper, 88 N. C. 656. PA.— Mears V. Com., 2 Grant 385; Com. v. Weidenhold, 112 Pa. St. 684; 4 Atl. 345. ENG.— R. v. Gray, L. & C. 365. It has been held, however, that when a statute creating a felony- does not use the term "feloni- ously," the latter term may be omitted in the indictment. — People V. Ollvera, 7 Cal. 403; Jane T. Com., 60 Ky. (3 Mete.) 18. The word "feloniously" may be sometimes dispensed with by stat- ute, either expressly or by implica- tion.— Butler v. State, 22 Ala. 43; Peek V. State, 21 Tenn. (2 Humph.) 78. 2 The term was originally intro- duced in order to exclude the offender from his clergy (R. v. Clerk, 1 Salk. 377, 91 Eng. Repr. 328), and is not essential to an indictment (or manslaughter. See, as to gradual disappearance of dis- tinction, Kerr's Whart. Crim. Law, §26. 3 See Steph. Cr. Law, §§ 56, 57 et seq.; State v. Felch, 58 N. H. 1. 4 Kerr's Whart. Crim. Law, §§651 et seq.; 1 Hale 450, 466; 4 Bl. 307; Yel. 206; Cain v. State,' 18 Tex. 387. "Feloniously" is not essential to an assault and battery with intent to kill, it has been held (Stout v..' Com., 11 Serg. & R. (Pa.) 177; §310 INDICTMENT " FELONIOUSIiY, " SURPLUSAGE WHEN. 353 §310. ■WOED "feloniously" CAN BE REJECTED AS SURPLUSAGE. We havG already seen that matter which is merely surplusage is not required to be stated in an indictment. '^ Mere surplusage does not vitiate an indict- ment,^ and where it occurs, if the offense is otherwise sufficiently charged,* may be stricken out* or disre- State V. Scott, 24 Vt 27), though elsewhere the omission has heen held fatal. See Curtis v. People, 1 111. (1 Breese) 199; Scudder v. State, 62 Ind. 13; Mears v. Com., 2 Grant (Pa.) 385, and see Kerr's Whart. Grim. Law, § 843. Com. V. Wright, 166 Mass. 174, 44 N. B. 129. MO.— State v. Meyers, 99 Mo. 107, 12 S. W. 516; City of St. Louis V. Lee, 8 Mo. App. 599. NEB.— State v. Kendall, 38 Neb. 817, 57 N. W. 525; Blodgett v. State, 50 Neb. 121, 69 N. W. 751. [n all cases of mayhem, the N. H. — State v. Bailey, 31 N. H. words feloniously and did maim are requisite. — 1 Inst. 118; 2 Hawk., ch. 23, §§15, 16, etc.; 2 Hawk., ch. 25, § 55, State v. Brown, 60 Mo. 141; Canada v. Com., 22 Graft. (Va.) 899, Com. v. Reed, 3 Am. L. Jour. 140; Kerr's Whart. Crim. Law, § 772. 521; State v. Webster, 39 N. H. 96. N. C— State v. Finer, 141 N. C. 760, 53 S. E. 305. TENN.— State v. City of Bellville, 66 Tenn. (7 Baxt.) 548. i ALA. — Lodano v. State, 25 Ala. 64. ARK.— Downs v. State, 60 Ark. 521, 31 S. W. 149 ("upon" — In Massachusetts it is said used a second time in indictment that the offense is not a felony. — for rape) . ILL. — Snell v. State, 29 Com. V. Newell, 7 Mass. 244. 111. App. 470. IND.— Weaver v. In Georgia, feloniously is said State, 8 Ind. 410 (Indictment for to be necessary in case of castra- misdemeanor averring accused a tion, only. — ^Adams v. Barrett, 5 "person of color") ; Botkins v. Ga. 404. 1 Supra, § 200. 2 ALA. — Lodano v. State, 25 Ala. 64. CAL. — People v. Flores, 64 Cal. 426, 1 Pac. 498. N. Y.— Daw- son V. People, 25 N. Y. 403 ; Crich- ton V. People, 40 N. Y. (1 Keyes) 341, 1 Abb. App. Dec. 467, 1 Cow. Cr. Rep. 454, 6 Park. Cr. Rep. 366; Dolan V. People, 6 Hun 503, State, 36 Ind. App. 179, 75 N. E. 298 ("suffer, allow and permit," where statute said "permit") ; State V. Dawson, 38 Ind. App. 483, 78 N. E. 352. KY. — Travis v. Com., 96 Ky. ,77, 27 S. W. 863 ("of Ken- tucky" In the phrase "lawful money of the United States of Kentucky"). LiA. — State v. Jack- son, 106 La. 189, 30 So. 309. ME. — affirmed 64 N. Y. 485; La Beau v. State v. Hatch, 94 Me. 58, 46 Atl. People, 33 How. Pr. 68, 6 Park. Cr. 796. MD.— State v. Mercer, 101 Rep. 385; Mackesey v. People, 6 Md. 535, 61 Atl. 220. MASS.— Com. Park. Cr. Rep. 117. W. VA.— State v. Tuck, 37 Mass. (20 Pick.) 356; V. Howes, 26 W. Va. 110. Com. v. Hope, 39 Mass. (22 Pick.) 3 CONN. — State v. Corrigan, 24 1; Com. v. Squires, 42 Mass. (1 Conn. 286. IND.— Selby v. State, Mete.) 258; Com. v. Penniman, 49 161 Ind. 667, 69 N. E. 463. MASS.— Mass. (8 Mete.) 519; Eastman v. I. Crim. Proc. — 23 354 CRIMINAL PROCEDURE, §310 garded.^ Hence, if in an indictment an act be charged to have been done with a felonious intent to commit a crime, and it appears upon the face of the indictment that the crime, though perpetrated, would not have amounted to a felony, the word felonious, being repug- nant to the legal import of the offense charged, may be rejected as surplusage.® Com., 70 Mass. (4 Gray) 416; Com. V. Murphy, 65 Mass. (11 Cush.) 472; Com. v. Keefe, 73 Mass. (7 Gray) 332; Com. v. Farren, 91 Mass. (9 Allen) 489. MO.— State V. Edwards, 19 Mo. 674 ("with in- tent" rejected as surplusage) ; State V. Leonard, 22 Mo. 449; State V. Inks, 135 Mo. 678, 37 S. W. 942; State V. McCoy, 12 Mo. App. 589. NEB.— State v. Kendall, 38 Neb. 817, 57 N. W. 525; Hurlburt v. State, 52 Neb. 428, 72 N. W. 471. NEV. — State v. Johnson, 9 Nev. 175 (kill "and murder"). N. H.— State V. Bailey, 31 N. H. (11 Fost.) 521; State v. Webster, 39 N. H. 96. N. J. — State V. Cannon, 72 N. J. L. 46, 60 Atl. 177. OHIO— Turner v. State, 1 Ohio St. 422. ORE.— State V. Lee Ping Bow, 10 Ore. 27 (steal- ing from "and on" the person). PA. — Com. V. Goldsmith, 12 Phlla. 632, 35 Leg. Int. 420 (as "and divers other persons," "and divers other goods"). S. C. — State V. Cassety, 1 Rich. L. 90 ("and divers other persons") ; State v. Jefflcoat, 54 S. C. 196, 32 S. E. 298. TEX.— Rivers v. State, 10 Tex. App. 177 ("him the said") ; Segars V. State, (Tex. Cr. Rep.) 51 S. W. 398; Clark v. State, 41 Tex. Cr. Rep. 641, 56 S. W. 621; Rocha v. State, 43 Tex. Cr. Rep. 169, 63 S. W. 1018 (kill "and murder"). VA. — Laziere v. Com., 10 Gratt. 78 ("said" 14th, the 14th not be- fore mentioned). After verdict may be rejected. — United States v. Larkin, 4 Cr. C. C. 617, Fed. Cas. No. 15561. Continuando clause may be re- jected as surplusage, where the offense charged is not a contin- uing one, and the offense Is other- wise sufficiently charged. — Eggart V. State, 40 Fla. 527, 25 So. 144. Carelessly Inserted words ren- dering indictment for perjury senseless may be rejected. — Com. V. Wright, 166 Mass. 174, 44 N. B. 129. Misspelled word In surplusage does not affect indictment. — State V. Homsby, 8 Robt. (La.) 554, 41 Am. Dec 305. As to misspelled words and cler- ical errors generally, see, post, §322. Surplusage connected with the offense charged may not be stricken out or disregarded. — State V. Samuels, 144 Mo. 68, 45 S. W. 1088. B State V. Samuels, 144 Mo. 68, 45 S. W. 1088; State v. Ameker, 73 S. C. 330, 53 S. E. 484. 6 Whart. Crim. Ev., § 148; 2 East P. C. 1028; Cald. 397. D. C— Davis V. United States, 16 App. D. C. 442. IND.— State v. Sparks, 78 Ind. 166. MASS.— Com. V. Philpot, 130 Mass. 59. N. Y. — People v. Jackson, 3 Hill 92; People v. White, 22 Wend. §310 INDICTMBNT — ^FELONY OHABGED, CONVICTION. 355 Where a count on its face is for a complete felony, however, it has been doubted whether a conviction can be had for the constituent misdemeanor. In England, the rule at common law was that such a conviction could not be had, the reason being, that if a misdemeanor be tried under an indictment for a felony, the defendant loses his right to a special jury and a copy of the bill of indictmenc.'' In this contry, though the reason fails, the principle that under an indictment for a felony there can, at common law, be no conviction for a misdemeanor, has been followed in several of the states, among others Massachusetts,* in Indiana,* in Tennessee,*" in Mary- land,*^ and in Louisiana.*^ In New York,** Pennsylvania,** 175; Lohman v. People, 1 N. Y. 379, 49 Am. Dec. 340. OHIO— Hess V. State, 5 Ohio 1. PA. — Com. v. Gable, 7 Serg. & R. 423; Hackett V. Com., 15 Pa. St. 95; Staeger v. Com., 103 Pa. St. 469. Contra: Starkle's C. P. 169; n. r. DEL. — State v. Darrah, 1 Houst 112. LA. — State v. Flint, 33 La. Ann. 1238. MD. — Black v. State, 2 Md. 376. N. H.— State v. Pletch, 58 N. H. 1. N. C— SUte v. Ed- wards, 90 N. C. 710. See, also, supra, § 298. And so of "knowingly." — Com. v. Squire, 42 Mass. (1 Mete.) 258; Com. V. Farren, 91 Mass. (9 Allen) 489. 7 3 Salk. 193; 2 Hawk., ch. 47, § 6; 1 Chitty 0. L. 251, 639; R. v. Gisson, 2 Car. & K. 781, 61 Eng. C. L. 779; R. v. Walker, 6 Car. & P. 657, 25 Eng. C. L. 624; R. v. Reld, 2 Den. C. C. 88; 2 Eng. Law & Eq. 473; R. v. Cross, 1 Ld. Raym. 711, 91 Eng. Repr. 1374; R. V. Woodhall, 12 Cox C. C. 240. See, supra, §§ 286, 287. , Now, however, the statute of 1 Vict., eh. 85, § 11 (Lord Den- man's Act) enables conviction to be had for a constituent misde- meanor. 8 Com. v. Newell, 7 Mass. 245. This has been corrected by stat- ute. — Com. V. Drum, 36 Mass. (19 Pick.) 479; Com. v. Scannel, 65 Mass. (11 Gush.) 547. See, supra, §298. 9 state V. Kennedy, 7 Blackf. (Ind.) 233; Wright v. State, 5 Ind. 527. 10 State V. Valentine, 14 Tenn. (6 Yerg.) 533. 11 Black V. State, 2 Md. 376; afilrmed in Barber v. State, 50 Md. 161. Though see Burke T. State, 2 Har. & J. 426; State v. Sutton, 4 Gill 494. See, also, supra, § 296. 12 State V. Flint, 33 La. Ann. 1238. 13 Lohman v. People, 1 N. Y. 379, 39 Am. Dec 340; People v. Jackson, 3 Hill (N. Y.) 92; People V. White, 22 Wend. (N. Y.) 175. See, supra, § 298. 14 Hunter v. Com., 79 Pa. St 503, 21 Am. Rep. 83. See Com. v. Gable, 7 Serg. & R. (Pa.) 43.3, and Kerr's Whart. Crim. Law, § 675. 856 CRIMINAL PROCEDURE. §3il Vermont,^^ New Jersey/® Ohio," North Carolina,^* South Carolina/® Michigan,-" and Arkansas,^^ it has been held that the English reason ceasing, the rule itself ceases. In most States this latter position is now established by statute, if not by common law.^^ § 311. In such case conviction" may be had of ATTEMPT. Attempts, by the statutes of England and most of the United States, are made substantive offenses, even where they do not exist as such at common law. And by the same statutes, the jury in most instances — even in indictments for felony — may convict of the attempt.^ On an indictment triable exclu- sively in the Oyer and Terminer, in which the defendant can not be examined as a witness, he can not be convicted of a misde- meanor, in which he could be examined as a witness. See Com. V. Harper, 14 Weekly Notes, Cas. (Pa.) 10. 15 State V. Coy, 2 Aiken (Vt.) 181; State v. Wheeler, 3 Vt. 244, 23 Am. Dec. 212; State v. Scott, 24 vt. 129. 16 State V. Johnson, 30 N. J. L. (1 Vr.) 185. 17 state, V. Hess, 5 Ohio 1; Stew- art V. State, 5 Ohio 242. 18 State V. Watts, 82 N. C. 656. See, however. State v. Upchurch, 31 N. C. (9 Ired.) 455; State v. Durham, 72 N. C. 747. 19 State V. Gaffiney, Rice (S. C.) 431; State v. Wimberly, 3 McC. (S. C.) 190. 20 Rogers V. People, 34 Mich. 345. 21 Cameron v. State, 13 Ark. (8 Eng.) 712. 22 Supra, §158; Whart. Crim. Ev., §148; Com. v. Squire, 42 Mass. (1 Met.) 258; Com. v. Scan- nel, 65 Mass. (11 Cush.) 547. So in Minnesota, State v. Crummey, 17 Minn. 72. in Iowa, State v. McNally, 32 Iowa 580. In North Carolina. — State v. Pur- die, 67 N. C. 26, 326. See State v. Upchurch, 31 N. C. (9 Ired.) 455. In Texas. — Jorasco v. State, 6 Tex. App. 238. 1 Kerr's Whart. Crim. Law, § 212, and see, infra, chapter on "Verdict," divs. Ill, IV, as to ver- dict. — Burke v. State, 74 Ala. 399. An indictment for arson charged that the defendants "feloniously, wilfully, and unlawfully" set fire to, burned, and consumed a cer- tain building used as a brewery for the manufacture of beer. It was held that the indictment was defective in not alleging that the burning was malicious. — Kellen- beck V. State, 10 Md. 431, 69 Am. Dec. 166. Supra, § 285. Where a statute makes criminal the doing of the act "wilfully and maliciously," it is not sufficient for the indictment to charge that it was done "feloniously and un- lawfully," or feloniously, unlaw- fully and wilfully; these latter terms not being synonymous, equivalent, of the same legal im- port, or substantially the same as "wilfully and maliciously." — State v. Gove, 34 N. H. 510; though see. §§ 312-314 indictment technical averments. 357 §312. "Ravish" and "fokcibly" aee essential to RAPE. In indictments of rape, the words "feloniously rav- ished" are essential, and the word "rapuit" is not sup- plied by the words "carnaliter cognovit";^ and it seems that the latter words are also essential in indictments,^ though the contrary has been ruled in the case of an appeal.^ The usual course in an indictment for rape is to aver that it was committed forcibly, and against the will of the female, and therefore it would not be safe to omit the averment,* though in Pennsylvania the omission was held not to be fatal, in a case where ravish and carnally know were introduced.® In an indictment for an unnatural crime, the descrip- tive words of the statute taking* away clergy, must be used ; and it is not sufficient to say contra naturae ordinem rem habuit veneream et carnaliter cognovit.'' §313. "Falsely" ESSENTIAL TO PEKJUEY. In an indict- ment for perjury, it is necessary to charge that the defen- dant wilfully and corruptly swore falsely.^ But it is not necessary in forgery.^ §314. "BxJKGLABIOtrSLY" ESSENTIAL TO BXJEGLABT. In burglary the essential words are "feloniously and bur- glariously broke and entered the dwelling-house, in the night time" ; and the felony intended to be committed,* or supra, § 285; Kerr's Whart. Crim. Gray) 489; Harman v. Com., 12 Law, § 772. Serg. & R. (Pa.) 69, and see, for 1 1 Hale 628; 2 Hale 184; 1 Inst, fuller discussion, Kerr's Whart. 190; 2 Inst. 180; State v. Meinhart, Crim. Law, § 743. 73 Mo. 562; Gougleman v. People, 6 5 Eliz., ch. 17, 3, 4; W. & M., 3 Park. Cr. Rep. (N. Y.) 15. ch. 9, § 2; Fost. 424; Co. Ent. 351; 2 1 Hale 632; 3 Inst. 60; Co. Lit. 3 Inst. 59; 1 Hawk., ch. 4, § 2. 137; 2 Inst. 180. t East P. C. 480; 3 Inst. 59. 3 11 H. 4, 13; 2 Hawk., ch. 23, i See fully Kerr's Whart. Crim. §79; Staun. 81. Law, §1550. 4 State V. Jim, 12 N. C. (1 Dev.) 2 State v. McKieman, 17 Nev. 142; Kerr's Whart. Crim. Law, 224, 30 Pac. 831. § 743. 1 Failure to allege property of 5 Com. V. Fogerty, 70 Mass. (8 another was intended to be stolen. S58 CEIMtNAIi PEOCEDXntK. §§ 315, 316 actually perpetrated, must also be stated in technical terms.2 But "burglariously" is not necessarily in statu- tory housebreaking.' § 315. "Take and cabby away" essential tolabceny. In larceny, the words feloniously took and carried away the goods,^ or took and led away the cattle, are essential. "The property of" is also essential.^ These terms are also requisite in statutory indictments for embezzlement.' §316. "Violently and against the will" essential TO EOBBEKY. lu an indictment for robbery from the per- son, the words feloniously, violently,^ and against the will, are essential ; and it is usual, though it is said to be unnecessary, to allege a putting in fear.^ fatal to an Indictment for bur- glary. — Barnhart v. State, 154 Ind. 177, 56 N. B. 212. Failure to state intent to com- mit specified crime or some crime unknown to grand jury, indictment for burglary fatally defective. — State V. Buchanan, 75 Miss. 349, 22 So. 875; Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258; Simms V. State, 2 Tex. App. 110; Phllbrick V. State, 2 Tex. App. 517; Webster V. State, 9 Tex. App. 75 (charging generally intent to steal insuflB- cient) ; Rodriguez v. State, 12 Tex. App. 552 (particular felony must be described with all its statutory evidence). 2 1 Hale 549; Lyon v. People, 68 111. 271; State v. Curtis, 30 La. Ann. (pt. II) 814; Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258, and see Kerr'a Whart. Grim. Law, § 1028. 3 Tully y. Com., 45 Mass. (4 Met.) 357; Sullivan v. State, 13 Tex. App. 462; State v. Meadows, 22 W. Va. 766. 1 1 Hale 504; 2 Hale 184; Roun- tree v. State, 58 Ala. 381; Gregg v, State, 64 Ind. 223; Com. v. Adams, 73 Mass. (7 Gray) 43; R. v. Mid- dleton, L. R. 2 C. C. 41; Kerr's Whart. Crim. Law, § 1152. In Green v. Com., Ill Mass. 417 It was held that "steal" might be a substitute; though this ruling may be questioned. See State v. Johnson, 30 La. Ann. (Pt. I) 305. "Steal" may be omitted. — See State v. Lee Ping, 10 Ore. 27. 2 State V. Parker, 1 Houst (Del.) 9. 3 Com. V. Pratt, 132 Mass. 246. 1 1 Hale 534; Prost. 128; 3 Inst 68. Compare: Smith's Case, East P. C. 783, in which it was holden that violenter is not an essential term of art. See Kerr's Whart. Crim. Law, § 1092. As to "wilfully," see Woolsey v. State, 14 Tex. App. 57. 2 Kerr's Whart. Crim. Law, § 1092. § § 317-319 INDICTMENT TECHNICAL AVERMENTS. 359 §317. "Pieatical" ESSENTIAL TO PIRACY. Piracy must be alleged to have been done feloniously and piratically.^ § 318. "Unlawfully," and otheb aggeavativb tebms, NOT ESSENTIAL. The phrase "unlawful" is in no case essential, unless it be a part of the description of the offense as defined by some statute; for if the fact, as stated, be illegal, it would be . superfluous to allege it to be unlawful ; if the facts stated be legal, the word unlaw- ful can not render it indictable.^ The same observation is applicable to the terms "wrongfully," "unjustly," "wickedly," "wilfully," "corruptly," to "the evil exam- ple," "falsely," "maliciously," "fraudulently," and such like.^ Thus, though it is usual to allege that the party falsely forged and counterfeited, it is enough to allege that he forged, because the word implies a false making. In indictment for libels, it is sufficient either to use the word falsely or maliciously,^ or an equivalent epithet. But when either of these terms is part of the essential definition of the offense, it can not be dropped.* And this is eminently the case when the term is part of a statutory definition.^ § 319. "Forcibly" and "with a strong hand" essen- tial TO FORCIBLE ENTRY. In forciblo entry, at common law, the defendants must be charged with having used such a 1 1 Hawk., ch. 37, §§ 6, 10. Contra: Under present Indiana 1 IND. — Stazey v. State, 58 Ind. statute. — State v. Smith, 74 Ind. 514; Shinn v. State, 68 Ind. 423; 557. State V. Mulhisen, 69 Ind. 145. As to Texas, see Woolsey v. IOWA— Capps V. State, 4 Iowa 502. State, 14 Tex. App. 57. MO. — State t. Bray, 1 Mo. 180. 2 State v. Hartman, 67 Tenn. (8 N. H.— State v. Williams, 23 N. H. Baxt.) 384; tJnited States v. Ca- (3 Fost) 321; State v. Concord ruthers, 15 Fed. 309. See Kerr's R. Co., 59 N. H. 85. TENN.— Will- Whart. Crim. Law, §§ 650, 1070. iams V. State, 50 Tenn. (3 Helskj s Sty. 392; 2 Wms. Saund. 242; 376. VT. — State v. Vermont R. Starkie 0. P. 86. Co., 27 Vt. 103. FED. — United 4 Com. v. Turner, 71 Ky. (8 States V. DriscoU, 1 Low. 0. C. 305, Bush) 1. Fed. Cas. No. 14994. b Supra, § 285. 360 CRIMINAL PEOCEDUEE. § 320 degree of force as amounts to a breacli of the peace.^ The words, "with strong hand," are indispensable. But it is sufficient in such an indictment to aver, that the defendants unlawfully and with a strong hand entered into the prosecutor's mills, etc., and expelled him from the possession thereof.^ In rape, also, "forcibly" is in most jurisdictions essential.* § 320. " Vi ET ARMis ' ' NOT ESSENTIAL. The practice still exists of introducing, in indictments for forcible injuries, the technical words, vi et armis; but by the stat. 37 H. 8, c. 8, it is enacted that "inquisitions or indictments lacking the words vi et armis, viz., baculis, cultellis, arcubus, et sagittis, or any such like words, shall be taken, deemed, and adjudged, to all intents and pur- poses, to be good and effectual in law, as the same inqui- sitions and indictments having the same words were theretofore taken, deemed, and adjudged to be." These words are therefore superfluous, even where the crime is of a forcible nature, and were imnecessary at common law, where the injury was not forcible.^ And in case of murder, the force at common law is implied from the very nature of the offense.^ The stat. 37 H. 8, c. 8, is in force in Pennsylvania,* in New Hampshire,* in Vermont,^ in Massachusetts,® in North Carolina,'^ in Tennessee,* in 1 R. V. Wilson et al., 8 T. R. 357, omission of the "vi et armis" was 6 Mod. 178; Kerr's Whart. Crim. held immaterial. Law, § 1370. i state v. Kean, 10 N. H. 347, 2 Ibid. 34 Am. Dec. 162. s Kerr's Whart. Crim. Law, § 743. 5 State v. Hunger, 2 Tyler (Vt.) 1 2 Lev. 221; Cro. Jac. 473; 3 P. 166; State v. Hunger, 15 Vt. 290. Wms. 497; Skinner 426; 2 Hawk., e Com. v. Scannel, 65 Hass. (11 ch. 25, § 90. Cush.) 547. 2 2 Hale 187; 1 Hawk., ch. 25, 7 State v. Duncan, 28 N. C. (6 § 3; 1 Hale 534; 3 Inst. 68; Pulton Ired.) 236. 131b; State v. Pratt, 54 Vt. 484. 8 Tipton v. State, 10 Tenn. (2 3 Roberts's Dig. 34; Com. V. Mar- Yerg.) 542; Taylor v. State, 25 tin, 2 Pa. 244, in which case the Tenn. (6 Humph.) 285. §§ 321, 322 INDICTMENT CLEEIOAL EEEORS. 361 Indiana,* and in Louisiana,^" and in these States, as well as generally in this country, the term may be properly omitted.^^ §321. "Knowingly" ALWAYS PRUDENT. "Knowingly" is one of the expletives which, when fraud is charged, it may be useful to insert.^ For although it may be dis- charged as surplusage if unnecessary, it may be some- times employed to help out an otherwise defective allega- tion of guilty knowledge.2 XV. Clerical Errors. § 322. Vekbax, inaccukacies not affecting sense, not FATAL. It has been well said that formerly, in England, the judges felt themselves constrained to adhere so strictly to form that public justice was in many cases evaded, and the most dangerous malefactors let loose upon society, in consequence of the omission of some senseless and unmeaning form. The failure on the part of the prosecution to dot an i,^ or cross a t, or something equally absurd, was considered sufficiently fatal to vitiate the whole proceedings. Substance was sacrificed to form, or rather form became substance, and substance mere form. A more correct and just appreciation of criminal justice has banished from English courts these legal ab- surdities, which answered no other purpose than to pro- tect and screen the guilty from the just punishment of their crimes.^ A like condition prevailed in the American courts to too great an extent, but has been, or is being, 9 state V. Elliot, 7 Blackf. (Ind.) 2 1 Starkle C. P 390; Com. v. 280. Hobbs, 140 Mass. 443, 5 N. E. 158. 10 Territory v. McFarlane, 1 , ^^^ j^^^t^^ .„ „„^ ^^y„^_ Martin, O. S. (La.) 244^ See State ^^^^^ ^^^^^^ j^ ^^^^^^ j^ V. Thornton, 2 Rice Dig. (S. C.) ,, . . „ , ,. „ ■ dlctment sufficient. — Harrison T. li See, also, State v. Temple, 12 S^^te, 144 Ala. 20, 40 So. B68. Me. 214. 2 State v. Homsby, 8 Rob. (La.) 1 As to scienter, see, supra, § 210. 554, 41 Am. Dec. 305. 362 CRIMINAL PROCEDUEK §322 remedied by statutory enactments and reformed rules of practice. Bad or awkward writing does not vitiate an otherwise good indictment, and constitutes no ground for a motion to quash.^ Thus the fact that the name "Coats" looks like "Coots,"* or the time of the offense "ten" looks like "toe,"^ will not vitiate the indictment or render it subject to motion to quash. Mere clerical errors in an indictment otherwise good do not necessarily vitiate it,* and will not do so except in those cases in which the word is changed into one of a different import,^ or into one which so obscures the sense that a person of ordinary intelligence can not with cer- tainty ascertain the meaning,® and a defendant will not be permitted to take advantage of a mere clerical error which is corrected by the necessary intendments of the indictment.* 3 McGee v. State, (Tex. Cr. Rep.) 46 S. W. 930; Rogers v. State, 69 Tex. Cr. Rep. 90, 153 S. W. 850. i When standing alone, but the "a" in the name being the replica of 14 other "a"s in the indictment, held not open to the objection of variailce. — ^Lewis v. State, 55 Tex. Cr. Rep. 167, 115 S. W. 577. 5 Rogers V. State, 69 Tex. Cr. Rep. 90, 153 S. W. 850. 6 Sanders v. State, 2 Ala. App. 13, 56 So. 69; State v. Sharpe, 121 Minn. 381, 141 N. W. 526; Smith v. Territory, 14 Okla. 162, 77 Pao. 187; State v. Brlggs, (R. I.) 86 Atl. 316. "An" for "the," in an indictment for perjury, was held immaterial. ^People V. Warner, 5 Wend. (N. Y.) 271. "And" for "of" in the clause alleging ownership, will not vitiate an indictment for larceny. — State V. Perry, 94 Ark. 215, 126 S. W. 717. "On" for "of," in the expression, "notes on the Bank United States," will be disregarded. — McLaughlin V. Com., 4 Rawls. (Pa.) 464; Har- ris V. State, 71 Tenn. (3 Lea) 324. "Unlawfully and felony desert" wife, suflBciently charges deser- tion. — Peacock v. State, (Ind.) 91 N. E. 597. Mere clerical error in date of adoption of a township organiza- tion law, will not invalidate an indictment for a violation of that law.— State v. Fritz, 154 Mo. App. 578, 136 S. W. 746. ^ Hawkins v. State, 64 Tex. Cr. Rep. 481, 142 S. W. 917; Pye V. State, 71 Tex. Cr. Rep. 94, 154 S. W. 222. 8 Sanders v. State, 2 Ala. App. 13, 56 So. 69. Couch v. State, 6 Ala. App. 43, §322 INDICTMENT — CLERICAL ERRORS. 363 Instances: Thus, it has been held that an indict- ment will not be rendered bad by writing, inadvertently, "aganist" for "against,"^" "cash" for "case,"" "clerk" for " court, "^^ "fifty-too" for " fifty-two, "^^ "frunk" for "drunk,"'* "make" for "marke,"^^ mas- culine for a feminine pronoun,^* "May" for "Novem- ber,"" "monet" for " money, "^^ "Pittis" for "Pet- tis,"" "respectfully" for "respectively,""" "stael" for "steal, "21 "Tebruary" for " February, " ^2 "therefore" for ' ' theretofore, ' ' ^* and the like. Omissions of words/^* letters and syllables do not necessarily vitiate an indictment; particularly is this 60 So. 539; Territory v. Montoya, 17 N. M. 122, 125 Pac. 622. 10 In concluding clause of indict- ment. — State V. Duvenick, 237 Mo. 185, 140 S. W. 185; Hudson T. State, 10 Tex. App. 215. 11 In the clause "contrary to tlie statute in such case made and pro- vided." — State V. Given, 32 La. Ann. 782. 12 Hogue V. United States, 192 Fed. 918. 13 State V. Hedge, 6 Ind. 333. 14 Kincade v. State, 14 Ga. App. 544, 81 S. E. 910. 15 In indictment for putting false mark on sheep. — State v. Davis, 23 N. C. (1 Ired.) 125, 35 Am. Dec. 735. 16 In charge of pandering, in de- scribing person unlawfully induced to remain in house of prostitution. — People V. Armond, 172 111. App. 489. 17 Where manifestly a mere cler- ical error. — ^In re Hilstock, 3 Gratt. (Va.) 650. 18 In indictment for theft. — Wright V. State, 70 Tex. Cr. Rep. 73, 156 S. W. 624. 19 In allegation of ownership of cattle stolen, where name properly spelled elsewhere in indictment. — Hutto V. State, 7 Tex. App. 44. 20 Compton v. State, 67 Tex. Cr. Rep. 15, 148 S. W. 580. 21 State V. Lockwood, 58 Vt. 378, 3 Atl. 539. 22Witten V. State, 4 Tex. App. 70. 23 Schapiro v. State, 75 Tex. Cr. App. 213, 169 S. W. 683. 24 "An" omitted before "unmar- ried" in a charge of having carnal knowledge of a female. — ^State v. Perrigan, 258 Mo. 233, 167 S. W. 573. "Did" omitted does not vitiate (Krueger v. People, 141 111. App. 510, afllrmed People v. Krueger, 237 111. 357, 86 N. B. 617). Thus, "did" omitted in an indictment for selling spirituous liquors by the small measure, when the auxiliary did should have joined the words "sell" and "dispose of," is imma- terial. — State V. Edwards, 19 Mo. 674; State v. Whitney, 15 Vt. 298. See, post, § 324. See, also, the text and authorities in the following paragraph treating of "Ungram- matical Indictment." However, an Indictment which charged that the defendant "felo- 364 CRIMINAL PROCEDURE. §322 true in those instances in whicli the omission is readily supplied by the context and the intendment of the instru- ment considered as a whole, does not impair the charge, or lead to confusion or uncertainty. Omission of letters,^^ under statute. — ^Bailey v. State, 63 niously utter and publish, dispose and pass," etc., etc.; omitting the word "did" before utter, etc., the court arrested the judgment on the ground of uncertainty, no charge being made that the pris- oner did the act. — State v. Haider, 2 McC. (S. C.) 377, 13 Am. Dec. 738. See State v. Hutchinson, 26 Tex. Ill; State v. Daugherty, 30 Tex. 360; State v. Barp, 41 Tex. 487; Koontz v. State, 41 Tex. 570. "Last" omitted between the words "year" and "aforesaid." — State V. Coleman, 8 Rich. (S. C.) 237. "With" omitted after "defen- dant," in an indictment for mur- der, from the clause, "defendant, a certain pistol then and there charged with," not defective. — State V. West, 202 Mo. 128, 100 S. W. 478. See State v. Long, 201 Mo. 664, 100 S. W. 587. In a bill of indictment with three counts, if in the third count it is omitted to be stated that the grand jury, "on their oath," pre- sent (the first two counts being regular in that respect), the objec- tion is obviated by the fact that the record states that the grand jury was sworn in open court. — Huffman v. Com., 6 Rand. (Va.) 685. 25 "Apprplate" for "appropriate," does not affect validity of Indict- ment for theft— Hawkins v. State, 64 Tex. Cr. App. 480, 142 S. W. 917. "Assalt" for "assault." — State v. Crane, 4 Wis. 400. "Canally" for "carnally," In an indictment for incest, sufflcient Tex. Cr. Rep. 584, 141 S. W. 224. "Chil" for "child," in the phrase "female chil under 11 years of age," is not misleading, and suffi- cient. — State V. Griifin, 249 Mo. 624, 155 S. W. 432. "Di" for "did."— Holland v. State, , (Ala. App.) 66 So. 126, certiorari ' denied in Ex parte Holland, 191 Ala. 662, 66 So. 1008. "Fertilize" for "fertilizer," in charging larceny of a pistol from the warehouse of a certain fertil- izer company. — Kirk v. State, 13 Ala. App. 316, 69 So. 350. "Gran" for "grand" jurors, in second count of indictment, word correctly spelled in first count, does not affect validity of indict- ment. — Gardner v. State, 56 Tex. Cr. Rep. 594, 120 S. W. 895. "Inten" for "intent" does not vitiate indictment for assault with intent to murder. — Stinson v. State, 76 Tex. Cr. App. 169, 173 S. W. 1039. "Make" for "marke." — State v. Davis, 23 N. C. (1 Ired.) 125, 35 Am. Dec. 735. "On" instead of "one," in allega- tion of marriage, in indictment for bigamy. — Witt v. State, 5 Ala. App. 137, 59 So. 715. "Secret" for "secrete," sulBcient In indictment charging statutory offense against ofiicer receiving public moneys. — Perrell v. State, (Tex. Or. Rep.) 152 S. W. 901, "Stal" for "steal," In Indictment for 1 a r c e n y. — Wills v. State, 4 Blackf. (Ind.) 457. "Statement" for "statements," in §322 INDICTMENT CLERICAL EKEOES. 365 or even of syllables,^^ does not vitiate. Thus, omission of a letter in the prisoner 's name, in the title of a bill by the grand jury, is not a ground for a motion in arrest of judgment, as the prisoner had pleaded to it, and had been convicted upon it, especially where the name is properly stated in the body of the bill of the indictment itself.^'' Misspelled word or words do not vitiate an indict- ment unless the meaning is thereby obscured or changed ;^^ where it is evident what word was intended to be used,^® and especially where the intended word and the word as spelled have the same sound when pro- nounced,^" in which case the rule of idem sonans ap- plies.*^ And this is true even though the word misspelled is a material word.*^ Instances: Thus it has been held that the indict- ment is not affected by the spelling of "aforethough" for an indictment for perjury charg- ing false swearing on two separate instances. — ^Freeman v. State, 44 Tex. Cr. Rep. 486, 72 S. W. 1001. "Stree" for "street," in indict- ment for disturbing peace. — Hart V. State, 69 Tex. Cr. Rep. 417, 154 S. W. 553. "t" omitted in the required clause "against the peace and dig- nity of the Stat e," being mani- festly a mere clerical error, will not vitiate an indictment. — State V. Duvenick, 237 Mo. 185, 140 S. W. 185; Hudson v. State, 10 Tex. App. 215. "Tenty" for "twenty," in stating denomination of money stolen. — Allen V. State, (Tex. App.) 28 S. W. 474. 26 Entire syllable omitted, in- dictment will he quashed. — Haw- kins V. State, 64 Tex. Cr. Rep. 481, 142 S. W. 917. However, it has been said that — — "Worn" for "woman," in in- dictment for abandonment after seduction, it being alleged in other clauses that she was a female, does not vitiate the indictment. — Quails V. State, 71 Tex. Cr. Rep. 67, 158 S. W. 539. 27 State V. Dustoe, 1 Bay (S. C.) 377. 28 State V. Earp, 41 Tex. 487; Koontz V. State, 41 Tex. 570. 29 ALA. — Grant v. State, 55 Ala. 201. ILL.— People v. Hallberg, 259 111. 502, 102 N. E. 1005. IND.— Bader v. State, 176 Ind. 268, 94 N. E. 1009. N. M.— State v. Ca- bodi, 138 Pac. 262. TEX.— Brum- ley V. State, 11 Tex. App. 114; McGee v. State, (Tex. Cr. Rep.) 46 S. W. 930; Monroe v. State, 56 Tex. Cr. Rep. 244, 119 S. W. 1146; Cheesebourge v. State, 70 Tex. Cr, Rep. 612, 157 S. W. 761. 30 State V. Colly, 69 Mo. App. 444. 31 Brumley v. State, 11 Tex. App. 114. 32LefCer v. State, 122 Ind. 206, 23 N. B. 154. 366 CRIMINAL PROCEDURE. 322 " aforethought, "=>« "assalt" for " assault, ''^^ "brest" for "breast, "33 "ulet" for " bullet, "»« "buUts" for " bullets, "»^ "Chickopee" for "Chicopee,"38 "deliber- atedly" premeditated malice,*® "eiget" for " eight, "*" "eigh" for " eight, "*^ "extravasion" for " extravasa- tion, "*2 "fraudlently" for " fraudulently, "« "frausu- lently" for "fraudulently,"" "fourman" for "fore- man,"*^ "gilding" for "gelding,"*^ "gilts" for "guilts,"*'^ "iliciously" for "maliciously,"^* "inces- tous" for "incestuous,"*" "inhabitance" for "inhabi- Incorrect spelling of name, fol- lowing word "said," after name had been previously correctly spelled, does not vitiate the indict- ment. — Hartley v. State, 47 Tex. Cr. Rep. 41, 83 S. W. 190. 33 In an indictment for murder, is sufBciently near the word in- tended to render the indictment valid. — Sanders v. State, 2 Ala. App. 13, 56 So. 69. 34 In charge of an assault to wound. — State v. Crane, 4 Wis. 400. 35 In indictment for murder. — State V. Carter, 1 N. C. (Conf. Rep.) 210; Anon., 3 N. C. (2 Hayw.) 140. 36 Does not vitiate an indict- ment for murder. — Gaither v. Com., 28 Ky. L. Rep. 1345, 91 S. W. 1124. 37 Where word correctly spelled in other parts of indictment. — Blackwell v. State, 69 Fla. 453, 68 So. 479. 38 As the place of the crime, in an indictment for murder. — Com. V. Dasmarteau, 82 Mass. (16 Gray) 1. 39 Does not vitiate an indict- ment for murder. — State v. Lu Sing, 34 Mont. 31, 85 Pac. 521. 40 In clause charging year of murder. — Somerville v. State, 16 Tex. App. 433. 41 In laying time of act charged. — State V. Coleman, 8 Rich. (S. C.) 237. 42 State V. Hornsby, 8 Rob. (La.) 554, 41 Am. Dec. 305. 43 In an indictment for embez- zlement is not bad for indeflnite- ness and uncertainty. — Bell v. State, 139 Ala. 124, 35 So. 1021. 44 Not misleading and therefore not bad. — St. Louis v. State, (Tex. Cr. Rep.) 59 S. W. 889. 45 Of grand jury. — State v. Kam, 16 La. Ann. 183. 46 In indictment for stealing a horse. — Thomas v. State, 2 Tex. App. 293. 47 Does not vitiate an indict- ment for hog-stealing. — State v. Lucas, 147 Mo. 70, 47 S. W. 1067. 48 Immaterial in an information charging wilfully, forcibly, burglar- iously and feloniously breaking and entering a certain building, malice being suSaciently charged. — Johns V. State, 88 Neb. 145, 129 N. W. 247. 49 In indictment for incest.— State V. Carville, (Me.) 11 Atl. 601. S322 INDICTMENT MISSPELLED WORDS. 367 taiits,"«» "is" for "Ms/'^' for "maultus" for "malt,"^^ "offince" for "offense,"^* "premeditted" for "premeditated,"'" "shorting" for "shooting,"'* "sive" for " sieve, """^ "statue" for "statute,"'* and the like. On the other hand it has been held that an indictment is rendered bad by the use of "ainst" for "against,"'® "appriate" for "appropriate,"*" "congration" for "congregation,"*^ " dwell-house ' ' for * ' dwelling- house, "** "futher" for " father, "«3 "fraudently" for "fraudulently,"** "larcey" for "larceny,"*' "ossion" for "possession,"** "pine" for "pint,"*^ and the like. 50 Keller v. State, 25 Tex. App. 325, 8 S. W. 275. 51 In an indictment charging fraudulent conversion, in t li e charge of converting to his own use, does not vitiate the indict- ment. — Lewallen v. State, 48 Tex. Cr. Rep. 283, 87 S. W. 1159. 52 In indictment for stealing a horse. — State v. Meyers, 85 Tenn. (1 Pick.) 203, 5 S. W. 377. 53 In an accusation of selling spirituous, vinous or malt liquors. — Couch V. State, 6 Ala. App. 43, 60 So. 539. 54Gaither v. Com., 28 Ky. L. Rep. 1345, 91 S. W. 1124. 55 The word h e i n g correctly spelled in other parts of the indict- ment. — ^Blackwell v. State, 69 Fla. 453, 68 So. 479. 56 In an indictment for murder, the intention of the pleader being clear, does not invalidate the in- dictment. — Frances v. State, 44 Tex. Cr. Rep. 246, 70 S. W. 751. 57 State V. Molier, 12 N. C. (1 Dev. L.) 263. 58 In closing clause of indict- ment. — State V. Coleman, 8 Rich. (S. C.) 237. 59 In the statutory conclusion of an indictment. — Bird v. State, 37 Tex. Cr. Rep. 408, 35 S. W. 382. 60 In indictment charging taking of property with Intent to deprive the owner, etc. — Jones v. State, 25 Tex. App. 621, 8 Am. St. Rep. 449, 8 S. W. 801. 61 In indictment for disturbing religious meeting. — State v. Mitch- ell, 25 Mo. 420. 62 In an indictment charging burglary. — Parker v. State, 144 Ala. 690, 22 So. 791. 63 In indictment for bastardy. — State V. Caspary, 11 Rich. (S. C.) L. 356. 64 In indictment for theft of a horse. — ^Wells v. State, 50 Tex. Cr. Rep. 499, 98 S. W. 851. 65 In an indictment charging breaking into a stable with intent to steal. — People v. St. Clair, 55 Cal. 524, 56 Cal. 406. 66 In indictment for robbery. — Evans v. State, 34 Tex. App. 110, 29 S. W. 266. 67 In an indictment charging sell- ing less than four gallons of intox- icating liquor without a license. — State V. Clinkenbeard, 135 Mo. 189, 115 S. W. 1059. 368 CRIMINAL PEOCEDUEB. §322 The general rule may be said to be that false spelling, wbich does not alter the meaning of the words misspelled, is not ground for arrest of judgment;*^ but it is otherwise when the blunder destroys the sense.*" Grammatical and oratorical inaccuracies in an indict- ment will not vitiate it where it contains a substantial accusation of crime, '^" and the averment furnishes the ac- cused with the nature and cause of the accusation. '^^ 68 CALi. — People v. Clair, 55 Cal. 524. LA.— State v. Karn, 16 La. Ann. 183. N. C. — State v. Carter, 1 N. C. (Conf.) 210; State v. Car- ter, 3 N. C. (2 Hayw.) 140; State V. Holier, 12 N. C. (1 Dev. L. 263). S. C. — State V. Caspary, 11 Rich. 356; State v. Wlmberly, 3 McC. 190. 69 CAli. — ^People v. St. Clair, 56 Cal. 406. IND. — Strader v. State, 92 Ind. 376. MO. — State v. Ed- wards, 70 Mo. 480. TEX. — Haney V. State, 2 Tex. App. 504; Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Jones v. State, 21 Tex. App. 349, 17 S. W. 424. 70 If meaning is clear, grammar, spelling or punctuation will not vitiate an information. — Bader v. State, 176 Ind. 268, 94 N. E. 1009. 71 ALA.— Ward v. State, 50 Ala. 120; Pickens v. State, 58 Ala. 364. FLA. — Strobhar v. State, 55 Fla. 167, 47 So. 4. ILL. — Langdale v. People, 100 111. 263; People v. Hall- berg, 259 111. 502, 102 N. E. 1005; People V. Potempa, 181 111. App. 457. IND.— State v. Hedge, 6 Ind. 330. IOWA— State v. Raymond, 20 Iowa 582; State v. Kruppa, 158 N. W. 401. LA. — State v. Kam, 16 La. Ann. 183; State v. Ross, 32 La. Ann. 854; State v. Morgan, 35 La. Ann. 293. ME.— State v. Pat- terson, 68 Me. 473. MASS.— Terms V. Com., 47 Mass. (6 Meto.) 224; Com. V. Burke, 81 Mass. (15 Gray) 408. MINN.— State v. Sharpe, 121 Minn. 381, 141 N. W. 526. MISS.— Fortenberry T. State, 55 Miss. 403; State V. Lee, 72 So. 195. MO.— State V. Edwards, 19 Mo. 674; State V. Zorn, 202 Mo. 12, 100 S. W. 591; State v. Schomers, 176 Mo. App. 271, 161 S. W. 1177. N. H.— State V. Sbaw, 58 N. H. 74. N. M. — State v. Cabodl, 138 Pac. 262. N. Y. — Shay v. People, 22 N, Y. 317; Phelps v. People, 72 N. Y. 334, 372; People v. Pindar, 210 N. Y. 181, 104 N. E. 133, affirm- ing 159 App. Div. 12, 144 N. Y. Supp. 242. N. C. — State v. Haney, 19 N. C. (2 Dev. & B.) 400; State V. Shepherd, 30 N. C. (8 Ired.) 195; State v. Smith, 63 N. C. 234; State V. Davis, 80 N. C. 384. ORE. — State v. Lee Ping, 10 Ore. 27. PA. — Com. V. Moyer, 7 Pa. 439; Perdue v. Com., 96 Pa. St. 311. S. C. — State v. Coleman, 8 S. C. 237; State v. White', 15 S. C. 381; State v. Jefcoat, 20 S. C. 383. TENN. — Williams v. State, 50 Tenn. (3 Heisk.) 376. TEX.— Wit- ten V. State, 4 Tex. App. 70; Stin- son V. State, 5 Tex. App. 31; Snow V. State, 6 Tex. App. 274; Somer- ville V. State, 6 Tex. App. 433 Hutto V. State, 7 Tex. App. 44 Irvin V. State, 7 Tex. App. 109 Henry v. State, 7 Tex. App. 388 Brumley v. State, 11 Tex. App. S322 INDICTMENT — GRAMMATICAL, ETC., ERRORS. 369 Strict grammatical rules should not be enforced in court proceedings any more than in private and ordinary trans- actions.''^ Thus, it has been held that the relative pro- noun must be referred to that antecedent which the prin- ciples of law and the tenor of the instrument require, even though in violation of the rules of syntax,''^ and even the use of the singular "it" for ''them," in an indict- .ment for stealing hogs does not invalidate it, the mean- ing being clear.''^* The same is true regarding the misuse of "ad" and "have,"''^ and "shoot and discharge" for "shooting and discharging," in an indictment for mur- der, it being a mere grammatical error.'^'^ The same is true regarding the phrase "with intent to injure and 114; Wilson v. State, 49 Tex. Cr. Rep. 50, 90 S. W. 312; Lewis v. State, (Tex. Cr. Hep.) 115 S. W. 577; Thompson v. State, 69 Tex. Cr. Rep. 31, 152 S. W. 893; Cheese- bourge v. State, 70 Tex. Cr. Rep. 612, 157 S. W. 761. VT.— State v. Lockwood, 58 Vt. 378, 3 Atl. 539. VA. — Com. V. Ailstock, 3 Gratt 650; Lazier v. Com., 10 Gratt. 708. W. VA.— State v. Gllmore, 9 W. Va. 641. FED. — Hume v. United States, 55 C. C. A. 407, 48 Fed. 689. ENG. — R. V. Stokes, 1 Den. C. C. 307. As a specimen of how much care- lessness can be passed by when the sense is preserved, Hackett v. Com., 15 Pa. St. 95. See, supra, §§213 et seq.; Whart. Crim. Ev., §§ 114 et seq. As to curing by verdict, see, infra, chapter on "Motion in Ar- rest of Judgment." 72 State V. Kruppa, (Iowa) 158 N. W. 401. 73 Strobhar v. State, 55 Fla. 167, 47 So. 4. 74 Funderbunk v. State, (Tex. Cr. Rep.) 61 S. W. 393. I. Crim. Proc— 24 "It," in indictment for stealing "hogs" with intent to deprive owner of their value "and appro- priate said hogs to his own use," is not open to the objection that the word "it" should be used in- stead of "hogs," as referring to the value and not to the animals stolen. — Pate v. State, 47 Tex. Cr. Rep. 373, 83 S. W. 695. Same rule applies in perjury in- dictment where the pleader in declaring on the falsity in two instances of alleged perjury inad- vertently uses "it" for "them" (HoUis V. State, (Tex. Cr. Rep.) 69 S. W. 594). And the same rule applies where the pleader alleges that "the statement so made," where he should have said "state- ments." — Freeman v. State, 44 Tex. Cr. Rep. 496, 72 S. W. 1001. 75 Where from the indictment it is manifest the past tense was in- tended. — Krueger v. People, 141 111. App. 510, affirmed People v. Krueger, 237 111. 357, 86 N. E. 617. 78 Blair v. State, (Okla. Cr. App.) Ill Pac. 1003. 370 CRIMINAL PEOCEDUEE. §323 defraud and defraud" in an indictment charging forgery of a deedJ'' Mispunctuation, it may be finally said, will not vitiate an indictment where the meaning is clear, and the indict- ment is otherwise sufficient.''^ § 323. Questions as to abbreviations. Words written at length are not only more certain, but less liable to alteration, than figures; and, therefore, when the year and day of the inonth are inserted in any part of an indictment, they are more properly inserted in words written at length than in Arabic characters, but a contrary practice will not vitiate an indictment.^ The terms anno domini, in an information or bill of indict- ment, are equivalent to the year of our Lord. Either is (Tex. Cr. 77 Weter v. State, Rep.) 180 S. W. 1082. 78 Pond V. State, 55 Ala. 196; Grant v. State, 55 Ala. 201; Bader V. State, 176 Ind. 268, 94 N. E. 109; State T. Pennell, 56 Iowa 29, 8 N. W. 686. 1 Supra, §§ 166, 167. ALA. — State V. Raiford, 7 Port. 101. CONN. — ^Rawson v. State, 19 Conn. 292. IND.— state v. Voshal, 4 Ind. 589. IOWA— State v. Seamons, 1 Greene 418; Winfield v. State, 3 Greene 339; State v. McPherson, 114 Iowa 492, 87 N. W. 421. LA.— State V. Egan, 10 La. Ann. 698. ME. — State v. Reed, 35 Me. 489, 58 Am. Dec. 727. MASS.— Com. v. Smith, 153 Mass. 97, 26 N. E. 346 (Arabic numerals). MISS. — Kelly V. State, 11 Miss, (3 Sm. & M.) 518. N. J. — ^Berrian r. State, 22 N. J. L. (2 Zab.) 9; Johnson v. State, 26 N. J. L. (2 Dutch.) 313. VA.— Lazier v. Com., 10 Gratt 708. "First March," for "first day of IVIarch," is sufflcient. — Simmons v. Com., 1 Rawle (Pa.) 142. "20 day of September," in indict- ment, sufficient allegation as to time. — Rawson v. State, 19 Conn. 292; Hampton v. State, 8 Ind. 336; Hezer v. State, 12 Ind. 330; State V. McPherson, 114 Iowa 492, 87 N. W. 421; State v. Reed, 35 Me. 489, 85 Am. Dec. 727; Lazier v. Com., 10 Gratt. (Va.) 708; Cady v. Com., 10 Gratt. (Va.) 776. Other cases hold dates should be written out at length. — French V. State, 6 Blackf. (Ind.) 533 ; State V. Voshall, 4 Ind. 589. "Jno" for "John" in setting out accused's name good. — State v. Granger, 203 Mo. 586, 102 S. W. 498. "Sd" for "said" will not vitiate an indictment and is no ground for arresting judgment. — Com. v. Des- marteau, 82 Mass. (16 Gray) 1. Street number of house need not be set forth in words at length. — State V. Castle, 75 N. J. L. 187, 66 Atl. 1059. Year stated in Arabic numerals instead of English words, no ground for reversal of verdict. — Johnson v. State, 26 N. J. L. S324 INDICTMENT ABBREVIATIONS. 371 good, and so is the want of either.^ But some signs ("A. D.,"^ or "in the year") must appear to show what the figures mean.* Hence it is not fatal that the date, instead of being written in full, is abbreviated, as A. D. 1830, if the figures are plainly legible.® And where a bUl was found on the 2d of January, 1839, and the indorse- ment of the plea of not guilty was dated as of the 2d of January, 1838, this was held to be a mere clerical error, and amendable.® But when a written instrument in fig- ures is copied, the figures are to be given.^ § 324. Omission of poemax, wokds may not be fatal. Where an indictment commenced, "the grand jurors within and the body of the county," etc., it was held, that the omission of the word "for" was not fatal.^ And so (2 Dutch.) 313; State v. Smith, 7 Tenn. (Peck.) 165. "&" used for "and" does not Tltiate an indictment. — State v. McPherson, 114 Iowa 492, 87 N. W. 421; Com. v. Clark, 58 Mass. (4 Cush.) 596; Brown v. State, 16 Tex. App. 245; Malton v. State, 29 Tex. App. 527, 16 S. W. 423. "$3" given as the value of a hog alleged to have been stolen, indict- ment held valid. — Earl v. State, 33 Tex. Cr. Rep. 570, 28 S. W. 469. "5.00" given as the value of the property alleged to have been stolen, omitting the $, does not render the indictment fatally de- fectiva — State v. Wadnwright, (Tenn.) 162 S. "W. 583. 2 Hall V. State, 3 Kelly (Ga.) IS, but see Whiteside v. People, 1 111. (Breese) 4; State v. Gilbert, 13 Vt. 647; and see fully supra, §§ 166, 167. 3 "A. D." used to specify the year does not r.ender indictment bad.— State v. Reed, 35 Me. 489, 85 Am. Dec. 727; Com. v. Clark, Sr. Kaas. (4 Cush.) 596; Com. v. Hagarman, 92 Mass. (10 Allen) 401; State v. Hodgeden, 3 Vt. 481. 4 Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494; Com. v. McLoon, 71 Mass. (5 Gray) 91, 66 Am. Dec. 354; Com. v. Doran, 80 Mass. (14 Gray) 37. Contra: Rawson v. State, 19 Conn. 292. Year stated in figures, Indict- ment good. — State v. Reed, 35 Me. 489, 58 Am. Dec. 727; Barnes v. State, 13 Tenn. (5 Terg.) 186. Contra: Berrian v. State, 22 N. J. L. (2 Zab.) 9. 5 State V. Hodgeden, 3 Vt. 481. See Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494. ■ See, also, Bouvier's Law Diction- ary, "Figures," and see, supra, §§166, 167. 6 Com. V. Chauncey, 2 Ash. (Pa.) 90. "First of IVIarch," instead of _ "first day of March," is not fatal, — Simmons v. Com., 1 Rawle (Pa.) 142. 7 See, supra, § 213. 1 State V. Brady, 14 Vt. 353. 372 CRIMINAL PEOCEDUEB. §§ 325, 326 of the omission of the word "present," in the commence- ment.^ It is otherwise as to dropping an essential word; e. ^r., "did."3 § 325. Signs can not be substituted fob words. Mere signs, however, can not be substituted for words. Thns in Vermont under the statute requiring indictments to be in English, it was held bad on demurrer for an indict- ment to use the mathematical signs (° '), in place of "degrees" and "minutes."^ Where the substitution is purely arbitrary this holds good at common law.^ And scientific abbreviations can not be used without explana- tion.* § 326. Ekasukes and interlineations are not fatal. Erasures and interlineations in the body of an indict- ment will be presumed to have been made before the indictment was found and presented by the grand jury ;^ 2 Abemetliy v. State, 78 Ala. 411; State v. Freeman, 21 Mo. 481. Not fatal to omit the word "so," in the passage "and so the jurors, etc., do present.'' — State v. Moses, 13 N. C. (2 Dev.) 452. So of the word "did," before "assault," in an indictment for an assault. — State v. Edwards, 19 Mo. 674; supra, § 322, footnote 24. It is not a fatal objection to an Indictment that the name of a grand juror in the caption does not correspond with his name in the panel, nor that the indictment is stated as found upon the oaths, instead of the oath, of the inquest. —State V. Dayton, 23 N. J. L. (3 Zah.) 49, 53 Am. Dec. 270. Supra, §92. 3 Moore v. State, 7 Tex. App. 42. See, however, authorities ante, § 322, footnote 24. 1 State V. Jericho, 40 Vt. 121, 94 Am. Dec. 387. See State v. Gil- bert, 13 Vt 647. 2 A clerk of the court placed on the margin, by several counts, the numbers one, two, and so on, and, by mistake or otherwise, began to number at the second count, and the same error was continued through the whole number of counts; and the jury returned a verdict of guilty on the seventh or eighth count, "as marked." It was held, that it was error for the court to render sentence on the seventh and eighth counts of the Indictment as found. — Woodford v. State, 1 Ohio St. 427. 3 United States v. Peichart, 32 Fed. 142. 1 ALA. — Clemmons v. State, 43 Fla. 200, 30 So. 699. GA.— Jones v. State, 99 Ga. 46, 25 S. B. 617. IOWA— State v. Hallestad, 132 Iowa 188, 109 N. W. 613. TEX.— Jacobs V. State, 43 Tex. Cr. Rep. 353, 59 S. W. 1111. Court will presume indictment with interlineations is exactly as § 326 INDICTMENT — ERASURES AND INTERLINEATIONS. 373 and especially is this true when the interlineations are in the same handwriting and with the same colored ink as the body of the indictment, ^ — although a different col- ored ink and a different handwriting will not vitiate,^ — where such erasures and interlineations are not contrary to the probable intendment and meaning of the indict- ment as it originally stood, but have a tendency to make the meaning more clear, the wording more definite, and the instrument accurate,* even though the interpolated word or words have the effect to change the nature of the offense charged and the degree of the punishment that may be inflicted — e. g., change a charge of man- slaughter to one of murder." Pencil interlineations and corrections or additions of a letter or letters, before the indictment is found and returned by the grand jury, does not vitiate the indict- ment, and particularly so when the letter or letters added make no difference in the sense, sound or effect of the word to which joined.® it was presented and found, until "Marion" substituted for "John" the contrary is shown by irresist- in the indictment returned by the ible proof. — State v. Florey, 5 La. grand jury, made by the clerk of Ann. 429. the court, is a nullity, though 2 Clemmons V. State, 43 Fla. 200, "Marion" be defendant's correct 30 So 699 name, and does not affect the in- dictment as found § 343. Election will not be compelled where of- fenses ARE connected. As a general rule, when two No. 16390. ENG. — R. v. Ferguson, 14 Rich. L. 169, 94 Am. Dec. 130; 6 Cox C. G. 454. State v. Glover, 27 S. C. 602, 4 4 Infra, §§771,910. ALA.— Cow- S. E. 564. VT.— State v. Hooker, ley V. State, 37 Ala. 152. CAL.— 17 Vt. 658. ENG.— R. v. Ferguson, People V. Shotwell, 27 Cal. 394. 6 Cox C. C. 454. CONN. — State v. Merwin, 34 Conn. For general verdict in larceny 113; State v. Tuller, 34 Conn. 281. and receiving. — State v. Baker, 70 FLA. — Crlbbs v. State, 9 Fla. 409. N. C. 530. GA.— Dean v. State, 43 Ga. 218. as to how far bad count vitiates ME.— Stete V. Hood, 51 Me. 363. verdict, see, infra, chapter on MD.— Manly v. State, 7 Md. 149. "Sentence," div. 11. MO.-State v. McCue, 39 Mo. 112; , ^^^ ^ BiraB^Hl. 69 Pa. St. 482, State V. Core, 70 Mo. 491. N. J.- ^ ^^ 283. Cook V. State, 24 N. J. L. (4 Zab.) 843. PA.-Com. v. McKlsson, 8 "^'^^'^ ^- ^^^^- ^2 <^- 565. Serg. & R. 420, 11 Am. Dec. 630; 7 Com. v. Carey, 103 Mass. 214. Hutchinson v. Com., 82 Pa. St. 472. Compare: State v. Tuller, 34 S. C— State V. Crank, 2 Bail. 66, Conn. 281. 23 Am. Dec. 117; State v. Nelson, 8 Infra, chapter on "Verdict." 394 CRIMINAL PEOCEDUEE. §343 offenses charged form parts of one transaction, the one an ingredient or corollary of the other, the prosecutor will not be ordinarily called upon to elect upon which charge he will proceed.^ Between larceny and stolen goods, therefore, an election will not be compelled when the evidence is such that it is doubtful of which offense the defendant was guilty f or between a charge of assault In Pennsylvania, where a count for a misdemeanor is joined to a count for felony, the jury can not, in acquitting the prisoner, impose costs upon him; and though such a verdict be rendered and judg- ment ordered, the county is liable for the costs. — Wayne v. Com., 26 Pa. St. 154. 1 ALA.— Mayo v. State, 30 Ala. 32. DEL.— State v. Manluff, 1 Houst. 268. D. C. — ^United States V. Neverson, 1 Mack. 152. GA. — State V. Hogan, R. M. Charlton 474. ILL.— Ker v. People, 110 111. 627, 51 Am. Rep. 706. IND.— Miller V. State, 51 Ind. 405; Wall v. State, 51 Ind. 453. KAN.— State v. Crim- mins, 31 Kan. 376, 2 Pac. 574; State V. Skinner, 34 Kan. 256, 8 Pac. 420; State v. Fisher, 37 Kan. 404, 15 Pac. 606. LA. — State v. Jacob, 10 La. Ann. 141. MB.— State V. Flye, 26 Me. 312. MD.— State V. Bell, 27 Md. 675, 92 Am. Dec. 658. MASS. — Com. v. Is- mahl, 134 Mass. 201. MICH.— Peo- ple V. Sweney, 55 Mich. 586, 22 N. W. 50. MISS.— Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544. MO. — State v. Jackson, 17 Mo. 554; State v. Mallon, 75 Mo. 355; State V. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35. NEB.— Candy v. State, 8 Neb. 482. N. Y.— People V. Costello, 1 Den. 83; Arm- strong V. People, 70 N. Y. 38; People V. Satterlee, 5 Hun 167; People V. Reavy, 45 Hun 418. N. C— State v. McNeill, 93 N. C. 552. PA.— Com. v. Manson, 2 Ashm. 31. S. C— State v. Nelson, 14 Rich. L. 169, 94 Am. Dec. 130. TEX. — Masterson v. State, 20 Tex. App. 574. VA. — Dowdy v. Com., 9 Gratt. 727, 60 Am. Dec 314. BNG.— R. V. Jones, 2 Camp. 132; R. V. Wheeler, 7 Car. & P. 170, 32 Eng. C. L. 556; R. v. Kartell, 7 Car. & P. 475, 32 Eng. C. L. 715; R. V. Austin, 7 Car. & P. 796, 32 Eng. C. L. 877; R. v. Pulham, 9 Car. & P. 281, 38 Eng. C. L. 172. Between different items of a con. tinuous talking election will not be compelled. — R. v. Ward, 10 Cox C. C. 42. Election required only when felonies not of the same character are charged in the different counts of the indictment. — Baker v. State, 25 Tex. App. 1, 8 Am. St. Rep. 427, 8 S. W. 23. Offenses must be individuated to sustain a demand for an elec- tion.— Peacher V. State, 61 Ala. 22. Principal of election applicable only where there is evidence of distinct transactions. — Black v. State, 83 Ala. 81, 3 Am. St. Rep. 691, 3 So. 814. 2GA. — State v. Hogan, R. M. Charlt. 474. ILL. — ^Andrews v. Peo- ple, 117 111. 195, 7 N. B. 265. IND. — Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494; Keefer v. § 343 INDICTMENT JOINDER AND ELECTION. 395 and battery and one of rape, arising out of the feame transaction;^ or seduction on two different days.* And tlie prosecutor will not be compelled to elect where a count, charging a person with being accessory before the fact, is joined with one charging him with being acces- sory after;" nor where the defendant is indicted as a principal in the first degree in one count, and as principal in the second degree or accessory in another count ;** nor when several defendants in homicide are charged with assaulting with different weapons.'' On the same prin- ciple, where there are counts in an indictment for forging a bill, acceptance, and indorsement, the prosecutor is not driven to elect on which he will proceed.* Of course no election will be compelled when the counts vary only in form.® But where two assaults at different times are proved an election will be compelled;^" and where two defendants were indicted for a conspiracy and for a libel, and at the close of the case for the prosecution, there was evidence against both as to the conspiracy, but no evi- State, 4 Ind. 246; Glover v. State, 5 Tompkins v. State, 17 Ga. 356; 109 Ind. 391, 10 N. E. 282. LA. — R. v. Blackson, 8 Car. & P. 43. State V. Laque, 37 La. Ann. 853. In R. v. Brannon, Law Times, MD.— State v. Bell, 27 Md. 675, 92 Feb. 28, 1880, p. 319, Cockburn, Am. Dec. 658. MO.— State v. Dau- C. J., required the prosecution to bert, 42 Mo. 242. N. C. — State v. elect between two counts, one Morrison, 85 N. C. 561. VA.— charging the defendant as princi- Dowdy V. Com., 9 Gratt. 727, 60 Pal, the other as accessory after Am. Dec. 314. the fact. See, also, cases cited supra, « Williams v. State, 69 Ga. 11 . 041 State V. Testerman, 68 Mo. 408 , ,„„ Simms v. State, 10 Tex. App. 131 3 MUls V. state, 52 Ind. 187. ^ ^ ^^^^^ ^ ^ar. & P. 164, 32 Otherwise where evidence shows Eng. C. L. 553. two distinct assaults not part of 7 Williams v. State, 54 Ga. 401; the same transaction (Williams v. Gonzales v. State, 5 Tex. App. 584. State, 77 Ala. 53), or where on 8 R. v. Young, Peake's Add. Cas. one charge several like offenses 228. are proven.— State v. Norris, 122 9 Stewart v. State, 58 Ga. 577. Iowa 154, 79 N. W. 999. 10 Williams v. State, 77 Ala. 53; 4Hausenfluck v. Com., 85 Va. Busby v. State, 77 Ala. 661; State 702, 8 S. B. 683. v. Hutchings, 24 S. C. 142. 396 CRIMINAL PEOOEDUEE. § 344 dence against one of them as to the libel, an election was required." The defendant is entitled to an acquittal on the abandoned counts if there be no nolle prosequi as to them.i2 § 344. Object of election is to kedtjce to a single ISSUE. Abandoning the artificial and now in most juris- dictions obsolete distinction between felonies and misde- meanors, we may hold, therefore, summing up what has been already said, the following conclusions : 1. Cognate offenses may be joined in separate counts in the same indictment. 2. If this is done in such a way as to oppress the de- fendant, the remedy is a motion to quash. 3. It is permissible, in most States, to join several dis- tinct oifenses, to each of which fine or imprisonment is attachable; and upon a conviction on each count, to impose a sentence on each.^ 4. Yet as to offenses of high grade in all States, and in some States as to all offenses, the court will not permit more than a single issue to go to the jury, and hence will require an election on the close of the prosecution's case,^ except in those cases in which offenses are so blended that it is eminently for the jury to determine which count it is that the evidence fits.* 11 R. V. Murphy, 8 Car. & P. 297, 561. GA.— Tompkins v. State, 17 34 Eng. C. L. 744. Ga. 356; Gilbert v. State, 65 Ga. 12 Ibid. State v. McNeill, 93 N. C. 449. ILL.— Goodhue v. People, 94 552; State v. Sorrell, 98 N. C. 738, III. 37. IND.— Long v. State, 56 4 S. E. 630. Ind. 182, 26 Am. Rep. 19; Kidder 1 See, infra, chapter on "Sen- v. State, 58 Ind. 68; Snyder v. tence," div. II. State, 59 Ind. 105. ME.— State v. 2 State V. Brown, 58 Iowa 298, Nelson, 29 Me. 329. MICH.— Peo- 12 N. W. 318. pie v. Jenness, 5 Mich. 305. MO. — 3 Supra, §§338, 340, Kerr's State v. Testerman, 68 Mo. 408. Whart. Grim. Law, §§ 673, 1294. N. Y.— Kane v. People, 8 Wend. ALA.— Blam v. State, 26 Ala. 48; 203; Lanergan v. People, 39 N. Y. Gochraiie v. State, 30 Ala. 542. 39; People v. Austin, 1 Parker Cr. ARK. — State v. Jourdan, 32 Ark. Rep. 154. N. C. — State v. Haney, 203; State v. Lancaster, 36 Ark. 19 N. C. (2 Dev. & B.) 390. OHIO— 55. DEL. — State v. Early, 3 Harr. Bainbridge v. State, 30 Ohio St. •;, J 15 INDICTMENT — JOINDER AND ELECTION. 397 The object of the rule, it may be added, is, first, to enable the defendant to prepare properly for Ms defense ; and, secondly, to protect bim, by an individualization of the issue, in case a second prosecution is brought against him. On the other hand, we must remember that there are a series of minor offenses in which a joinder is a benefit to the defendant, even though he should be con- victed on each count, as he is thus saved from an accu- mulation of costs that might have a crushing effect. There are numerous lines of cases in which, where sepa- rate indictments are introduced to cover a series of simul- taneous or closely consecutive offenses (e. g., as in the cases of the famous tea suits before Judge Washington, in which a separate libel was brought for each of a thou- sand chests of tea alleged to have been smuggled), the court will require, in order to save the defendant from unnecessary vexation, if not ruin, that the cases be con- solidated.* § 345. Election at discbetion of cotjkt. Whether a court will compel a prosecuting officer to elect which count to proceed on rests in the discretion of the court, and can not ordinarily be assigned for error.^ But when 264. R. I. — State v. Hazard, 2 R. I. i ALA. — Johnson v. State, 29 474, 60 Am. Dec. 96. S. C— State Ala. 62, 65 Am. Dec. 383. ARK. — V. Sims, 3 Strobh. 137. VT.— State Baker v. State, 4 Ark. 56. V. Smith, 22 Vt. 74; State v. Cro- CONN.— State v. Tuller, 34 Conn, teau, 23 Vt. 14, 54 Am. Dec. 90. 281. ILL.— Beasley v. People, 89 FED.-United States v. Dicken- "'• "1- IND.-McGregor v. State, son, 2 McL. C. C. 325, Fed. Cas. No. 14958. ENG.— R. v. Hart, 7 16 Ind. 9; Griffith v. State, 36 Ind. 406; Snyder v. State, 59 Ind. 105; Beaty v. State, 82 Ind. 228 ; Dantz Car. & P. 652, 32 Eng. C. L. 805; ^ g^^^^^ g^ j^^ 39g ^^^ _ R. V. Truman, 8 Car. & P. 727, 34 gj^jg ^ Cremmis, 31 Kan. 376, 2 Eng. C. L. 986; R. v. Vandercomb, pac. 574. LA.— State v. Cazeau, 8 2 Leach 816; R. V. Hinley, 2 M. & La. Ann. 109. ME.— State v. R. 524; R. v. Smith, R. & R. 295. Plye, 26 Me. 312; State v. Nelson, 4 Indictments may be consoli- 29 Me. 329; State v. Hood, 51 Me. dated in the federal courts under 363. MD. — State v. Bell, 27 Md. statute has been already seen. 675, 92 Am. Dec. 658; Gilson v. Supra, §335. See,- also. State v. State, 54 Md. 447; State v. Black- McNeill, 93 N. C. 552. eney, 96 Md. 711, 54 Atl. 614., 398 CRIMINAL, PROCEDURE. §346 two distinct felonies are put in evidence, under separate counts, against protest, this rule, in its rigor, can not be applied.^ When, however, several guilty acts (as in case of adultery) are put in evidence to make out a case, it is not error that election is not compelled, when it is not specially asked for.* § 346. Election may be at any time before verdict. The general rule is that where the indictment shows on. its face that an election is proper, the motion to compel such election should be made at the time the indictment is read to the jury.^ But in as much as the repugnancy may not appear until the evidence is developed, it is not in such a case just to compel an election until the prose- cutor knows what to elect. Hence, when necessary to justice, the motion has been held to be in time where MASS.— Com. V. Hills, 64 Mass. (10 Cush.) 530; Com. v. Sullivan, 104 Mass. 552; Pettes v. Com., 126 Mass. 245; Com. v. Pratt, 137 Mass. 98. MISS. — Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544; Strawbern v. State, 37 Miss. 422, 2 Mor. St. Cas. 1338; George v. State, 39 Miss. 570, 2 Mor. St. Cas. 1419; Teat v. State, 53 Miss. 439. MO. — State v. Jackson, 17 Mo. 544, 59 Am. Dec. 281; State v. Leonard, 22 Mo. 449 ; State v. Porter, 26 Mo. 206; State v. Gray, 37 Mo. 463; State V. Daubert, 42 Mo. 242; State V. Pitts, 58 Mo. 556; State v. Green, 66 Mo, 632. N. H. — State v. Lin- coln, 48 N. H. 464. N. Y.— People V. Baker, 3 Hill 159; Nelson v. People, 23 N. Y. 293; People v. White, 55 Barb. 606; La Beau V. People, 33 How. Pr. 66, 69; Tay v. People, 12 Hun 212. PA.— Com. v. Birdsall, 69 Pa. St. 482. OHIO— Bailey v. State, 4 Ohio St. 440. R. I.— State V. Hazard, 2 R. I. 474, 60 Am. Dec. 96; State v. Fitzsimon, 18 R. L 236, 49 Am. St. Rep. 766, 27 Atl. 446. S. C— State v. Hutch- ins, 24 S. 0. 142; State v. Bou- knight, 55 S. C. 353, 74 Am. St. Rep. 751, 33 S. E. 451. TBNN.— Wright V. State, 23 Tenn. (4 Humph.) 194; Hampton v. State, 27 Tenn. (8 Humph.) 69, 47 Am. Dec. 599. VA. — Dowdy v. Com., 9 Gratt. 727, 60 Am. Dec. 314; State v. Smith, 24 Va. 814. FED.— United States V. Bennett, 17 Blatchf. 357, Fed. Cas. No. 14572. ENG.— R. v. Trueman, 8 Car. & P. 727, 34 Eng. C. L. 986; R. v. Fussell, 3 Cox C. C. 291; Young v. R., 3 T. R. 106. Compelling election where an election may deprive state of a substantial right, is reviewable error.- State v. Bailey, 50 Ohio St. 636, 36 N. B. 233. 2 Womack v. State, 47 Tenn. (7 Cold.) 508. 3 State V. Witham, 72 Me. 531. See Whart. Cr. Ev., § 194. 1 Gilbert v. State, 65 Ga. 449. § 347 INDICTMENT — COUNTS VARIED TO SUIT CASE. 399 made before verdict.* To elect a count is virtually to withdraw the others from the consideration of the jury f though ordinarily the motion should be made before the defendant opens his case.* In Iowa it has been said that when the repugnancy is of record, the time for an application to compel election is before plea; that if the defendant has pleaded not guilty, he should be allowed to withdraw his plea in order to make a demand for such an election ; but that there is no inconsistency in permitting him to require such an election while his plea of not guilty is still pending,^ because where that plea is made to the whole indictment, it will still be good as to such charge as remains after an election is made.® After verdict, the course is not to elect a particular count, but to enter a nolle prosequi as to those on which judgment is not asked.'' At any time before verdict it is within the power of the prosecution to make the election, though this should ordinarily be done before summing up.® § 347. Counts should be varied to suit case. Every cautious pleader will insert as many counts as will be necessary to provide for every possible contingency in the evidence; and this the law permits;^ but this must 2 ALA.— Elam v. State, 26 Ala. 8 Car. & P. 297, 34 Bng. C. L. 744. 48 ; Jolinson v. State, 29 Ala. 62, 5 State v. Abrahams, 6 Iowa 117, 65 Am. Dec. 383. MISS.— Wash v. 71 Am. Dec. 399; State v. Hale, 44 State, 22 Miss. (14 Smed. & M.) Iowa 96. 120. N. H. — State v. Lincoln, 49 e State v. Abrahams, 6 Iowa 117, N. H. 464. S. C. — State v. Sims, 3 71 Am. Dec. 399. Strobh. 137. TENN.— Womack v. 7 State v. Reel, 80 N. C. 442. State, 47 Tenn. (7 Cold.) 508. 8 Woodford v. People, 62 N. Y. 3 Mills V. State, 52 Ind. 187. 117, 20 Am. Rep. 464; State v. 4 GA.— Gilbert v. State, 65 Ga. Barr, 78 Vt. 97, 62 Atl. 43. 449. TEX.— Fisher v. State, 33 i Howard v. State, 34 Ark. 433; Tex. 792; Lunn v. State, 44 Tex. Beasley v. State, 89 111. 571; State «5; Simms v. State, 10 Tex. App. v. Shepard, 33 La. Ann. 1216; J.31. W. VA.— State v. Smith, 24 State v. Smith, 24 W. Va. 814. W. Va. 814. ENG.— R. v. Murphy, To counts of this class, Massa- 400 CRIMINAL PEOOEDUEE, §347 be done in such a manner as to clearly show upon the face of the indictment that the matter and things set forth in the different counts are descriptive of one and the same offense.^ Thus, he may vary the ownership of articles stolen, in larceny f of houses burned, in arson ;* or the fatal instrument and other incidents, in homicide.* death; but, in order to meet the chusetts statute 1861 does not ap- ply. See Com. v. Andrews, 132 Mass. 263. 2 People V. Thompson, 28 Cal. 216; People v. Garcia, 58 Cal. 102; People V. Jailles, 146 Cal. 301, 79 Pac. 965. 3 Cooper V. State, 79 Ind. 206. As to verdict, see, infra, § 740 ; State V. Nelson, 29 Mo. 329; Com. V. Dobbin, 2 Pars. (Pa.) 380. 4 Newman V. State, 14 Wis. 393; R. V. Trueman, 8 Car. & P. 727, 34 Eng. C. L. 986. B See Kerr's Whart. Crim. Law, § 673; Hunter v. State, 40 N. J. L. (11 Vr.) 495. As to averment of weapon, see, supra, § 261. Reason for the rule Is thus ex- cellently stated by Chief Justice Shaw: "To a person unskilled and un- practiced in legal proceedings, it may seem strange that several modes of death, inconsistent with each other, should be stated in the same document; but it is often necessary, and the reason for it, when explained, will be obvious. The indictment is but the charge or accusation made by the grand jury, with as much certainty and precision as the evidence before them will warrant. They may be well satisfied that the homicide was committed, and yet the evi- dence before them leave it some- what doubtful as to the mode of evidence as it may finally appear, they are very properly allowed to set out the mode in different counts; and then if any one of them is proved, supposing it to be also legally formal, it is sufilcient to support the indictment. Take the instance of a murder at sea: a man is struck down, lies some time on the deck insensible, and in that condition is thrown over- board. The evidence proves the certainty of a homicide, by the blflw or by the drowning, but leaves it uncertain by which. That would be a fit case for several counts, charging a • death by a blow, and a death by drowning, and perhaps a third, alleging a death by the joint result of both causes combined." — Bemis's Web- ster Case, 471; Webster Case, 59 Mass. (5 Cush.) 533; Pettes v. Com., 126 Mass. 245. See, also, State V. Johnson, 10 La. Ann. 456; United States v. Furlong, 18 U. S. (5 Wheat.) 184, 5 L. Ed. 64. Rule In England: How gener- ally the same practice exists in England may appear from the very pertinent inquiry of Alder- son, B., in a recent case: "Why may there not be as many counts for receiving as there are for steal- ing — one for each? It is really only one offense, laying the prop- erty in different persons. It is 348 INDICTMENT — COUNTS PRECISELY ALIKE. 401 Hence a verdict of guilty on four counts, charging the murder to have been committed with a knife, a dagger, a dirk, and a dirk-knife, is not double or repugnant, since the same kind of death is charged in all the counts.® § 348. Two COUNTS peecisely alike defective. As both in civil and criminal pleading two counts charging the same thing would be bad on special demurrer for duplic- ity — though the fault in civil pleading is cured by plead- one stealing, and one receiving; and because there was some doubt as to tbe person to whom the prop- erty really belonged, the property is laid five different ways. If a late learned judge had drawn the indictment, you would very likely had it laid in fifty more." — R. v. Beeton, 2 Car. & K. 961, 61 Bng. C. L. 960. To same effect, see People v. Thompson, 28 Cal. 214; Beasley v. People, 89 111. 571. As to verdict to be taken in such cases, see, infra, chapter on "Ver- dict," div. I, last section. —"In R. V. Siilem (2 H. & C. 431), an information (which might have been an indictment) charged cer- tain persons in substance with hav- ing equipped for the Confederate States, then at war with the United States, a ship called the Alexandra. The information was framed upon 59 Geo. 3, ch. 69, and contained ninety-five counts. The first count charged an equipping with intent that the ship should be employed by certain foreign States, styling themselves the Confederate States, with intent to cruise against the Republic of the United States. The second count, instead of the Republic of the United States, mentioned the citizens of the Re- public of the United States. The I. Grim. Proc— 26 third count omitted all mention of the Confederate States, and called the United States the Republic of, etc. The fourth count was like the third, with the exception of returning to the expression 'citi- zens,' etc. After giving various names to the United States and Confederate States in the first eight counts, eight other counts were added substituting 'furnish' for 'equip.' Eight more substituted 'fit out' for 'furnish.' In short, the indictment contained a number of counts obtained by combining every operative verb of the sec- tion on which it was founded with all the other operative words." — Report of English commissioners of 1879. — Lord Campbell in R. v. Row- lands, 2 Den. C. C. 38, and Lord Denman in R. v. O'Connell, 11 CI. & F. 374, censure the undue mul- tiplication of counts ; though under common law pleading, this, in com- plicated cases, can not be avoided. To split the charge in distinct in- dictments would unduly accumu- late costs, and would expose the prosecution to an application to consolidate. 6 Donnelly v. State, 26 N. J. L. (2 Dutch.) 463, affirmed in error, 26 N. J. L. (2 Dutch.) 601. See, also, supra, §§ 340 et seq. 402 CRIMINAL PBOCEDUEE. § 348 ing over — ^it has been usual, by inserting tbe word "other" in a second count, to obviate this difficulty, through the fiction that the cause of action thus stated is new and distinct. The rule is clear, that when two counts setting out the same offenses occur, judgment will be arrested. "Neither, as we think," says Lord Denman, in a case in 1846, "can one offense, whether felonious or not, be properly charged twice over, when with one in- dictment or two ; and as special demurrers are not neces- sary in criminal cases, we think that if the two counts in an indictment necessarily appear to be for the same charge, the objection might be taken in arrest of judg- ment. But still the court would, if possible, hold them not to be f pr the same offense ; and certainly the omission of the word 'other' would not of itself make the same; though the insertion of the word 'other' would make them different."^ In New Hampshire, however, it is said that where the same offense is described with formal varia- tions in different counts, it is not necessary to allege the offense described in each of the several counts to be other and different from that described in the others.^ Even according to the strictest practice, the omission in an indictment, containing two counts, of an averment that they are for different offenses, is cured by a verdict of not guilty on one of the counts, or the entry of a nolle prosequi on that count.* To same effect, see Jones V. Indictment in first count charged State, 65 Ga. 621; Merrick V. State, defendant with the forging of a 63 Ind. 637. certain instrument, and in the see- As to duplicity in such aver- "'^'^ '^o™* "^^""^^^ ai^°t'^«'' Person ments, see, supra, § 302. ^"^^ ^^ ""^"''S of the instru- ment, and then proceeded to charge Defendant can not use one count ^^^ defendant with being an ac- as evidence to disprove another ^^^^^^ ^^^^^^ ^^^ ^^^^ ^^ ^^^^ ^^ count. See Edmonds t. State, 34 ^^ ,^^. j^ ^^^ ^^j^^ j^ Massachu- Ark. 720. gg(,^g ^Yi2Lt but two counts were 1 Campbell v. R., 11 Ad. & Bl., charged. — Pettes v. Com., 126 N. S. 800, 63 Eng. C. L. 799. Mass. 242. 2 State V. Rust, 35 N. H. 438. 8 Com. v. Holmes, 103 Mass. 440. §§ 349, 350 INDICTMENT — TEANSPOSING COUNTY. 403 The relative "said," used in one of the subsequent counts of an indictment referring to matter in a previous count, is always to be taken to refer to the count imme- diately preceding where the sense of the whole indict- ment does not forbid such a reference.* § 349. One bad count can not be aided by another. Where the first count of an indictment is bad, or is abandoned by the prosecution, a subsequent count may be sustained, even though it refers to the first count for some allegations, and without repeating them.^ Gener- ally, however, one bad count can not help another bad count, which is defective in a distinct way.^ Even in good counts, it is unsafe to attempt to supply a material averment by mere reference to a preceding (Sount. Time and place may be thus implied, but not, it seems, descriptive averments which enter into the vitals of the oifense.^ § 350. Counts may be tbansposed after verdict. There may be cases, it seems, in which counts may be trans- posed after verdict, so as to invest the second with the incidents of the first, or vice versa. Thus, in an English case, A. and B. were indicted for the murder of C, by shooting him with a gun. In the first count A. was charged as principal in first degree, B. as present, aiding and abetting him ; in the second count B. as principal in first degree, A. as aiding and abetting. The jury con-' victed both, but said they were not satisfied as to which fired the gun. It was held that the jury were not bound 4 Sampson v. Com., 5 Watts & Watts & S. 385. WIS.— State v. S. (Pa.) 385; Boles v. State, 13 Lyon, 17 Wis. 237. ENG.— R. v. Tex. App. 650. Dent, 1 Car. & K. 249, 47 Bng. C. 1 Com. V. Miller, 2 Par. (Pa.) l 248, 2 Cox C. C. 354; R. v. Mar- 480; State v. Lea, 41 Tenn. (1 y^^ g ^^^ ^ p 213, 38 Eng. C. L. Cold.) 175. j^gg 2 State V. Longley, 10 Ind. 482. 3 FLA.— Keech v. State, 15 Fla. B"* see, supra, §§ 342 et seq., as 591. ME.— State v. Nelson, 29 Me. to practice in courts for receiving 329. PA.— Sampson v. Com., 5 stolen goods. 404 CRIMINAL PROCEDURE. §351 to find the prisoners guilty of one or other of the counts only (Maul., J., dissentiente) ; and that notwithstanding the word "afterward" in the second count, both the counts related substantially to the same person killed, and to one killing, and might have been transposed with- out any alteration of time or meaning.^ The effect of a bad count after verdict will be consid- ered hereafter.2 XVIII. Joinder of Defendants. 1. "Who May Be Joined. § 351. Joint offenders can be jointly indicted. When more than one join in the commission of an offense, all, or any number of them, may be jointly indicted for it, or each of them may be indicted separately.^ Thus, if, severaP commit a robbery, burglary, or murder, they may be indicted for it jointly* or separately; and the 1 R. V. Downing, 1 Den. C. C. 52. 2 Infra, chapter on "Verdict," div. I, and chapter on "Writ of Error," div. II. 1 ALA. — Lindsey v. State, 48 Ala. 169. ARK. — Johnson v. State, 13 Ark. (8 Bng.) 684; Volmer v. State, 34 Ark. 487. CAL.— People V. Plyler, 121 Cal. 160, 53 Pac. 553. KY.— Shelbyville & E. T. P. R. Co. V. Com., 9 Ky. L. Rep. 244. MICH.— People v. Long, 56 Mich. 549, 23 N. W. 217. MISS.— Woods V. State, 81 Miss. 164, 32 So. 998; Howard v. State, 83 Miss. 378, 35 So. 653. MO.— State v. Gay, 10 Mo. 440. N. H. — State v. Nowell, 60 N. H. 199; State v. Wilson, 61 N. H. (Phil.) 237 (in affray). PA. —Com. V. Miller, 2 Pars. Eq. Cas. 480; Com. v. Casey, 14 Pa. Co. Ct. C. C. 254, Fed. Cas. No. 15377; United States v. O'Callahan, 6 McL. C. C. 596, Fed. Cas. No. 15910. As to joint punishment, see, infra, chapter on "Sentence," div XIV. As to wlien co-defendants can be witnesses for eacli otiier, see Whart. Crim. Ev., § 445. As to IVIichlgan practice, see Stuart V. People, 42 Mich. 255, 3 N. W. 863. Defendant properly charged, judgment not arrested because in- dictment charges several jointly with offense not capable of being jointly committed. — Weatherf ord V. Com., 73 Ky. (10 Bush) 196. 2 Supra, § 343 ; Com. v. Mc- Laughlin, 66 Mass. (12 Cush.) 615; Rep. 389. S. C. — State v. McDow- Com. v. O'Brien, 107 Mass. 208; ell. Dud. L. 346. TEX.— Lewellen V. State, 18 Tex. 538. FED.— United Stateb v. Holland, 3 Cr. R. V. Giddins, 1 Car. & M. 634, 41 Eng. C. L. 344. 3 2 Hale 173; State v. Blan, 69 § 352 INDICTMENT JOINDER OP DEFENDANTS. 405 same where two or more commit a battery,* or are guilty of extortion;® or are concerned in a common violation of the Lord's day;* or are engaged in the same boat in unlawfully fishing.'' And parties to the crime of adultery may be indicted jointly;® though where two are jointly indicted for fornication or adultery, and are tried to- gether, and one pai*ty is found guilty and the other not guilty, no judgment can be rendered against the former.^ Where property has been obtained under false pretenses, and the false pretenses were conveyed by words spoken by one defendant in the presence of others, all of whom acted in concert together, all parties may be indicted jointly.^" And where two persons are jointly indicted and one only is tried, a separate count charging the lat- ter alone with the crime is unnecessary.^^ § 352, BXJT NOT WHEN OFFENSES ABE SEVERAL. But where the offenses are necessarily several there can be no joinder.^ It is true that where a libellous song was sung by two men, it was held that they might be indicted Mo. 317; Rucker v. State, 7 Tex. 9 State v. Mainor, 28 N. C. (6 App. 549. Ired.) 340. 4 State V. Lonon, 19 Ark. 577; loR. v. Young, 3 T. R. 98. Lewis V. State, 33 Ga. 131; Fowler ii Weatherford v. Com., 73 Ky. V. State, 50 Tenn. (3 Heisk.) 154 (lo Bush) 196; State v. Bradley, (where the Indictment was against 9 Rich. (S. C.) 168. two for assault and battery upon 1 mfja, § 366. ALA.-Elliott v. *^''®®^- State, 26 Ala. 78; McGehee v. 5 Kane v. People, 8 Wend. (N. Y.) gtate, 58 Ala. 360. MISS.— How- 203; R. V. Trafford, 1 Barn. & Ad. ^^d v. State, 83 Miss. 378, 35 So. 874, 20 Bng. C. L. 726; R. v. At- 653. TENN.— State v. Powell, 71 kinson, 1 Salk. 382, 91 Bng. Rep. Tg^^ (3 Lea) 164. FED.— United 333. States v. Kazinski, 2 Spr. 7, Fed. 6 Com. v. Sampson, 97 Mass. 407. cas. No. 15508. 7 Com. V. Weatherhead, 110 Though see, Young v. R., 3 T. R. Mass. 175. 106; R. v. Kingston, 1 Bast 468. 8 Com. V. Elwell, 43 Mass. (3 in state v. Deaton, 92 N. C. 788, Met.) 190, 35 Am, Dec, 398; State u was held that two could not be V. Mainor, 28 N. C. (6 Ired.) 340. jointly indicted for drunkenness. But see Kerr's Whart. Crim. But suppose two should agree to Law, § 1602, . get drunk together? 406 CEIMINAL PROCEDURE. § 352 jointly ;2 and the same view has been taken where two or more persons join in any other Idnd of publication of a libel ; yet if the utterance of each party be distinct, as if two booksellers, not being partners, sell the libel at their respective shops, they must be indicted separately. Two or more can not be jointly indicted for perjury,^ or for seditious, obscene, or blasphemous words, or the like, because such offenses are in their nature distinct.*^ And if A. and B. are jointly indicted and tried for gaming, and the evidence shows that A. and others played at one time when B. was not present, and B. and others played at another time when A. was not present, no con- , viction can be had against them.® If, also, the offense charged does not wholly arise from the joint act of all the defendants, but from some personal and particular act or omission of each defendant (e. g., as with larceny and receiving, or receiving at distinct times)," the indict- ment must charge them severally and not jointly. '^ And it has been held that when A. strikes B. on one day, and C. strikes B. on another, A. and C. can not be included jointly in one count.® 2R. V. Benfield, 2 Burr. 985. 6 Home v. State, 37 Ga. 80, 92 See Kerr's Whart. Crim. Law, Am. Dec. 49; Stephens v. State, 14 §1924. Ohio 386; United States v. Kazin- 3 R. V. Phillips, 2 Str. 921, Kerr's ski, 2 Spr. 7, Fed. Cas. No. 15508; Whart. Crim. Law, § 1517. R. v. Dove, 2 Den. C. C. 92, 4 Cox 4 Cox v.. State, 76 Ala. 66; State C. C. 478; infra, § 366. V. Roulstone, 35 Tenn. (3 Sneed) 7 People v. Hawkins, 34 Cal. 181; 107. Baker v. People, 105 111. 452; Com. 5 Elliott V. State, 26 Ala. 78 ; v. Jones, 136 Mass. 173 ; Vaughn Lindsay v. State, 48 Ala. 169; Gal- v. State, 4 Mo. 530; Com. v. Miller, breath V. State, 36 Tex. 200; State 2 Pars. (Pa.) 480; R. v. Messing- V. Homan, 41 Tex. 155. ham, 1 M. C. C. 257; R. v. Parr, 2 Contra: Com. v. MoChord, 32 M. & Rob. 346. Ky. (2 Dana) 242. 8 R. v. Devett, 8 Car. & P. 639, Fop joint game there can be 34 Eng. C. L. 936. joint Indictment. — Coog v. State, Infra, § 366. 4 Port. (Ala.) 180; State v. Ho- Concert justifies joinder. — Al- man, 41 Tex. 155; Com. v. Mc- though the acts are several yet Guire, 1 Va. Cas. 119. there can be no exception to a §§ 353-355 INDICTMENT ^PRINCIPALS. 407 § 353. So AS TO OFFICERS WITH SEPAEATB DUTIES. Persons holding different offices with separate duties can not be jointly indicted for a misdemeanor in office.^ Thus, an indictment charging such an offense against the in- spectors, clerks, and jiidge of an election, was held bad on demurrer.^ § 354. Peincipals and accessokies can be joined. Prin- cipals in the first and second degree, and accessories, before and after the fact, may all be joined in the same indictment, and they may be convicted of different de- grees;^ or the principals may be indicted first, and the accessories after the conviction of the principals.^ And their relation may be transposed in alternate counts.^ § 355. In conspieacy at least two must be joined. In conspiracy, where one can not be indicted for an offense committed by himself alone, the acquittal of all charged in the same indictment with him, as co-defendants, must joinder if concert be inferred. in extortion. — ^R. v. Tisdale, 20 Up. And this is good, although the Can. Q. B. 272. only evidence for the prosecution g Com. v. Miller. 2 Pars. (Pa.) Is of separate acts, at separate ^gj^ times and places, done by several . „ „ , ,-„ „ , titi, ^ ^ , . 12 Hale 173 ; Kerr's Whart. persons charged as accessories, „ . ^ „„ „ '. „„„ „ ,^, . ,„,„„ „„„.„,-..,-„„ ,. T.„^_ Crim. Law, §§ 26^, 270. CONN.- upon which a conviction is had. — R. V. Barber, 1 Car. & K. 442, 47 Eng. C. L.. 442. Several receivers. — ^Although as a rule several receivers can not be jointly charged in the same count with separate and distinct acts of receiving. — R. v. Pulham, 9 Car. & P. 281, 38 Eng. C. L. 172. — Too late, after verdict, to ob- ject that they should have been indicted separately. — R. v. Hayes, 2 M. & Rob. 156. 2 People v. Valencia, 45 Cal. 304. 1 State V. Hale, 97 N. C. 474, 1 See Kerr's Whart. Crim. Law, S. E. 683; Com. v. Ziest, 5 Lane. §§239 et seq. L. Rev. (Pa.) 138. 3 Supra, § 350; Hawley v. Com., Otherwise when officers concur 75 Va. 847. State V. Hamlin, 47 Conn. 95, 36 Am. Rep. 54. MASS.— Mask v. State, 32 Mass. (15 Pick.) 405; Com. V. Drew, 57 Mass. (3 Cush.) 384; Com. v. Felton, 101 Mass. 14. N. Y.— Klein v. People, 31 N. Y. 229. S. C. — State v. Putnam, 18 S. C. 175, 44 Am. Rep. 569. ENG. — ^R. V. Greenwood, 2 Den. C. C. 453; R. V. Moland, 2 Mood. C. C. 270. 408 CRIMINAL PEOCEDUEB. § 356 of course extend to Mm,^ nor when the jury fail to agree as to one of two co-conspirators, can there be a convic- tion of the other.2 In an indictment for conspiracy, less than two can not possibly be joined;* a wife and husband together not being sufficient. A charge of conspiracy can not be sustained against two defendants one of whom was at the time of the offense insane.* One de- fendant may be tried alone, when his co-conspirators are alleged to be unknown,^ or when such conspirators are dead, or absent, or previously convicted.* From the peculiar character of the pleading in con- spiracy, a new trial as to one defendant is a new trial as to all.'' § 356. In kiot, three must be joined. In an indict- ment for riot, when the offense is not charged to have been committed with persons unknown, unless three of the parties named are proved to have been concerned, they must all be acquitted.^ Where there is an allega- tion of defendants unknown, or there are co-defendants, 1 IND. — Turpin v. State, 4 See, also, Kerr's Whart. Ciim. Blackf. 72. N. Y.— People v. How- Law, §§100, 1659; infra, §§ ell, 4 John. 296. N. C— State v Malnor, 28 N. C. (6 Ired.) 340. 4 See Brackenridge's Miscella- TENN.— State v. Allison, 11 Tenn. nies 223. (3 Yerg.) 428. ENG. — ^R. v. Kin- s United States v. Miller, 3 nersley, 1 Str. 193, 93 Eng. Rep. Hughes C. C. 553, Fed. Gas. No. 467; R. V. Sudbury, 12 Mod. 262, 1 15774; Kerr's Whart. Grim. Law, Ld. Raym. 484, 91 Eng. Rep. 1222. § 1655. As to conspiracy, see Kerr's « State v. Buchanan, 5 Har. & J. Whart. Grim. Law, §§1655 et seq. (Md.) 500; R. v. Cooke, 5 Barn. As to verdict, see, infra, § .... & C. 538, 11 Eng. G. L. 574; R. v. 2R. V. Manning, L. R. 12; Q. B. Cooke, 7 Dow. & R. 673. 16 Eng. D. 241; 51 L. T. N. S. 121. C. L. 316; R. v. Kenrick, 5 Ad. & sst^tev. Covington, 4 Ala. 603; ^1- N. S. (5 Q. B.) 49, 48 Eng. State V. Sam, 13 N. G. (2 Dev.) ^- ^- ^^• 569; Com. v. Manson, 2 Ashm. Supra, § 146. (Pa.) 31; United States v. Cole, 5 7 R. v. Gompertz, 9 Ad. & El. McL. C. C. 513, Fed. Cas. No. N. S. (9 Q. B.) 824, 58 Eng. C. L. 14832; R. v. Gompertz, 9 Ad. & 823. Infra, §§ , El. N. S. (9 Q. B.) 824, 58 Eng. i Penn v. Hurston, Addis. (Pa.) G. L. 823. 334. §§357,358 INDICTMENT MISJOINDER. 409 dead or absent, or previously convicted, the case is other- wise.2 The effect of charging the offense to have been committed by persons "unknown" has been further con- sidered under another head.* § 357. Husband and wife may be joined. As has been seen in another volume, there is no technical objection to an indictment joining a married woman with her hus- band.^ And this rule has been applied to indictments for assault ;* for keeping disorderly and gaming houses ;^ for forcible entry and detainer ;* for murder f for steal- ing and receiving.® The presumptions of law in such cases are elsewhere considered.'' § 358. Misjoinder mat be excepted to at any time. Misjoinder of defendants, when apparent on the record, may be made the subject of a demurrer, a motion in arrest of judgment, or writ of error ; or the court will in some cases quash the indictment.^ When the misjoinder ap- pears in evidence an acquittal may be ordered. If, how- ever, two be improperly found guilty separately on a As to riot, see Kerr's Whart. 2 State v. Parkerson, 1 Strobh. Crim. Law, §1861. (S. C.) 169; R. v. Cruse, 8 Car. & 2 State V. Egan, 10 La. 698; P. 541, 34 Eng. C. L. 881. Klelnv. People, 31 N.Y. 229; R. v. s Com. v. Murphy, 68 Mass. (2 Scott, 3 Burr. 1262. 97 Eng. Repr. Gray) 510; Com. v. Cheney, 114 822. Mass. 281; State v. Bentz, 11 Mo. As to verdict, see, infra, § 27; R. v. Williams, 10 Mod. 63; 3 S u p r a, II 146, 153; Kerr's r_ y, Dixon, 10 Mod. 335. Whart. Crim. Law, II 1658, 1863 , ^^^^ ^_ ^^^^^^^ 3 j^_ ^_ ^^_ BR. V. Cruse, 8 Car. & P. 541, 34 Eng. C. L. 881. 1 Kerr's Whart. Crim. Law, | 93 ALA.— Rather v. State, 1 Port. 132, ME.— State v. Nelson, 29 Me. 329. MASS.-Com. V. Trimmer, 1 Mass. « ^- ^- M'Athey, 9 Cox C. C. 251. 476; Com. v. Lewis, 42 Mass. (1 7 Kerr's Whart. Crim. Law, §96. Met.) 151; Com. v. Tryon, 99 Mass. l Young v. R., 3 T. R. 103-106; 442. MO. — State v. Bentz, 11 Mo. 1 Stra. 623 ; Com. Dig. Ind. H. 27. S. C— State v. Collins, 1 McC. as to new trial, see, infra, % .... 355. BNG.-R. v. Matthews 1 ^^^^^ ^^^^ ^^^ „^ .^ ^^^^ ^^^^^ Den. C. C. 596; R. v. Hammond^ 1 g^^ g^^^^ ^ Underwood, 77 N. C. Leach 499; R. v. Sergeant, 1 Ry. & M. 352, 21 Eng. C. L. 764. 502; State v. Lindsay, 78 N.. C. 499. 410 CEIMINAl, PEOCEDUEE. §§ 359, 360 joint indictment, the objection may, in general, be cured by producing a pardon or entering a nolle prosequi as to the one of them who stands second on the verdict. Dur- ing the trial the difficulty may be relieved by a nolle prosequi, or an acquittal of a defendant improperly joined. If there be error in this respect a new trial may be granted.^ § 359. Death need not be suggested on eecokd. Where two persons are indicted for a conspiracy, and one of them dies before the trial, and it proceeds against both, it is no mistrial, and entry of a suggestion of the death on the record is unnecessary.^ 2. Severance. § 360. Dependants may elect to seveb. Where sev- eral persons are jointly indicted, they may be tried sepa- rately, at the election of the prosecution^ or of the de- fendants. The prosecution may sever as a matter of right ;^ but the question of severance is usually raised by the defendants themselves, as to whom the matter is left to the discretion of the court.^ Where they elect to 2 When the indictment charges Maton v. People, 15 111. 536. A. and B. only as conspirators, a IND. — Lawrence v. State, 10 Ind. nolle prosequi as to A. has been 453. LA. — State v. Johnson, 38 held to operate as an acquittal of La. Ann. 18. ME. — State v. Con- B.— State V. Jackson, 7 S. C. 283, ley, 39 Me. 78. MASS.— Com. v. 24 Am. Rep. 476. See State v. Jenks, 138 Mass. 484. NEV.— State Tom, 13 N. C. (2 Dev. L.) 569. v. McLane, 15 Nev. 345. N. H.— 1 R. V. Kenrick, 5 Ad. & El. N. S. State v. Doolittle, 58 N. H. 92. (5 Q. B.) 49, 48 Bng. C. L. 48. OHIO — Whitehead v. State, 10 TT V -,-. T.V.-, .,„ '^^^° St. 449. PA.— Com. v. Man- 1 Com. V. Hughes, 11 PhUa. 430. ^^^_ ^ j^^^^ 3^ ^ I.-State v. 2 State V. Thompson, 13 La. Ann. O'Brien, 7 R. I. 336. S. C— State 515; State v. Bradley, 9 Rich, y ^^^^6, 7 Rich. L. 412; State v. (S. C.) 168; State v. McGrew, 13 McGrew, 13 Rich. 316. TENN.— Rich. (S. C.) 313. Robinson v. State, 69 Tenn. (1 3 ALA. — Hawkins v. State, 9 Lea) 673. VA. — Curran's Case, 7 Ala. 137, 44 Am. Dec. 431; Wade Gratt. 619; Com. v. Lewis, 25 V. State, 40 Ala. 74; Parmer Gratt. 938. FED.— United States V. State, 41 Ala. 416. ILL. — v. Collyer, Bowlby's Wharton on §361 SEVERANCE, WHEN. 411 be tried separately, and where the application is granted by the court, the prosecuting officer may elect whom he will try first,* which is usually at his discretion.^ But after the jury have been sworn, and part of the evidence heard, it is usually too late for either defendant to de- mand a separate trial.* § 361. Severance sbotji^d be granted when defenses CLASH. Where the defenses of joint defendants are an- tagonistic, it is proper to grant a severance.^ And this is eminently the case where one joint defendant has made No. Homicide, 708-710, Fed. Cas 14838. When the wife of one defendant is a witness for the others. See Com. V. Easland, 1 Mass. 15; Com. V. Manson, 2 Ashm. (Pa.) 31; Whart. Crim. Ev., § 445. At common law, a severance will not be granted to enable one de- fendant to be a witness for the other; as even on separate trials this result could not be reached. — United States v. Gibert, 2 Sumn. C. C. 19, Fed. Cas. No. 15204. When, however, there is no evi- dence against a particular defen- dant, or the evidence is but slight, the court may direct an acquittal of such defendant, so as to rehabil- itate him as a witness. — Com. v. Eastman, 55 Mass. (1 Cush.) 189; 48 Am. Dec. 596; State v. Roberts, 15 Mo. 28. See Whart. Crim. Ev., §445. In Tennessee this is a statutory right.— State v. Knight, 62 Tenn. (3 Baxt.) 418; Robinson v. State, 69 Tenn. (1 Lea) 673. In Texas, also. It Is a statutory right. — Slawson v. State, 7 Tex. 63; Rucker v. State, 7 Tex. App. 549; Krebs v. State, 8 Tex. App. 15. A verdict of Insanity of one joint defendant works a severance. See Marler v. State, 67 Ala. 55, 42 Am. Rep. 95. 4 Jones V. State, 1 Kelly (Ga.) 610; Com. v. Berry, 71 Mass. (5 Gray) 93 (riot); People v. Mcln- tyre, 1 Park. Cr. Rep. 371; People V. Stockham, 1 Park. Cr. Rep. 424. 5 Patterson v. People, 46 Barb. (N. Y.) 625. As to misdemeanors, see People v. White, 55 Barb. (N. Y.) 606. Holding that in such cases error does not lie. See State v. Lindsay, 78 N. C. 499. As to calling one as a witness for the other, see Whart. Crim. Ev., § 445. 6 McJunkins v. State, 10 Ind. 140. 1 ALA. — Hawkins v. State, 9 Ala. 137, 44 Am. Dec. 431; Thompson v. State, 25 Ala. 41. ILL. — Maton v. People, 15 111. 536. ME.— State v. Soper, 16 Me. 293, 33 Am. Dec. 665. • MASS. — Com. V. Robinson, 67 Mass. (1 Gray) 555. MISS.— Mask V. State, 32 Miss. 405. TENN.— Roach V. State, 45 Tenn. (5 Cold.) 39. FED.— United States v. Mar- chant, 25 U. S. (12 Wheat.) 480, 6 L. Ed. 700; United States v. Kelly, 4 Wash. C. C. 528, Fed. Cas. No. 15516. In Texas this ia by statute. — 412 CRIMINAL PKOCEDUEE. §§ 362, 363 a confession implicating both, and which the prosecution intends to offer on trial.^ § 362. In conspieacy aistd pjot, severance. In con- spiracy and riot, though it was once thought otherwise,^ it is now held the defendants may claim separate trials. And when the case is tried jointly, the court must direct the jury that they are not to permit one defendant to be prejudiced by the other's defense.^ 3. Verdict and Judgment. § 363. Joint defendants may be convicted of differ- ent GRADES. Joint defendants may be convicted of differ- , ent grades.^ Thus, where two or more defendants are jointly charged in the same indictment with murder, it is competent for the jury to find one guilty of murder, and another of manslaughter, and on such a verdict being rendered it will not be disturbed by the court as irregu- lar.^ So, also, in assault and battery, one may be found guilty of assault and another of battery,* A fortiori a verdict is good in ordinary cases where the jury convict one, and acquit or disagree as to the other.* Willey V. State, 22 Tex. App. 408, Shouse v. Com., 5 Pa. St. 83 ; State 3 S. W. 570. V. Arden, 1 Bay (S. C.) 487; R. v. 2 Com. V. James, 99 Mass. 438. Butterworth, R. & R. 520. See R. V. Dove, 2 Den. C. C. 86, 4 Cox 1 Com. V. Manson, 2 Ashm. (Pa.) 31; supra, § 355. C. C. 428, 2 Eng. L. & Eq. Rep. „ , . „_ „ ,., 532, 2 Benn. & Heard Lead. Cases 2 Com. V. Robinson, 67 Mass. (1 ^gg. ^j^^^^ ^^^^ ^^ _ ^ ^3g Gray) 555. 2 Mask v. State, 32 Miss. 406; As to Virginia practice, see Acts United States v. Harding, 1 Wall. 1877-8, ch. xvii, § 31. jj. 127, Fed. Gas. No. 15301. As to New Hampshire, see State Compare: Hall v. State, 8 Ind. V. Doollttle, 58 N. H. 92. 439. In Ohio, by statute, joint defen- 3 White v. People, 32 N. Y. 465. dants can claim separate trials by 4 gge, supra, § 355; State v. Vin- right. Crim. Proc, §153. gon, 37 La. Ann. 792; Com. v. 1 Brown v. State, 28 Ga. 209; Wood, 12 Mass. 313; Com. v. Cook, Klein v. People, 31 N. Y. 229; 6 Serg. & R. (Pa.) 577, 9 Am. Dec. White V. People, 32 N. Y. 465; 465; R, v. Cooke. 5 Barn. & C. 538, §§ 364, 365 SEVERANCE, SEVERAL. 413 § 364. Defendants may be conviotbd sevebally. Where one of several defendants is tried alone, he may be con- victed alone ;i nor is it ground of exception that the others who were jointly indicted were not tried.^ § 365. Sentence is to be sevebal. In an indictment against two or more, when the charge is several as well as joint, the conviction is several ;^ so that if one is found guilty, judgment may be rendered against him, although one or more may be acquitted. To this rule there are exceptions, as in case of conspiracy or riot, to which the agency of two or more is essential ; but violations of the license law, not being within the reason of these excep- tions, come under the general rule.^ Subject to these exceptions when parties are jointly indicted and con- 11 Eng. C. L. 574, 7 Dow. & Ry. 673, 16 Eng. C. L. 316; R. v. Tag- gart, 1 Car. & P. 201, 12 Eng. C. L. 123. On an indictment against three, a joint verdict finding each defen- dant guilty by name is in sub- stance a distinct verdict against each defendant. — Fife v. Com., 29 Pa. St. 429. Several defendants, verdict joint or several in form, is several in effect. — ^R. V. Mowbery, 6 T. R. 638. 1 This is prescribed in Rev. Stats. U. S., §1036, 2 Fed. Stats. Ann. (1st ed.), p. 353, 2 id. (2d ed.), p. 692. 2 Supra, § 355, and cases cited; Cruce V. State, 59 Ga. 84; Com. V. McChord, 32 Ky. (2 Dana) 243; State V. Bradley, 30 La. Ann. (Pt. I) 326; State v. Clayton, 11 Rich. (S. C.) 581. 1 State V. Smith, 24 N. C. (2 Ired.) 402; State v. Brown, 49 Vt. 437. As to joint receivings, Kerr's Whart. Crim. Law, § 1235. In case of assault charge is sev- eral. — Com. V. Grilfin, 38 Mass. (21 Pick.) 523; Jennings v. Com., 105 Mass. 586; Com. v. O'Brien, 107 Mass. 208; R. v. Carson, R. & R. 303. 2 Com. V. Griffin, 57 Mass. (3 Cush.) 523. As to adultery, see State v. Ly-' erly, 52 N. C, (7 Jones) 159. One defendant on an indictment is not liable for the costs of others jointly indicted with him. — Moody V. People, 20 111. 315; State v. Mc- O'Blenis, 21 Mo. 272. One attorney's or clerk's costs only can be collected on a joint verdict. — Com. v. Sprinkle, 5 Leigh (Va.)' 650. See Calico v. State, 4 Ark. (4 Pike) 430; Seariglit v. Com., 13 Serg. & R. (Pa.) 301. 414 CRIMINAL PEOCEDUEE. §§ 366, 367 victed, they should be sentenced severally,* and the im- position of a joint fine is erroneous.* § 366. Offense must be joint to justify joint verdict. To convict of a joint charge, the act proved must be joint. One offense proved against one defendant, and a subse- quent offense against another, can not justify a convic- tion, unless the offenses are overt acts of treason or conspiracy, which are charged as such.^ Thus, two defendants can not be convicted upon proof that each one committed an act constituting an offense similar to the act charged in the indictment.^ And so a man and a woman can not be jointly convicted of a single act of adultery upon the admission by one of an act of adultery committed at one time, and an admission by the other of an act of adultery committed at another time.* XIX. Statutes of Limitation, ^ 367. CONSTEUCTION TO BE LIBBKAL TO DEFENDANT. While, as will be hereafter seen, courts look with dis- favor on prosecutions that have been unduly delayed,^ there is, at common law, no absolute limitation which prevents the prosecution of offenses after a specified 3 See cases cited supra In this In gaming, joint indictments section; Straughan v. State, 16 have been sustained against par- Ark. 37; Curd v. Com., 53 Ky. (14 ties taking separate parts In the B. Mon.) 386; Waltzer v. State, 3 game game.— Com. v. McChord, 32 Wis. 785. Ky. (2 Dana) 242. 4 Curd V. Com., 53 Ky. (14 B. Mon.) 386; State v. 'Gay, 10 Mo. 440; State v. Berry, 21 Mo. 504; ^ , „^ .„.,,„ State V. Hollencheik, 61 Mo. 302. J'>^°^°'' ^- ^tate, 13 Ark. (8 Bug.) 1 Supra, § 352; R. v. Pulham, 9 ^^^- ^^^^ ^- H°™^°' ^^ '^^^- l^^' Car. & P. 281, 38 Eng, C. L, 172; '" England, it is said that when R. V. Dove, 2 Den. C. C. 86; R. v. there is a joint conviction for sep- Hempstead, R. & R. 344. arate acts, the conviction may be Compare: R. v. Barber, 1 Car. sustained as to the party proved & K. 442 47 Eng. C. L. 442. to have committed the first felony 2 Stevens v. State, 14 Ohio 386. in order of time.— R. v. Gray, 2 3 Com. v. Cobb, 80 Mass. (14 Den. C. C. 87. Gray) 57. i Seo, infra, § 377. Contra: Elliott v. State, 26 Ala. 78; Lindsay v. State, 48 Ala. 169; § 367 LIMITATIONS — CONSTRUCTION. 415 time has arrived. Statutes to this effect have been passed in England and in the United States, which we now pro- ceed to consider. We should at first observe that a mis- take is sometimes made in applying to statutes of limi- tation in criminal suits the construction that has been given to statutes of limitation in civil suits. The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legisla- ture as an impartial arbiter between two contending parties. In the construction of the statute, therefore, there is no intendment to be made in favor of either party. Neither grants the right to the other; there is therefore no grantor against whom the ordinary pre- sumptions of construction are to be made. But it is otherwise when a statute of limitation is granted by the State. Here the State is the grantor, surrendering by act of grace its rights to prosecute, and declaring the offense to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the of- fense ; that the offender shall be at liberty to return to his country, and resume his immunities as a citizen ; and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of limitation are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt.^ Independently of these views, it must be remembered 2 This is well exhibited In a Brougham (Works, etc., Edinb. ed. famous metaphor by Lord Plun- of 1872, iv 341) that "It can not kett, of which it is said by Lord be too much admired for the per 416 CRIMINAL PROCEDURE. §368 that delay in instituting prosecutions is not only pro- ductive of expense to the State, but of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the policy of the law that prosecutions should be prompt, and that statutes enforcing such promptitude should be vigorously maintained. They are not merely acts of grace, but checks imposed by the State upon itself, to exact vigi- lant activity from its subalterns, and to secure for crimi- nal trials the best evidence that can be obtained.* § 368. Statute need not be speciaxijY pleaded. Al- though at one time it was thought otherwise, the rule is now generally accepted that the plea may be taken ad- fect appropriateness of the figure, its striking and complete resem- blanice, as well as its raising before us an image previously familiar to the mind in all particulars, except its connection with the subject for which it is so unexpectedly but naturally introduced." "Time," so runs this celebrated passage, "with his scythe in his hand, is ever mowing down the evidences of title; wherefore the 'wisdom of the law plants in his other hand the hour-glass, by which he metes out the periods of that possession that shall supply the place of the muni- ments his scythe has destroyed." In other words, the defense of the statute of limitations is one not merely of technical process, to be grudgingly applied, but of right and wise reason, and, therefore, to be generously dispensed. The same thought is to be found in another great orator: XaB) a fui Hai 'tSu nt WftdtTfttat rf/UW i . .' . itiuT yif fui Ka! i liXnt cihiif jxx«pi htnit &in>ai airh, i riS ftn rvxo^arriTirdm ^/Aaf- ToMT juiv yhf aiutm/iiiiois Itumi r^- virtl In hyirart itrau llrtrfajardai. xarA lyioa ov Tov; ti cvjudaXorra; xeii rohi fttifTvpaf alt {w To» tfjuw inl roirtn t9iiii»>, Sitti ttifTvt itv -nv Jwatoci tilf ifi^tis,. Demos- thenes, pro Phorm. ed. Reiske, p. 952. To the same effect may be no- ticed Woolsey's Pollt. Phil., § 123 ; and see United States v. Norton, 91 U. S. 566, 23 L. Ed. 454. 3 A qui tarn action on the act prohibiting the slave - trade is within the limitation of the fed- eral statute. — Adams v. Woods, 2 Cr. C. C. 836, Fed. Gas. No. 5251. So is an action for a penalty under the Consular Act of 1803. — Parsons v. Hunter, 2 Sumn. C. C. 419, Fed. Cas. No. 10778. Two years' limitation of suits for penalties is repealed by impll- cation by act of 28th February, 1839, which extends the time to five years. — Stimpson v. Pond, 2 Curt. C. C. 502, Fed. Cas. No. 13455; United States v. Fehren. back, 2 Woods. C. C. 175, Fed. Cas. No. 15083. See People v. Haun, 44 Cal. 96. §369 LIMITATIONS AVERMENT. 417 vantage of on the general issue.^ But the defense should be interposed before conviction, and can not, unless ap- pearing on the indictment, be made subsequently.^ ■§ 369. Indictment should avek offense within stat- ute, OE, IF EXCLUDED BY STATUTE, SHOULD, BY STBICT PKAC- tice, avee FACTS OF EXCEPTION. Ordinarily, as we have seen,^ the offense must be laid in the indictment within the time fixed by the statute of limitations. On the other hand, where the statute does not impose an absolute and universal bar, but only a bar in certain" lines of cases, the prosecution may lay the offense outside the statute, and may prove, without averring it in the indictment, that the defendant was within the exceptions of the stat- ute.^ Where this view obtains, the fact that the offense 1 GA. — McLane v. State, 4 Ga. 335. IND. — Hackney v. State, 8 Ind. 494; Hatwood v. State, 18 Ind. 492. IOWA— State v. Hussey, 7 Iowa 409. N. H.— State v. Robin- son, 29 N. H. (9 Frost.) 274. N. Y. — Contra: People v. Roe, 5 Park. Cr. Rep. 231. N. C. — State V. Carpenter, 74 N. C. 230. PA. — Com. V. Ruffner, 28 Pa. St. 259, overruling Com. v. Hutchinson, 2 Pars. 453. TENN.— State v. Bowl- ing, 29 Tenn. (10 Humph.) 52. FED. — United States v. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538; United States v. Watklns, 3 Cr. C. C. 441, Fed. Gas. No. 16649; United States v. White, 5 Cr. C. C. 73, Fed. Cas. No. 16676; United States V. Smith, 4 Day (Conn.) 121, Fed. Cas. No. 16332; United States V. Brown, 2 Low. 267, Fed. Cas. No. 14665; Johnson v. United States, 3 McL. C. C. 89, Fed. Cas. No. 7418. ENG.— R. v. Phillips, R. & R. 369. As to duplicity in sucli pleas, see United States v. Shorey, 9 Int. Rev. Rec. 201, Fed. Cas. No. 16280. I. Crim. Proo. — 27 2 Supra, § 180; State v. Thomas, 30 La. Ann. (Pt. I) 301. ' 1 Supra, § 179. 2 ILL.--Lamkin v. People, 94 111. 101. IND.— State v. Rust, 8 Blackf. 195. ME.— State v. Hobbs, 39 Me. 212. N. Y.— People v. Van Sant- voord, 9 Cow. 655. PA. — Com. v. Hutchinson, 2 Pars. 453. TENN. — State V. Bowling, 29 Tenn. (10 Humph.) 52. FED. — United States V. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538; United States v. White, 5 Cr. C. C. 73, Fed. Cas. No. 16676; United States v. Bal- lard, 3 McL. C. C. 469, Fed. Cas. No. 14507. , In United States v. Cook, 84 , U.' S. (17 Wall.) 168, 21 L. Ed. 538, ; an indictment charged the accused j with the comniission, more than I two years previously, of certain acts amounting to an offense as de- fined by an act of Congress; an- other act limited prosecutions for this and other offenses to two years, unless the accused had been a fugitive from justice. On de- murrer the Indictment was held 418 CRIMINAL PROCEDURE. §369 is on the face of the indictment prima facie barred can not be taken advantage of by demurrer, or motion to quash, nor a fortiori by arrest of judgment.* But where a statute exists limiting all prosecutions within fixed peri- ods, the more exact course is to state the time correctly in the indictment, and then aver the exception, and this mode of pleading is now generally required.* Perhaps the conflict may be reduced by appealing to the tests here- tofore asserted,® and holding that when the exception is part of the limitation it must be pleaded,* but when it is good, though, it did not allege that the accused was within the excep- tion. 3 See, supra, § 179. COLO. — Packer v. People, 26 Colo. 306, 57 Pac. 1087. GA.— Clark v. State, 12 Ga. 350. IOWA— State v. Hussey, 7 Iowa 409. LA. — State v. Thomas, 30 La. Ann. (Pt. I) 301. ME.— State V. Thrasher, 79 Me. 17, 7 Atl. 814. N. Y.— People v. Van Sant- voord, 9 Cow. 655. PA.^r-Com. v. Hutchinson, 2 Pars. 453. S. C.^ State V. Howard, 15 Rich. L. 274. TENN. — State v. Bowling, 29 Tenn. (10 Humph.) 52. FED. — United States V. Cook, 84 TJ. S. (17 Wall.) 168, 21 L. Ed. 538; United States V. White, 5 Cr. C. C. 73, Fed. Cas. No. 16676. ENG.— R. v. Treharne, 1 Moody 298. As to arrest of judgment. — White V. State, Texas, reported in Cent. L. J. Dec. 13, 1878, 6 Tex. App. 476. 4 CAL. — People v. Miller, 12 Cal. 291. GA. — McLane v. State, 4 Ga. 335. IND.— State v. Rust, 8 Blackf. 195; see Hatwood v. State, 18 Ind. 492. LA.— State v. Bilbo, 19 La. Ann. 76; State v. Pierce, 19 La. Ann. 90; State v. Bryan, 19 La. Ann. 435. MICH. — People v. Greg- ory, 30 Mich. 371. MO.— State v. English, 2 Mo. 182; State v. Hobbs, 39 Mo. 212; State v. Meyers, 68 Mo. 266. N. H.— State v. Robin- son, 29 N. H. (9 Fost.) 274. VT.— State V. G. S., 1 Tyl. 295; Vaughn V. Congdon, 56 Vt. Ill, 48 Am. Rep. 758. VA.— Sledd v. Com., 19 Gratt. 818. WASH.— State v. Myrberg, 56 Wash. 586, 105 Pac. 624. Contra: State, v. Ball, 30 W. Va. 386, 4 S. E. 645. Elementary rule of criminal pleading that when the time for prosecuting an otCense is limited, the indictment must lay the of- fense within the time limited, or it will be fatally defective, even after verdict. — ^Vaughn v. Congdon, 56 Vt. Ill, 48 Am. Rep. 758. Wl^en plea of limitation is good on the face of the indictment, the burden of proof is on the state to overthrow a plea of the statute. — State V. Snow, 30 La. Ann. 401. See State v. Williams, 30 La. Ann. 842. 6 Supra, § 288. 6 Church V. People, 10 111. App. 222. §§ 370, 371 LIMITATIONS — OPEEATION OF STATUTE, 419 contained in a subsequent clause, and is clearly matter of rebuttal, then such a particularity is not needed.'' In any view a special averment that the offense was committed within the statute is unnecessary.* § 370. Statute, unless general, opekates on offenses IT SPECIFIES, ONLY, Statutory words of description must be taken in their technical exclusive sense, when it ap- pears they are used as specifications. Thus, "penalty" has been held to include only civil suits,^ and "deceit" has been ruled not to include "conspiracy."'^ On the other hand, on reasoning already given, when an offense is described, not as the technical term for a species, dis- tinguished from other specific terms, but as nomen gener- alissimum, then it is to have a wide and popular con- struction. § 371. Statute is eeteospeotivb. As a role, statutes of limitation apply to offenses perpetrated before the passage of the statute as well as to subsequent offenses.^ T Garrison v. State, 87 111. 96; the District of Columbia, see: see State v. Gill, 33 Ark. 129, and United States v. Slacum, 1 Or. also article by Mr. Heard in 1 C. C. 485, Fed. Gas. No. 16311; Grim. Law Mag. 451. United States v. Porter, 2 Gr. G. C. 8 Supra, §§207, 288; though see ^0, Fed. Gas. No. 16072; United State V. Noland, 29 Ind. 212. States v. Watkins, 3 Cr. C. C. 442, 1 S t a t e V. Thomas, 8 Rich. (S. G.) 295; State v. Free, 2 Hill (S. G.) 628. Fed. Gas. No. 16649. In New York, the Act of 1873, extending the time for finding an indictment from three to five 2 State V. Christianburg. 44 N. G. years, has been held not to cover (Busbee) 46. offenses committed before its pas- 1 Com. V. Hutchinson, 2. Pars. sage. — ^People v. Martin, 1 Park. (Pa.) 453. But see Martin v. State, Cr. Rep. 187, 2 Edm. Sel. Gas. 28, 24 Tex. 61; Adams v. Woods, 2 Gr. 7 Leg. Obs. 40, referring to People C. G. 342, Fed. Gas. No. 18100; v. Carnal, 6 N. Y. 463; Ely v. Hol- tfnited States v. White, 5 Gr. G. G. ton, 15 N. Y. 595; SanfOrd v. Ben- 73, Fed. Cas. No. 16676; Johnson nett, 24 N. Y. 20; Shepperd v. Peo- V. United States, 3 McL. G. C. 89, pie, 25 N. Y. 406; Hastings v. Fed. Gas. No. 7418; United States People, 28 N. Y. 400; Stone v. Fow- V. Ballard, 3 McL. G. G. 469, Fed. ler, 47 N. Y. 566; Amsbry v. Hinds, Cas. No. 14507. 48 N. Y.' 57; Moore v. Mausert, As to common-iaw offenses in 49 N. Y. 332; Hathaway v. John- 420 CRIMINAL PROCEDURE. §372 But the repeal of the statute of limitations does not affect the crimes and offenses committed prior to such repeal.^ § 372. Statute begiits to eun feom commission of CKiME — Continuous offenses. The statute begins to run on the day of the commission of the offense.^ This, as is well said, is to be dated from the period when the crime. is consummated.^ Instantaneous crimes, such as killing and arson, are consummated when they reach the point of completion. When a distinct result is necessary to completion, i. e., death to homicide, it becomes part of the crime, no mat- ter how long it may be delayed, and the offense is fixed son, 55 N. Y. 93, 14 Am. Rep. 186; Mongeon v. People, 55 N., Y. 613; Palmer v. Conway, 4 Den. 375, 376; Watklns v. Halght, 18 John. 138; Dash v. Van Cluck, 7 John. 477, 5 Am. Dec. 291; Johnson v. Burrell, 2 Hill 238; Calkins v. Calk- ins, 3 Barb. 305; McMannis v. Butler, 49 Barb. 176, 181; and see New York & O. M. R. Co. v. Van Horn, 57 N. Y. 473 ; People ex rel. Ryan v. Green, 58 N. Y. 295, 303, 304, cited in letter to Alb. L. J. of Sept. 23, 1875. In Pennsylvania It has been held that an act extending a statute of limitation is not ex post facto as to a crime against which the stat- ute had not run at the time of the extension. — Com. v. Duffy, 96 Pa. St. 506, 42 Am. Rep. 554. 2 Garrison v. People, 87 111. 96; People V. Martin, 1 Park. Cr. Rep. (N. Y.) 187, 2 Bdm. Sel. Cas. 28, 7 Leg. Obs. 40. In New Jersey It was at one time held that where a crime was committed more than two years before the repeal of a. statute lim- iting prosecutions to two years after the commission of a crime prosecuted, the repeal of the stat- ute and extension of the time of prosecution were not ex post facto as to such crime. — State v. Moore, 42 N. J. L. (13 Vr.) 208. This, however, was subsequently overruled. — State v. Moore, 43 N. J. li. (14 Vr.) 203; 39 Am. Rep. 558. See Kerr's Whart. Grim. Law, § 42. See criticism in Whart. Com. Am. Law, § 472. 1 McEntie v. Sandford, 42 N. J. L. (13 Vr.) 200; State v. Asbury, 26 Tex. 82. As to federal statutes bearing on revenue and pension offenses, see United States v. Hirsh, 100 XJ. S. 33, 25 L. Ed. 539; United States V. Coggin, 9 Blss. C. C. 416, 3 Fed. 492, 10 Rep. 687. In Louisiana the limitation in homicide runs from the death and not from the wound. — State v. Tay- lor, 31 La. Ann. 851. 2 Be r n e r, Lehrbuch d. Straf- rechts, 1871, p. 301. § 373 INDICTMENT SA\fES STATUTE. 421 in tlie moment tit the killing. With instantaneous crimes, therefore, the statute begins with the eons^irtifflation ( Vol- lendung) ; with continuous crimes, it begins with the ceas- ing of the criminal act or neglect. Continuous offenses, — such as. nuisances, the carrying of concealed weapons, use of false weights, etc., — endure after the period of concoction, and as long as the offense by the defendant's action or permission continues to exist.^ In bigamy, the statute runs from the bigamous mar- riage, unless the offense is made by statute continuous.* In the latter case the statute does not begin to run while the bigamous marriage relation continues.^ The time of the commission of the, offense is to be de- termined by parol proof.® § 373. Indictment or information saves statute. The procedure which must be instituted in order to save the statute is, in the federal statutes,, "indictment or infor- mation," and in the statutes of most of the States, "indictment." The finding of an informal presentment is not sufficient to take the case out of the statute;^ nor 3 As to what is a continuous Contra: Gise v. Com., 81 Pa. offense, see, supra, § 167; Buck- St. 428. alew V. State, 62 Ala. 334, 34 Am. See Kerr's Whart. Grim. Law, Rep. 22. § 2016. Nuisance is a continuing offense. ** Smith v. State, 62 Ala. 29. See State v. Guibert, 73 Mo. 20. When bar of statute intervenes. 4 Scogglns V. State, 32 Ark. 205; Gise V Com., 81 Pa. St. 428. Where an indictment found De- cember 13, 1880, charged an of- fense on December 13, 1878, this As to the operation of the stat- ^^g jjgj^ ^^^ ^j, ^g barred by a ute on continuous offenses, see ^^^ yga^g. limitation.— Savage v. United States v. Irvine, 98 U. S. gt^te, 18 Fla. 909; State v. Beas- 450, 25 L. Ed. 193. jgy^ 21 W. Va. 777. B See Brewer v. State, 59 Ala. i United States v. Slacum, 1 Cr. 101; Scoggins v. State, 32 Ark. C. C. 485, Fed. Cas. No. 16311. 205; State v. Sloan, 55 Iowa 217, Sufficient in some jurisdictions. 7 N. W. 516. See, post, § 374. 422 CBIMINAIi PEOCEDUBE. § 374 will a former indictment on which a nolle prosequi was entered serve to take the case out of the statute.* "Information," in the federal statutes,^ means not "complaint" by a prosecutor, but the technical ex officio information filed by the government. Under such stat- utes, though the indictment must be found to prevent the bar of the statute, the defendant need not be sentenced within the limitation.* § 374. In some jukisdictions statute saved by wab- KANT OK PEESENTMENT. In England, on the other hand, and in jurisdictions where "indictment" or "informa- tion" is not required, the usual warrant issued by a mag- istrate on a preliminary complaint is enough to save the statute,^ and the same seems to be true in Alabama,- and South Carolina,^ and perhaps in other states. And that is clearly the case with a presentment by a grand jury, though the indictment was not found until after the statute expired;* and so it is held to be with a commit- ment or binding over by a magistrate.^ 2 United States v. Ballard, 3 be here out of place. In R. v. McL. C. C. 469, Fed. Cas. No. 14507. Willace, 1 East P. C. 186, it was See, infra, § 376. holden upon the repealed statutes 3 United States v. Slacum, 1 Cr. relating to coin, that the infor- C. C. 485, Fed. Cas. No. 16311. mation and proceeding before the 4 Com. V. The Sheriff, 3 Brew, magistrate, upon the defendant's (Pa.) 394 (Brewster, J., 1869). being taken, was to be deemed the 1 R. V. Parker, 9 Cox C. C. 475, "commencement of the prosecu- Leigh & C. 459. tlon" within the meaning of those Contra: R. v. Hull, 2 F. & F. 16. acts. See, also, R. v. Brooks, 1 2 Foster v. State, 38 Ala. 425; Den. C. C. 217, 2 Car. & K. 402, Ross V. State, 55 Ala. 177. 61 Eng. C. L. 401. 3 S t a t e V. Howard, 15 Rich. But proof by parol that the pris- (S. C.) 274. oner was apprehended for treason 4 Brock V. State, 22 Ga. 98 ; and respecting the coin, within three see R. V. Brooks, 1 Den. C. C. 217, months after the offense was com- 2 Car. & K. 402, 61 Eng. C. L. 401, mitted, was holden not to be suffi- 2 Cox C. C. 436. cient, where the indictment was 5 R. V. Austin, 1 Car. & K. 621, after the three months, and the 47 Eng. C. L. 619. warrant to apprehend or to com- One or two analogous cases mit was not produced. — ^R. v. Phil- under the English statute may not lips, R. & R. 369. §375 FLIGHT SUSPENDS STATUTE. 423 § 375. Whek plight suspends statute, it is not ee- NEWED BY tempoeabt eeturn. Whether the exceptions to the statute must be specially averred in indictment, has been just noticed. It is not necessary to constitute the exception of a per- son "fleeing from justice," that the defendant should have been unintermittingly absent from the jurisdiction. If he flees from a prosecution, mere occasional returns will not start the statute afresh.^ The same rule applies to concealment of guilt.^ But to soldiers enlisting in the army and then remov- In R. V. Killminster, 7 Car. & P. 228, 32 Eng. C. L. 585, an indict- ment for night poaching was pre- ferred against the defendant within twelve months after the commission of the offense, and was ignored; four years afterward an- other hill was found against him for the same offense, and upon an objection that the proceeding was out of time, Coleridge, J., doubted whether the first indictment was not a proceeding sufficient to en- title prosecutor to proceed. He reserved the point, but the defen- dant was acquitted upon the merits. See, also, Tilladam v. In- habitants of Bristol, 4 Nev. & M. 144. In a remarkable case in Georgia, it was held that on an indictment for a major offense, to which the statute does not apply, but which includes a minor offense, covered and shielded by the statute, where the jury convicted of the minor offense, the statute may be applied to the major offense. — Clark v. State, 12 Ga. 350. 1 United States v. White, 5 Or. C. C. 116, Fed. Cas. No. 16677. See State v. Barton, 32 La. Ann. 278; State V. Vines, 34 La. Ann. 1073. A fleeing from justice does not necessarily import a fleeing from prosecution begun. — United States V. Smith, 4 Day (Conn.) 123, Fed. Cas. No. 16332. A person may flee from justice though no process was issued against him. — United States v. White, 5 Cr. C. C. 39, Fed. Cas. No. 16675. TPie defendant is not entitled to tlie benefit of tiie limitation, if within the two years he left any place, or concealed himself, to avoid detection or punishment for any offense. — United States v. White, 5 Cr. C. C. 73, Fed. Cas. No. 16676. Although he should within the two years have returned openly to the place where the offense was committed, so that, with ordinary diligence and due means, he might have been arrested. — United States V. White, 5 Cr. C. C. 116, Fed. Caa. No. 16677. 2 See Watkins v. State, 68 Ga. 832; Robinson v. State, 57 Ind. 113; State v. Hoke, 84 Ind. 137. 424 CEIMINAL PEOCEDUEE. §§ 376, 377 ing, this exception does not apply f and the same reason would be good as to all removals under direction of the State.* § 376. Failure of defective indictment does not ee- vivE statute; The failure of a defective indictment, and the presentation of a new and correct indictment after the statute has begun to run, does not revive the stat- ute.^ The statute, as to the particillar offense, was put aside by the commencement of legal proceedings against the defendant, and remains inoperative until these legal proceedings terminate. And this termination can not be until a final judgment is reached on the merits.^ It is possible, however, to conceive of a statute so couched as to make a judgment on mere technical grounds a termina- tion of the prosecution, so that a new indictment would be regarded as a new prosecution. And it has been held that when an indictment is quashed, the time of its pen- dency is to be taken out of the statute.* § 377. Coukts look with disfavor at long delay in prosecution. In cases of secret offense, where the prose- cutor is the sole or principal witness, and where, after a short lapse of time, the defendant, unless previously notified, must in the nature of things have great diffi- culty, from the evanescent character of memory, in col- 3 Graham v. Com., 51 Pa. St. Jones) 221; State v. Hailey, 51 255, 88 Am. Dec. 581. N. C. (6 Jones) 42; Com. v. Sheriff. 4 See United States v. Brown, 3 Brewst. (Pa.) 394. 2 Lowell 267, Fed. Gas. No. 14665. A prosecution continues wlien Sentence to imprisonment in an- an indictment is dismissed, and other county soon after commis- the matter immediately submitted sion of crime does not prevent to a grand jury, and a new indict- runnlng of statute. — Com. v. Wood- ment found, without releasing the ward, 1 Chester Co. Rep. 102. defendant. — Tully v. Com., 76 Ky. 1 See Bube v. State, 76 Ala. 73; (13 Bush) 142. See United States Gill V. State, 38 Ark. 524; State v. v. Ballard, 3 McL. C. C. 469, Fed. Baker, 30 La. Ann. 1134; State v. Cas. No. 14507; supra, §373. Curtis, 30 La. Ann. 1166. 3 See Coleman v. State, 71 Ala. 2 Foster v. State, 38 Ala. 425; 312; State v. Morrison, 31 La. Ann. State V. Johnston, 50 N. C. (5 311; State v. Owen, 78 Mo. 367. §§ 378, 379 FRAUD SUSPENDS STATUTE. 425 lecting evidence aliunde as to alibi, the policy of the law is to compel a speedy prosecution. Eminently is this the case with sexual prosecutions, especially those which are capable of being used for the extortion of money. Hence courts, as will hereafter be seen, look with dis- favor on prosecutions for rape in which the prosecutrix does not make immediate complaint. And there are ca ses when the delay is marked and unexcused, when an ac- quittal will be directed. This course was taken by a learned English judge (Alderson) in a case of bestial- ity, where nearly two years (not quite the statutory limi- tation) was allowed by the prosecutor to pass before in- stitution of proceedings.' § 378. Statute not suspended by fraud. The enumera- tion of specific exceptions is exhaustive, and the statute can not be suspended in favor of the prosecution by any allegations of fraud on the part of the defendant. Thus, where it appears that an alleged misdemeanor was com- mitted more than two years before the warrant was is- sued, and that the defendant was all the time a resident of the State, the prosecution can not save the i5ar of the statute by shoAving that the defendant put the prose- cutor on a wrong scent, and concealed the crime until a few weeks before the arrest.^ § 379. Undeb statute, indictments unduly delayed MAY be discharged. In the federal courts and in the courts of several of the States restrictions exist requiring trials in criminal cases to take place within a specified period after the institution of the prosecution.' The power of 1 R. V. Robins, 1 Cox C. C. 114. States v. White, 5 Cr. C. C. 39, 1 Com. V. The Sheriff, 3 Brewst. Fed. Cas. No. 16675. (Pa.) 394. 1 As to Georgia, see Roebuck v. The statute runs in favor of an State, 57 Ga. 154. offender, although it was not See Esselborn, In re, 20 Blatchf. known to the officers of the United 1, 8 Fed. 904, where it was held States that he was the person who that a defendant would be dis- committed the offense. — United charged if the grand jury he was 426 CRIMINAL PROCEDURE. §379 discharging a prisoner under the Pennsylvania statute,* providing for a discharge if there has been no trial for the first two terms is limited, it is held, to the court in which he was indicted; and the Supreme Court will not interfere if the commitment is unexceptionable on the face of it.* A prisoner who stands indicted for aiding and abetting another to commit murder, and who was not tried at the second term, is not entitled to be discharged xmder the third section of the act if the principal has ab- sconded, and proceedings to outlawry against him were commenced without delay, but sufficient time had not elapsed to complete them.* A prisoner, also, is not en- titled to demand a trial at the second term if he has a contagious or infectious disease, which may be communi- cated in the court to the prejudice of those present.® Nor bound over to was discharged without acting on his c a s e. — Adams v. State, 65 Ga. 516. As to rule in California, see Bx parte Fennessy, 54 Cal. 101. In Nebraska the defendant may be discharged at the end of the first term unless the prosecution show reasons why it has not pro- ceeded. — Ex parte Two Calf, 11 Neb. 221, 225, 9 N. W. 44. When failure to call case not ground for discharge. — That a mere failure to call up a case with- out good reason will not be ground for a discharge when defendant is out on bail, see United States v. Thome, 15 Fed. 739. 2 See, infra, chapter on "Motion for Continuance and Change of Venue," et seq., where this sub- ject is discussed In connection with the right to a continuance. 3 Ex parte Walton, 2 Whart. (Pa.) 501. Intermediate finding of second Indictment for the same offense does not deprive the defendant of his rights. — Brooks v. People, 88 111. 327. i Com. V. Sheriff etc. of Alle- gheny, 16 Serg. & R. (Pa.) 304, Gibson, C. J., dissenting. 5Bx parte Phillips, 7 Watts. (Pa.) 363. In Virginia it was required, "when any prisoner committed for treason or felony shall apply to the court the first day of the term, by petition or motion, and shall desire to be brought to his trial before the end of the term, and shall not be indicted in that term, unless it appear by affidavit that the witnesses against him can not be produced in time, the court shall set him at liberty, upon his giving bail, in such penalty as they shall think reasonable, to appear before them at a day to be ap- pointed of the succeeding term. Every person charged with such crime, who shall be indicted be- fore or at the second term after 5 380 NO EXTRA-TERRITOEIAIi FORCE OF STATUTES. 427 does the statute cover the case of a person who has been tried and convicted, but has obtained a new trial." The defendant, also, to avail himself of the statute'' must have been diligent in pressing for trial.* Whether such a dis- charge is a bar to further prosecution is hereafter dis- cussed.* § 380. Statutes have no extba-teeeitoeial effect. Statutes of limitation, unless the words of the law ex- pressly direct the contrary, are acts of grace, binding only the sovereign enacting them, and have no extra- territorial force.^ If, to apply this principle to the pres- ent question, a foreigner commits an offense in England he shaU have been committed, un- less the attendance of the wit- nesses against him appear to have been prevented by himself, shall be discharged from imprisonment, if he be detained for that cause only, and if he be not tried at or before the third term after his examination before the justices, he shall be forever discharged of the crime, unless such failure proceed from any continuance granted on the motion of the prisoner, or from the inability of the jury to agree on their verdict." — ^R. C. of Va., ch. 169, § 28. The excuses above enumerated are not exclusive. Whenever the commonwealth has just ground for delay, discharge will be refused. — Adcock's Case, 8 Gratt. (Va.) 662. — When the accused has been tried and convicted, and a new trial awarded to him, although he should not be again tried till after the third term from his examina- tion, he is not entitled to a dis- charge. — 2 Va. Cas. 162; Davis's Va. Cr. Law 422. And see Foster V. State, 38 Ala. 425; In re Scraf- ford, 21 Kan. 735. It has been decided that the word "term," where it occurs in this act, means, not the prescribed time when the court should be held, but the actual session of the court — 2 Va. Cases 363. An analogous statute exists In Ohio, Rev. Stat. 7309.— But this statute does not entitle the pris- oner to a discharge when good ground for continuance Is shown by the state, or when the adjourn- ment is necessitated by the court not having time to try the case.- — Johnson v. State, 42 Ohio St. 207. 6 Com. v. Sup. of Prisons, 97 Pa. St 210. 7 Gallagher v. People, 88 111. 335; Edwards, Ex parte, 35 Kan. 99, 10 Pac. 539. Statute does not apply to fugi- tives from justice. — Com. v. Hale, 13 Phila. (Pa.) 452. 8 Patterson v. State, 49 N. J. L. 326, 8 Atl. 305. 9 Infra, chapter on "Pleas," divi- sion VI, 7. 1 Whart. Confl. of L., §g 534-544, 939. 428 CRIMINAL PEOCBDUEE. § 3S() or the United States, it could never be pretended that he could plead that in his own country the period for prose- cution had expired. And so where jurisdiction is based on allegiance, as in case of political offenses against the United States committed abroad, the defendant, when put on trial in the country of his allegiance, would not be permitted to set up the limitations of the forum delicti commissi. In either case the law as to limitation is that of the court of jorocess. And in this view most for- eign jurists coincide.^ Foelix, however, seems to think, that in case of a difference in this respect in the codes of States having concurent jurisdiction, the milder legis- lation is to be preferred.^ 2Berner, Wirkungskreis der Deutsc. Straf., p. 24; Bar, §143, Strafgesetze, p. 164; Kostlin, Syst. p. 568. 3 n. No. 602. CHAPTER XVII. INDICTMENT SPECIFIC CEIMES. Introductory. § 381. In geneeal. It is the purpose to collect in this chapter, under the various specific crimes and of- fenses, the principal cases giving the general rules gov- erning the drawing and sufficiency of indictments and informations charging the respective crimes and offenses. As many of these crimes and offenses are purely statu- tory, the pleader must in all cases consult the statute of the particular jurisdiction denouncing the given crime or offense, and conform to its requirements. For exam- ple, the statutes in the various States denouncing and punishing abduction of a female, under a designated age, for purposes of prostitution, and the like, are as variant as the several States, almost. Some of these statutes specifically require that the female shall have been of previous chaste character,^ or shall have been lawfully in the custody and control of the person or persons from whom taken,^ and the like. The averments in an indict- ment or information charging such an offense must meet each of these varying requirements and conditions by al- leging previous chaste character, lawful custody and control, and the like. What is true of abduction is also true of other specific crimes and offenses. No general rules, applicable alike in all jurisdictions, can be given, because of the varying requirements under the different statutes ; but it is thought, and trusted, that what is herein collected will prove both conveiiient and helpful, but should always be consulted in connection 1 See, infra, § 384, footnote 6. 2 See, Infra, § 382, footnote 9. (429) 430 CRIMINAL PEOCEDUEE. § 381 with tlie wording and provisions of the statute under which the pleader is acting, and the difference in this respect, if any, from the statute under which the decision given was made. CHAPTER XVIII. INDICTMENT — SPECIFIC OEIMES. Abduction. §382. In general. § 383. For purpose of compelling marriage. § 384. For purpose of prostitution. § 385. For illicit sexual intercourse. § 386. Enticement to house of ill-fame. § 387. Joinder of counts and duplicity. § 382. In GENERAii. The crime of abduction of a female for purpose of concubinage, prostitution, having sexual intercourse with her, compelling marriage, and the like, is a purely statutory offense, and the indictment or infor- mation must be drawn to meet the requirements of the particular statute by alleging that the abduction was for the purposes therein denounced and in the manner therein prohibited.^ The indictment or information may follow the language of the statute^ without setting out the man- ner of detention,® but must aver that the abduction or detention was against the victim 's will.* Where the stat- ute enumerates two or more things, of the same general nature but not of the same class, in the disjunctive, an allegation of them in the conjunctive will render the in- dictment or information vulnerable to the objection that it charges two offenses." 1 Vander Linden v. Oster, 37 — Vander Linden v. Oster, 37* S. D. 112, 156 N. W. 911. S. D. 112, 156 N. W. 911. As to forms of indictment for ' ^^ ^y. Gen. St. 1883, ch. 29, art. Iv, § 9. 3 CarglU V. Com., (Ky.) 13 S. W. abduction in Its various phases, see Forms Nos. 161-238. 916. Information heid insufficient to 4 See authorities footnote 7, this charge the crime of abduction section. under S. D. Fen. Code, S§ 333-335. b "Prostitution or concubinage" (431) 432 CRIMINAL PROCEDUEE. § 382 Unlawfully, maliciously, etc. An indictment or infor- mation for abduction in any of its phases, as provided by the specific act, where the act denounced and pro- hibited, when unlawfully done constitutes the offense denounced, need not allege that the accused acted ma- liciously, wilfully, or feloniously.* But where the statute provides that the taking away of a woman unlawfully and against her will for specified purposes shall con- stitute the offense, then the indictment or information must allege that the taking away was unlawful and against the woman 's will.'^ Enticing from parents or guardian of an unmarried female under a designated age being charged, it need not be averred that accused knew the female was under the statutory age,* or that the parents or guardians had the legal custody," in the absence of a statutory provision making legal custody an element ; but it must be alleged that the taking was against the will and without the con- sent of such parents or guardian.^** Inartistically drawn indictment or information is suffi- cient as against an objection that it is unintelligible in those cases where it contains all the averments required by the statute.^^ in the statute, Indictment or in- 8 People v. Fowler, 88 Cal. 136, formation charging "prostitution 25 Pac. 1110. and concubinage." See, Infra, § 387, « People v. Fowler, 88 Cal. 136, footnote 2 ^^ -P^"- HIO; State v. Sager, 99 Minn. 54, 108 N. W. 812. 10 Against will and consent of the parents. — Where the indict- 7 State V. Hromadko, 123 Iowa ment charged that the accused en- 665, 99 N. W. 560; Wilder V. Com., ticed "the said female to leave 81 Ky. 591; Krambiel v. Com., the house of her parents" without 2 S. W. 555; Hoskins v. Com., averring the names of the parents 7 Ky. Law Rep. 41. or that the enticement was against Forcible detention being charged their will and consent, it was held in the indictment does not const!- bad, in Jones v. State, 84 Tenn. tute ail allegation that the deten- (16 Lea) 466. tion was against the woman's will. ii State v. Johnson, 115 Mo. 480, —Wilder v. Com., 81 Ky. 591. 9 Am. Cr. Rep. 7, 22 S. W. 463. 6 Higgins V. Com., 94 Ky. 54, 9 Am. Cr. Rep. 20, 21 S. W. 231. § 383 ABDUCTION. 433 Surplusage does not vitiate an indictment otherwise good;^^ as, an indictment charging the abduction of a female tinder the statutory age from her parents for the purpose of concubinage which adds the unnecessary alle- gation "for the purpose of having sexual intercourse with him the said" defendant.^* § 383. FoK pxTEPosE OF COMPELLING MAREiAGE.^ In an in- dictment or information charging the abduction or detain- ing^ of a woman to induce or compel her marriage to the accused or to another, there must be an averment that the act was unlawful and against the woman's will; but neither the means by which the abduction was effected, nor from what place the woman was taken, nor the man- ner in which detained is required to be set out, such indictments being good where they merely follow the words of the statute.* Taking from parents or guardian of girl under statu- tory age for purpose of, or of compelling, marriage to self or to another, being charged, neither the means by which the abduction was effected, from what place, nor from whose custody the girl was taken need be alleged,* neither need it be alleged to whom she was to be married, that the intention of accused was that she should be mar- ried before the statutory age, or that parents or guardian had the legal charge of her person.^ 12 See, supra, § 200. 2 As to forms for detaining a 13 State V. Overstreet, 43 Kan. woman to compel her marriage to 299, 23 Pac. 572; People v. Par- the accused or another, see Forms shall, 6 Park. Cr. Rep. (N. Y.) 129. j^^g 182-186. Additionai allegation of an in- .t, . ,„ ^ ™ tent to do other and different acts ' "^^'^'^^ ^- ^°'^- ^"^^'^ ^^ S. W. not set out in the statute, does not vitiate the indictment.— People * State v. Keith, 47 Minn. 559. V. Parshall, 6 Park. Cr. Rep. 50 N. W. 691. (N. Y.) 129. 5 State v. Sager, 99 Minn. 54, 108 1 As to forms charging this of- N. W. 812 (under Minn. Gen. Stats., fense, see Forms Nos. 161-166. 1894, § 6529). I. dim. Proc— 28 434 CRIMINAL PKOCEDUEE. § 384 § 384. Fob purpose op pbostitution. An indictment or information charging abduction for purpose of prostitu- tion should follow closely the language of statute under which drawn, although the use of words of equivalent import with those employed in the statute will suffice, if the instrument is otherwise sufficient;^ but where the statutory words are "for purposes of ptostitution,"^ an allegation of abduction "for the purpose of having illicit sexual intercourse with her" charges no offense,® and the indictment or information must be quashed on motion therefor;* neither is an averment which alleges the act was done "for the purpose of unlawfully and feloniously prostituting her, and for the purpose of having carnal intercourse with her," sufficient within such a statute.® Previous chaste character is not an element in the offense, in the absence of specific statutory provision, and need not be alleged or proven, for in such a case the chastity or unchastity of the female is wholly immate- rial;* but where the provision of the statute relates to 1 Equivalent allegation. — An al- ated by the addition of the words legation that the female was en- "for the purpose of having sexual ticed away "with the felonious intercourse with the" accused, intent of rendering" the female enticed "a prostitute" is equiva- lent to alleging that it was done 4 Osborn v. State, 52 Ind. 526, 1 Am. Cr. Rep. 25. "for the purpose of prostitution." 5 Miller v. State, 121 Ind. 294, —Nichols V. State, 127 Ind. 406, 23 N. E. 94. 26 N. B. 839. 6 Cargill v. Com., 93 Ky. 578, 20 2 As in the Indiana statute.— 2 S. W. 782; Com. v. Wilson, 17 Ky. Gavin & H. Ind. Stats., p. 441, § 16. L. Rep. 578, 32 S. W. 166; State 3 Osborn v. State, 52 Ind. 526, v. Strattman, 100 Mo. 540, 13 S. W. 1 Am. Cr. Rep. 25; Com. v. Cook, 814; State v. Rogers, 108 Mo. 202, 53 Mass. (12 Met.) 93; Carpenter 18 S. W. 976 (female under statu- V. People, 8 Barb. (N. Y.) . 603. tory age) ; State v. Bobbst, 131 Compare: State v. Overstreet, 43 Mo. 328, 32 S. W. 1149; State v. Kan. 299, 23 Pac. 572, holding that Sibley, 131 Mo. 519, 33 S. W. 167; an indictment or information oth- Brown v. State, 72 Md. 477, 20 Atl. erwise good, charging the abduc- 140 (girl under statutory age en- tion of a girl under the statutory tlced from home) ; State v. Hairs- age from her parents for the pur- ton, 121 N. C. 582, 28 S. E. 492 pose of concubinage, is not vlti- (girl under statutory age). §385 ABDUCTION. 435 females of previous chaste character, the indictment or information must aver and the proof show that the female was of previous chaste character.'^ Under some statutes,* however, it is held that such an averment is not neces- sary,^ the fact of previous unchastity being a matter of defense.^" <^ 385. Fob illicit sexual intercourse. Indictment or information charging accused "unlawfully and feloni- ously detained" a named female "against her will with intent to have carnal intercourse with, her" has been held sufficient.^ It is not necessary to allege whether the accused succeeded in his purpose.^ Under the Mis- souri statute^ actual concubinage need not be alleged,* 7 See People v. Roderigas, 49 Cal. 9; Com. v. Whltaker, 131 Mass. 225; Carpenter v. People, 8 Barb. (N. Y.) 603. "Previous chaste character," in sucli a statute, means actual chaste and pure conduct, as con- tradistinguished from good reputa- tion for chastity. — Lyons y. State, 52 Ind. 426 (abduction case) ; SUte V. Gates, 27 Minn. 52, 6 N. W. 404 (abduction case) ; Car- penter V. People, 8 Barb. (N. Y.) 603 (abduction case). An Individual personally chaste, not merely of good reputation for chastity. — KaufCman v. People, 11 Hun (N. Y.) 82 (abduction case). Means one who never had sex- ual intercourse. — Powell v. State, (Miss.) 20 So. 4 (in seduction case) . Previous unchastity. — Woman who has been previously in the habit of illicit intercourse, but re- formed and been thereafter chaste from principle, is within the defini- tion. — See State v. Timmens, 4 Minn. 325 (seduction case). Prior acts of illicit intercourse may be shown. — Lyons v. State, 52 Ind. 426. 8 As in Tennessee under Shan- non's Code, § 6462. 9 Griffin V. State, 109 Tenn. 17, 70 S. W. 61. 10 Jenkins v. State, 83 Tenn. (15 Lea) 674; Scruggs v. State, 90 Tenn. 81, 15 S. W. 1074; Griffin v. State, 109 Tenn. 17, 70 S. W. 61. 1 Porter v. Com., 7 Ky. Law Rep. 364. 2 Smith v. Com., (Ky.) 127 S. W. 790. See State v. Richards, 88 Wash. 160, 152 Pac. 720. That is not an element of the offense. See State v. Knost, 207 Mo. 18, 105 S. W. 616. 3 Rev. Stats., 1899, §1842; Ann. Stats., 1906, § 1273. As to sufficient indictment under this statute, see State y. Beverly, 201 Mo. 550, 100 S. W. 463; State V. Baldwin, 214 Mo. 290, 113 S. W. 1123. 4 State v. Knost, 207 Mo. 18, 105 S. W. 616. 436 CRIMINAL PEOCEDUEE. § 386 neither is it necessary to allege any matter not an element of tlie offense.^ An allegation that accused took female away without the consent of her parents or guardian is not necessary.* Attempt to commit the offense may be properly alleged to have been by means of "persuasion, entreaty, advice, flattery, promises, and other means to the prosecuting attorney unknown, ' ''' or, in case of an indictment, ' ' to the grand jury unknown. ' ' § 386. Enticement to house of ill-fame. Where the statute^ makes it a crime to take or entice a female to a house of ill-fame, or elsewhere, for the purpose of prosti- tution, an indictment or information charging the offense must aver that the place to which the female was taken was a house of ill-fame, or a place of like character within the prohibition of the statute,^ and the particular house or place must be alleged;^ but it is sufficient to name one house of ill-fame or other prohibited place to which the female was taken.* Previous chaste character of the female, under the Cal- ifornia statute^ and all with like provisions, must be al- leged in the indictment or information, and proven on the trial.* 5 That not an element of the 2 Miller v. State, 121 Ind. 294, offense.— State v. Knost, 207 Mo. 23 N. B. 94; State v. DeMarco, 81 18, 105 S. W. 616. N. J. L. 43, 79 Atl. 418. 6 State V. Kebler, 228 Mo. 367, 3 Nichols v. State, 127 Ind. 406, 128 S. W. 721. 26 N. E. 839. 7 State V. Richards, 88 Wash. 160, 152 Pac. 720. 1 S u c h as Ind. Rev. Stats., § 1993; La. Act of 1890, No. 134, 5 Kerr's Cyc. Pen. Code, § 266. p. 175; N. J. Act March 14, 1910, 6 People v. Roderigas, 49 Cal. 9, § 1, Pamp. Laws, p. 24. approved in Com. v. Whltaker, 131 As to sufficiency of indictment Mass. 225 (an enticement case), under the Louisiana Act, see State and Harvey v. Territory, 11 Okla. V. Sanders, 136 La. 1059, 68 So. 159, 65 Pac. 838, applying the rule 125. in a prosecution for seduction. 4 State V. Savant, 115 La. 226, 38 So. 974. § 387 ABDUCTION. 437 § 387. Joinder of coxjnts and duplicity. A coTint for the abduction of a daughter under the statutory age against the will of her parents, may be joined with a count for abducting the daughter and marrying her.^ It has been said that where the statute denounces the abduc- tion of a female for purpose of "prostitution or concu- binage," all averment charging the abduction in the conjunctive as for purpose of "prostitution and concubin- age" renders the indictment open to the objection of duplicity in that it charges two distinct offenses in one count ;^ but it is held that under the New York statute^ the use of the copulative form of allegation charging as taken "for the purpose of prostitution and sexual inter- course," is not subject to demurrer.* 1 state V. Tidwell, 5 Strob. 3 Pen. Code, § 282. (S. C.) 1. 4 People V. Powell, 4 N. Y. Cr. 2 State V. Goodwin, 33 Kan. 538, Rep. 585. 5 Am, Cp. Rep. 1, 6 Pac. 899. CHAPTER XIX. INDICTMENT SPECIFIC OBIMBS. Abortion. § 388. In general. § 389. Charging grade of crime. § 390. Averments not required. § 391. Name and manner of use of instrument. § 392. Pregnancy and quickening of woman. ■■■' §393. Malice. § 394. Negativing death. i § 395. Negativing statutory exceptions. § 396. Publishing information where abortion may be procured. § 397. Joinder of counts — Election. §398. Duplicity. § 388. In geneeal.* An indictment charging the offense of procuring, or attempting to procure, an abortion, should follow the language or phraseology of the statute ; but it is not fatal to depart therefrom, if the language or phrases used convey substantially the same meaning.^ Thus, it has been held that the phrase "the procuring of a miscarriage" has practically the same meaning as "the procuring of an abortion";^ that "woman with child" is equivalent to "pregnant woman" in the statute,* and the like. And it has been said that an indictment or informa- tion is not defective because it charges an attempt to procure the miscarriage and abortion of the mother 1 As to forms charging abortion. People v. Quinn, 44 N. Y. St. Rep. see Forms Nos. 239-264. 920, 18 N. Y. Supp. 569. 2 Under general rule that an in- 3 State v. Crook, 16 Utah 212, dictment which charges an offense 51 Pac. 1091 (under Utah Comp. substantially In the language of Stats., 1888, §5046). the statute creating It. — Bckhardt 4 Eckhardt v. People, 83 N. Y. V. People, 83 N. Y. 462, 38 Am. 462, 38 Am. Rep. 462, affirming 22 Rep. 462, affirming 22 Hun 525; Hun 525. . (438) § 389 ABORTION. 439 rather than that of the child, where the intent to cause the premature birth and destruction of the child is also charged.® Alternative use of different means alleged in an indict- ment for abortion does not render it bad.® § 389. Charging gbade of ceime. The act of produc- ing, or attempting to produce, an abortion, where it does not result in death,^ may be a misdemeanor or a felony, according to the provision of the statute ; and the statute may provide degrees of the offense upon which different penalties are inflicted. Care should be taken in the draw- ing of the indictment so as to charge the highest grade or degree of the offense of which accused can be convicted under the facts in the case. Where by statute abortion is a misdemeanor, an indictment for the misdemeanor will be good for that offense, although it contains some averments but not all the facts which would show that the criminal act alleged was a felony.* For example, the offense of administering a drug to a pregnant woman to produce a miscarriage, and the administering of the drug to Mil the child, are two separate and distinct of- fenses; an indictment which alleges that the medicine was administered to produce a miscarriage is sufficient for the misdemeanor offense, although insufficient to charge the crime of manslaughter in killing the child.* B Mills V. Com., 13 Pa. St. 631. ploy means to procure miscarriage 6 See, ante, § 206; State v. of a pregnant woman, the statute Owens, 22 Minn. 238; State v. prescribing a penalty for the of- Gaul, 88 Wash. 295, 152 Pac. 1029. fense denounced, this fact will not In State v. Drake, 30 N. J. L. take the criminal act out of the (1 Vr.) 422, however, it was held provisions of the statute making that an Indictment charging that it manslaughter to kill another in the defendant administered a cer- the commission of an unlawful act, tain poison or drug or medicine, where death results from the abor- or noxious thing, was defective in tion. — State v. Power, 24 Wash, that it did not allege that he ad- 34, 63 L. R. A. 902, 63 Pac. 1112. ministered all of the prohibited 2 Lohman v. People, 1 N. Y. 379, things nor any one of them. 49 Am. Deo. 340. 1 Misdemeanor by statute to em- 3 Id. 440 CRIMINAL PEOCEDURB. §§ 390, 391 § 390. Averments not kequieed. Neither the name, quality, quantity or the effect^ of the drug administered need be named in an indictment for procuring an abor- tion; and whether the drug administered was liquid, solid, or gaseous need not be alleged.^ It is unnecessary to allege that the drug was noxious,^ and, consequently, there need be no averment that the accused knew the noxious character thereof.* •Name and manner of use of instrument. §391. - The rule governing as to the necessity of averring the 1 ALA. — Thomas v. State, 156 Ala. 166, 47 So. 257. AKK.— State V. Reed, 45 Ark. 333. COLO.— Dougherty v. People, 1 Colo. 514. DEL.— State v. Quinn, 2 Penn. 339, 45 Atl. 544. IND.— State v. Vaw- ter, 7 Blackf. 592; Carter t. State, 2 Ind. 617. IOWA— State v. Fitz- gerald, 49 Iowa 260, 31 Am. Rep. 148; State v. Moothart, 109 Iowa 130, 80 N. W. 301. MASS.— Com. Y. Morrison, 82 Mass. (.16 Gray) 224. MINN.— State v. Owens, 22 Minn. 238. MO. — State v. Vivn Houten, 37 Mo. 357. N. C— State V. Crews, 128 N. C. 581, 38 N. E. 293. N. D.— State v. Longstreth, 19 N. D. 268, 121 N. W. 1114, Ann. Cas. 1912D, 1317. PA.— Com. v. W , 3 Plttsb. 462. TEX.— Wat- son V. State, 9 Tex. App. 237; Cave V. State, 33 Tex. Cr. Rep. 335, 26 S. W. 503; Reum v. State, 49 Tex. Cr. Rep. 125, 90 S. W. 1109. WASH.— State v. Gaul, 88 Wash. 295, 152 Pac. 1029. ENG.— R. v. Phillips, 3 Camp. 73. If the name of the drug is set out in the indictment the proof need not correspond thereto. — Dougherty v. People, 1 Colo. 514; Carter v. State, 2 Ind. 617; Rex v. Phillips, 3 Camp. 73. See Cave v. State, 33 Tex. Cr. Rep. 335, 26 S. W. 503, where the court expressed doubt as to the sufficiency of the indictment be- cause it did not name the means or state that they were unknown, but held it bUificient, following Watson V. State, 9 Tex. App. 237. 2 State V. Moothart, 109 Iowa 130, 80 N. W. 301. 3 State V. Vawter, 7 Blackf. (Ind.) 592; Com. v. Morrison, 82 Mass. (16 Gray) 224; State v. Mandeville, 88 N. J. L. 418, 96 Atl. 398. Un-noxious character of drug used constitutes no defense, for, as has been well said, "a party who, with the necessary criminal intent uses any substance to pro- duce a miscarriage, surely can not he held innocent because he mis- takenly administered a drug or substance which did not produce the result intended. It is the in- tent and not the 'substance' used that determines the criminality." — State V. Fitzgerald, 49 Iowa 260, 31 Am. Rep. 148; State v. Watson, 30 Kan. 281, 1 Pac. 770; State v. Crews, 128 N. C. 581, 38 S. E. 293. 4 State V. Slagle, 83 N. C. 630. §391 ABORTION. 441 name or nature of the drug administered,^ applies with equal force to the instrument used, where the offense is conunitted, or attempted, by the use of an instrument. The general rule is that the name of the instrument need not be averred f but there are cases to the effect that the character of the instrument used should be averred when- ever it is possible to do so,* or that the name thereof is unknown to the grand jurors.* 1 See, supra, § 383. 2 ARK.— State v. Reed, 45 Ark. 333. CAL. — ^People v. Guaragna, 23 Cal. App. 120, 137 Pac. 279. MASS. — Com. V. Corkin, 136 Mass. 429, 4 Am. Cr. Rep. 15; Com. v. Thompson, 159 Mass. 56, 33 N. E. 1111; Com. V. Noble, 165 Mass. 13, 42 N. E. 328. N. Y.— People v. Loh- man, 2 Barb. 216, 220. 3 Description as "a certain in- strument or Instruments suitable for the purpose of producing abor- tion" was held sufficient in Smartt V. State, 112 Tenn. 539, 80 S. W. 586. Description as "a certain metal- lic instrument calculated to pro- duce an abortion" was held sufficient in Reum v. State, 49 Tex. Cr. Rep. 125, 90 S. W. 1109. Allegation "did unlawfully use a certain instrument" is an insuffi- cient description where there was no averment that the nature of the instrument was unknown. — Com. V. Sinclair, 195 Mass. 100, 11 Ann. Cas. 217, 80 N. E. 799. In the above case the court say: "The gist of the offense charged is the use of the instrument with the specific intent stated; but the description of the instrument and the mode of its use are material to describe and identify the charge." In Massachusetts the old prece- dents of Indictments contained averments of the nature, kind and description of the instrument which the defendant was charged with having used. — Com. v. Brown, 80 Mass. (14 Gray) 419; Com. v. Jackson, 81 Mass. (15 Gray) 187; Com. V. Snow, 116 Mass. 47; Com. V. Boynton, 116 Mass. 343; Com. v. Brown, 121 Mass. 96; Com. v. Cor- kin, 136 Mass. 429, 4 Am. Cr. Rep. 15; Com. v. Follansbee, 155 Mass. 274, 29 N. E. 471; Com. v. Coy, 157 Mass. 200, 214, 216, 32 N. E. 4; Com. V. Tibbetts, 157 Mass. 519, 32 N. E. 910; Com. v. Thompson, 159 Mass. 56, 33 N. E. 1111; Com. v. Sinclair, 195 Mass. 100, 11 Ann. Cas. 217, 80 N. E. 799. 4 CAL. — People v. Guaragna, 23 Cal. App. 120, 137 Pac. 279. DEL.— State V. Quinn, 2 Penn. 339, 45 Atl. 544. ILL. — Baker v. People, 105 111. 452. MASS.— Com. v. Jackson, 81 Mass. (15 Gray) 187; Com. v. Snow, 116 Mass. 47; Com. v. Cor- kin, 136 Mass. 429, 4 Am. Cr. Rep. 15; Com. v. Thompson, 159 Mass. 56, 33 N. E. 328. N. H.— State v. Wood, 53 N. H. 488. N. D.— State V. Longstreth, 19 N. D. 268, 121 N. W. 1114, Ann. Cas. 1912D, 1317. In People v. Guaragna, 23 Cal. App. 120, 137 Pac. 279, the court says that the information would have been good if it had alleged 442 CRIMINAL PEOCEDUEE. §392 Manner of use of instrument, however, is different, and this must be set out, where known ;^ but indictment may allege that the manner of use is to the grand jury- unknown,® in which case there need be no averment re- garding the manner in which the instrument was used.'' Remedy for failure to aver name or nature of instru- ment, or its manner of use, and also to state that the same is unknown to the grand jury, is to ask for a bill of partic- ulars, to which defendant is entitled as a matter of right;' a motion to quash the indictment for such failure to aver is properly overruled.* § 392. Peegnancy and quickening of woman. It is unnecessary under statute^ to aver that the accused knew or suspected the woman was pregnant,^ or that that the character of the Instru- ment was unknown, and obviously such an allegation would not ren- der it more certain or efficacious than no averment at all. 5 Cochran v. People, 175 111. 28, 51 N. E. 845; State v. Bly, 99 Minn. 74, 108 N. W. 833; Smartt v. State, 112 Tenn. 539, 80 S. W. 586. Sufficient allegation as to use: An allegation that the instruments wei-e used "in and about and with- in the body" of the woman, suffi- ciently indicates the manner of committing the offense. — People v. Guaragna, 23 Cal. App. 120, 137 Pac. 279. An allegation charging the un- lawful use by "forcing, thrusting, and inserting said instrument into the private parts" of the named woman is sufficient. — Baker v. Peo- ple, 105 111. 452. An indictment is sufficient where It alleges that accused forced and thrust the instrument up Into the womb and body of a pregnant wo- man. — Rhodes v. State, 128 Ind. 189, 25 Am. St. Rep. 429, 27 N. E. 186; Com. v. Wood, 68 Mass. (2 Gray) 85; Com. v. Jackson, 81 Mass. (15 Gray) 187; Com. v. Snow, 116 Mass. 47. But in People v. Wah Hing, 15 Cal. App. 195, 114 Pac. 416, it was held that it was unnecessary to allege how the instruments were used, as it would be presumed that they were used upon her body. e State v. Longstreth, 19 N. D. 268, 121 N. W. 1114, Ann. Cas. 1912D, 1317. 7 Thomas v. State, 156 Ala. 166, 47 So. 257; State v. Brown, 26 Del. 499, 85 Atl. 797. 8 Com. V. Sinclair, 195 Mass. 100, 11 Ann. Cas. 217, 80 N. E. 799. 9 Com. V. Sinclair, 195 Mass. 100, 11 Ann. Cas. 217, 80 N. B. 799. 1 By statute in Massachusetts. See Pub. Stats., ch. 207, § 9. 2 Com. V. Tibbetts, 157 Mass. 519, 32 N. E. 910. Indictment against accomplice of the physician sufficient without averring the physician knew that §§ 393, 394 ABORTION. 443 she had quickened,' although it was otherwise at common law;* and consequently in a charge of the administration, before the period of quickening, of a drug with the intent to produce an abortion or miscarriage, the pleader need not aver the drug was so administered for the purpose of causing a delivery before the period of quickening.^ — MAiiicE. An indictment charging abortion §393. - is not defective because of a failure to aver that the act was maliciously done,^ and without lawful justification f neither is it necessary to allege that the offense was com- mitted feloniously.® § 394. NEGATDncNG DEATH. lu those cases where death did not result from the abortion, an indictment charging the offense in the words of the statute is suffi- cient without the negative averment that defendant did not cause the death either of the woman or of the child ;^ the woman was pregnant. — Fon- dren v. State, 74 Tex. Cr. Rep. 552, 169 ,S. W. 411. 3 State V. Smith, 32 Me. 370, 54 Am. Dec. 578; Com. v. Wood, 77 Mass. (11 Gray) 85; State v. Em- erich, 13 Mo. App. 492; Mills v. Com., 13 Pa. St. 631, 634. It is sufficient to allege that she was "big and pregnant." — Com. v. Domain, 6 Pa. Law J. 29, 3 Clark 487, Brightly N. P. 441. 4 See Com. v. Bangs, 9 Mass. 387. 5 Davis T. State, 96 Ark. 7, 130 S. W. 547. 1 Dougherty v. People, 1 Colo. 514; Johnson v. People, 33 Colo. 224, 108 Am. St. Rep. 85, 80 Pac. 133; Com. v. Sholes, 95 Mass. (13 Allen) 554. 2 Com. V. Sholes, 95 Mass. (13 Allen) 554. 3 Com. V. Jackson, 81 Mass. (15 Gray) 187. As to indictment for murder in producing, or attempting to pro- duce, an abortion, see Forms Nos. 241, 250-255, 1223, 1224. 1 State V. Gedicke, 43 N. J. L. (14 Vr.) 86, 4 Am. Or. Rep. 6. See Com. v. Wood, 77 Mass. (11 Gray) 85; Com. v. Thompson, 108 Mass. 461; State v. Dean, 85 Mo. App. 473. The general rule is that where, by the statute, there is a gradation of offenses of the same species, as in the degrees of punishment an- nexed to the offense, it is not required to set forth a negative allegation. It is no objection to the indictment that it charges the acts which constitute the minor offense unaccompanied by any averment that the aggravating cir- cumstances do not exist. In such a case the offense charged is to be deemed the minor offense, and punishable as such. — State v. Ged Ui CRIMINAL PEOCEDURE. §395 but where death occurs that fact should be specifically- alleged to reach the greater crime and subject the ac- cused, on conviction, to the greater punishment.^ § 395. Negativing statutory exceptions. The general rules governing the negati^dng of exceptions have been already fully treated.^ In an indictment charging the offense of abortion, where the exceptions constitute a part of the statutory offense, they must be negatived,^ otherwise there will be no offense charged.* But where icke, 43 N. J. U (14 Vr.) 86, 4 Am. Cr. Rep. 6. See Lamed v. Com., 53 Mass. (12 Mete.) 240; Com. v. Wood, 77 Mass. (11 Gray) 85. 2 State V. Drake, 30 N. J. L. (1 Vr.) 422. Allegation as to whether or not death resulted is not a descrip- tion of the offense, but merely goes to the degree of the punish- ment. — State V. Dean, 85 Mo. App. 473. 1 See, supra, §§ 288, 289. 2 Johnson v. People, 33 Colo. 224, 108 Am. St. Rep. 85, 80 Pac. 133; State V. Meek, 70 Mo. 355, 35 Am. Rep. 427; State v. Longstreth, 19 N. D. 268, 121 N. W. 1114, Ann. Cas. 1912D, 1317. Sufficient negativing of necessity of administering drug to save life. — State V. Jones, 4 Penn. (Del.) 109, 53 Atl. 858. See, also, State V. Gordy, 5 Penn. (Del.) 556, 60 Atl. 977. The negation is sufficient where it avers that the acts were done with a specific intent, it not being then necessary for the preserva- tion of the life of the deceased. — Beasley v. People, 89 111. 571. To charge that the act was "un'- lawfully" done sufficiently nega- tives or precludes any inference or possibility that the act was done under circumstances of justifica- tion. — Com. v. Sholes, 95 Mass. (13 Allen) 554. See Johnson v. Peo- ple, 33 Colo. 224, 108 Am. St. Rep.' 85, 80 Pac. 133. Where the indictment alleged that the accused, with intent to procure a miscarriage, adminis- tered drugs to a pregnant woman, the same not being necessary to preserve her life, sufficiently nega- tived not only the necessity of the drugs but also the necessity of the miscarriage. — State v. Brown, 26 Del. 499, 85 Atl. 797. Where the indictment alleges "that the employment of the said instrument not being necessary to preserve the life of the woman" without alleging that the miscar- riage was not necessary, is defec- tive and must be quashed on mo- tion. — ^Bassett v. State, 41 Ind. 303; Wllley V. State, 46 Ind. 363. Insufficient negation. — An aver- ment that the act was done "ma- liciously and without lawful justification" is not a sufficient negation of the exception "unless necessary to preserve her life." — State V. Stokes, 54 Vt. 178. 3 State V. Meek, 70 Mo. 355, 35 Am. Rep. 427. An indictment simply charging that the defendant produced an §§ 396, 397 ABORTION. 445 the exceptions set forth in the statute are merely mat- ters of defense, which must be afiSrmatively proven, they need not be negatived in the indictment.* § 396. Publishing information where abortion may BE procured.^ Many of the States have statutes making it an offense to in anywise give or publish infor- mation as to where an abortion may be procured.^ Under such a statute a charge of making public by print and writing, words and language that gave notice and information where advice might be obtained for pro- curing an abortion, and charging the circulation of such notice and information, must allege the manner in which- the print and writing were made public, and how the writing and information were circulated f but where the charge is the distributing of such advertisements, the indictment need not specifically allege guilty knowledge of the contents of the advertisement, it being sufficient to charge that accused knowingly distributed such adver- tisement.* § 397. Joinder of counts — Election. An indictment or information in four coTints, charging criminal abortion under the statute,^ two of the counts being used to state abortion charges no offense; like- ware, Laws, p. 930; Florida, Rev. wise it Is insufficient to charge Stats. 1892, § 2619 ; Idaho, Rev. only that the abortion was pro- Stats., § 6843; Indiana, Rev. Stats., duced when It was unnecessary to § 1997 ; Maryland, Pub. Gen. Laws, save the life of the mother. — State p. 460; Massachusetts, Pub. Stats., V. Meek, 70 Mo. 355, 35 Am. Rep. p. 1166, § 10; Mississippi, Ann. 427. Code, §1217; Montana, Pen. Code, 4 Johnson v. People, 33 Colo. 224, § 568; Nevada, Gen. Stats., § 4853; 108 Am. St. Rep. 85, 80 Pac. 133; Ohio, Rev. Stats., §7027; Rhode State V. Rupe, 41 Tex. 33. Island, Pub. 'Stats., p. 687, § 21. 1 For form of indictment, see 3 State v. Fiske, 66 Vt. 434, 10 Form No. 264. Am. Or. Rep. 9, 20 Atl. 633. 2 As in Arkansas, Sand. & H. 4 Com. v. Hartford, 193 Mass. Dig., §1640; California, Kerr's 464, 79 N. E. 784. Cyc. Pen. Code, §317; Connecti- i Drawn under How. Stats, of cut, Gen. Stats. 1888, § 1413; Dela- Mich., § 9107. 446 CRIMINAL PROCEDUKB. § 398 the same statutory crime of manslaughter by the use of different instruments, both of which are embodied in the statute, the counts are properly joined f but if a fourth is added charging manslaughter at common law committed upon a day subsequent to the time mentioned in the for- mer counts, two distinct and different offenses are charged, which are of a different nature, and on motion an election wiU be required by the court.* § 398. DxjPLiciTY. It is not duplicity in an indictment alleging abortion to charge, in the lang-uage of the stat- ute, both the administration of drugs and the employ- ment of instruments ;^ or to charge the use of drugs and medicines and by violence internally and externally ap- plied to the woman ;^ or to charge both miscarriage and death, where the statute provides a penalty "if the woman miscarries or dies in consequence."* 2 People V. Sweeney, 55 Mich. i State v. Gaul, 88 Wash. 295, 586, 22 N. W. 50; People v. Ses- 152 Pac. 1029. sions, 58 Mich. 594, 26 N. W. 291; ^ ^^^^ ^ g^^^ ^g ,j,ex. Or. Rep. People V. McDowell, 63 Mich. 229, .„, qo q W 1109 30 N. W. 68. ^^^' ^^ ^- ^- ^^''^• 3 People V. Aiken, 66 Mich. 460, * Hauk v. State, 148 Ind. 238, 11 Am. St. Rep. 512, 7 Am. Cr. Rep. 46 N. E. 127, 47 N. E. 465. S45, 33 N. W. 821, CHAPTER XX INDICTMENT — SPECIPIO CRIMES, Adultery. § 399. In general. § 400. Following language of statute. § 401. Name and description of particeps criminis. § 402. Time and place. § 403. Not husband and wife. § 404. Unnecessary allegation. § 405. Joinder of the parties. § 406. Joinder of offenses. §407. Duplicity. § 399. In general.^ The common-law offense of adultery- has been changed and modified by statute in most of the states, and in some of the states^ the common-law crime of adultery no longer exists, but the offense is known by some other designation. In such a state if the indict- ment charges adultery that fact will not vitiate it where otherwise sufficient, for the reason that the sufficiency does not depend upon the name by which the prosecuting officer designates the crime, but upon the specific allega- tions of facts ; a wrong designation of the crime charged, or the absence of aU designation, does not vitiate an indictment or information otherwise sufficient.* Adultery not defined by the statute. An allegation that the accused "did unlawfully commit the crime of adul- tery by then and there having unlawful intercourse ' ' with a person named, has been held to be sufficient, although the words "sexual" and "carnal" are omitted.* 1 See, also, Fornication, infra, llnger's Ann. Codes and Stats., §§ 698-707. § 7231. As to forms of Indictment for 3 State v. Nelson, 39 Wash. 221, adultery, see Forms Nos. 265 et 81 Pac. 721. seq. 4 United States v. Griego, 11 2 As In Washington, under Bal- N. M. 392, 72 Pac. 20, reversed (447) 448 CKIMINAIj peoceduee. §400 Surplusage will not render bad an indictment or infor- mation for adultery which is otherwise good, such as an unnecessary allegation that it was found on the com- plaint of the injured husband or wife.^ § 400. FoLiiOwiNG LANGUAGE OF STATUTE. An indict- ment or information charging adultery which follows the words of the statute creating or defining the offense, is sufficient. 1 The precise words of the statute need not be used, substantial compliance with the rule requiring the use of the language of the statute being sufficient;^ but where the words of the statute are not followed, the indictment or information should allege the facts with cer- tainty,* and certainty according to the common law is suf- ficient.* In such a case nothing can be taken by intend- on another point in 12 N. M. 84, 75 Pac. 30. 5 State V. Mahan, 81 Iowa 121, 46 N. W. 855. 1 Lord V. State, 17 Neb. 526, 6 Am. Cr. Rep. 17, 23 N. W. 507; State V. Clark, 54 N. H. 456, 1 Am. Cr. Rep. 34; State v. Tally, 74 N. C. 322; State v. Stubbs, 108 N. C. 774, 13 S. E. 90. Charging party with aduitery, alleging that it was committed by her by permitting the man to have carnal knowledge of her body, is sufficient. — State v. Moore, 36 Utah 521, Ann. Gas. 1912A, 284, 105 Pac. 293. 2 Lyman v. People, 198 111. 544, 64 N. E. 974, affirming 98 111. App. 386; State v. Tally, 74 N. C. 322; Gormain v. Com., 124 Pa. St. 536, 23 W. N. C. 405, 17 Atl. 26. 3 Indictment sufficiently certain to apprise defendant what is charge d. — State v. Nelson, 39 Wash. 221, 81 Pac. 721. An indictment alleging that the defendants "did then and there unlawfully and illegally each with the other live together in an open state of adultery, the said C. being then and there a married man, having been previously married to one D., and the said L. S. being then and there a married woman, having been previously married to one E. S., contrary" etc., is suffi- ciently plain and certain. — Crane V. People, 168 III. 395, 48 N. E. 54, affirming 65 111. App. 492. An indictment charging that the defendant, being a married man and having a wife alive, naming her, did commit adultery with a certain other woman, naming her, was held sufficient without alleg- ing carnal knowledge and that the paramour was not his wife. — Helf- rich V. Com., 33 Pa. St. 68, 75 Am. Dec. 579. 4 State V. Bridgman, 49 Vt. 202, 24 Am. Rep. 124. § 401 ADULTERY. 449 ment ; the accused must be brought within all the material words of the statute.^ § 401. Name and desceiptiojst of pabtioeps ceiminis. In an indictment or information charging adultery, nothing can be taken by intendment ; in the description of the per- son, and otherwise, the accused must be brought clearly within all the material words of the statute.^ It is essen- tial to the crime of adultery that at least one of the par- ties shall be married, and this fact must be distinctly alleged in the indictment or information.^ The sex^ or race* of the party charged or of the particeps criminis need not be alleged, and the fact that the parties are described as "male" and "female," instead of "man" and "woma,n," as designated in the statute, is imma- terial.^ In Pennsylvania, where a married woman is accused of adultery, the name of her husband must be set out,® but where a married man is charged, the name of his wife need not be set out.'^ In Texas, and perhaps elsewhere, 5 state V. Sekrit, 130 Mo. 401, than one offense. — State v. Nelson, 32 S. W. 977. 39 Wash. 221, 81 Pac. 721. 1 State V. Sekrit, 130 Mo. 401, 32 2 Com. v. Reardon, 60 Mass. (6 S. W. 977. Cush.) 78; State v. Bishee, 75 Vt. In Texas the indictment need 293, 54 Atl. 1081. not allege accused was not mar- As to sufficiency of allegation, Tied to the particeps criminis see Com. v. Hussey, 157 Mass. 415, where it alleges lawful marriage 32 N. E. 362. to another party who is desig- 3 McLeod v. State, 35 Ala. 395; nated.— Lee v. State, 47 Tex. Cr. Hildreth v. State, 19 Tex. App. 195. Rep. 464, 83 S. W. 1110. gee, also, infra, § 404, footnote 1. Varying grades of the offense ^ ^^^^^^^ ^ g^^^^^ ^4 ^^ ^0 g^^ being named in the statute, e. g., g^^^^_ g^^^^^ 33 ^^ ^^^^ ^^ g^^^ adultery, living in a state of adul- ^^^^^^ ^ ^^^^ footnote 3. B Holland v. State, 14 Tex. App. 182. tery, and lewd and lascivious con duct, an indictment or information so framed that accused may be convicted of either on the evi- * Com. v. Carson, 4 Pa. Law J. dence, seems not to be open to 271, 2 Pars. Sel. Cas. 475. the objection that It charges more 7 Davis v. Com., (Pa.) 7 Atl. 194. I. Grim. Proc. — 29 450 CRIMINAL PROCEDURE, §401 the rule is that the name of the husband of a married woman charged with adultery need not be set out.* Name^ of particeps criminis must be alleged ;*" and it may be necessary, under statutory provision, to allege whether the party was married or single. Thus, under one section of the Vermont statute it is adultery for a man to have sexual intercourse with a married woman other than his wife,^^ and under another section of the same statute it is adultery for a man to have sexual inter- course with an unmarried woman ;^^ hence, in this state, an indictment which fails to allege whether the particeps criminis was married, is fatally defective,^^ because it fails to allege a material and essential fact under either sCollum V. state, 10 Tex. App. 708; Hildreth v. State, 19 Tex. App. 195; Lenert v. State, (Tex. Cr.) 63 S. W. 563. 9 Indicted by name under which known, a joint defendant not en- titled to acquittal on showing true name of co-defendant not that under which indicted. — State v. Glaze, 9 Ala. 283. 10 State V. Vittum, 9 N. H. 519. See, however, obiter dictum in Fair V. Farr (a divorce case), 34 Miss. 597, criticizing this. "Roxcena Jones" properly amended by adding "otherwise known as 'Rosa Jones,' " such amendment in nowise changing the proof required of the prosecu- tion, and not requiring any further or different proof on the part of the defendant. — State v. Arnold, 60 Vt. 731. "With a certain woman, whose name to said grand jurors is un- known," etc., in connection with an allegation that accused is a mar- ried man and the woman was not his wife, has been held to be a suffi- cient description of the particeps criminis. — Com. v. Thompson, 56 Mass. (2 Cush.) 551. 11 Vt. Stats., § 5057. Under Illinois statute (Revised Stats. 1893, ch. 38, §408), indict- ment is not defective for failure to state that the woman was mar- ried, there being an averment that the parties were not married to each other. — Lyman v. People, 98 III. App. 386, affirmed 198 111. 544, 64 N. E. 974. "Lawfully married to another person" is sufficient under the Texas statute. — Lenert v. State, (Tex. Cr.) 63 S. W. 563. In IVIassachusetts any form of words stating the woman was the wife of another, is sufficient. — Moore v. Com., 47 Mass. (6 Mete.) 243, 39 Am. Dec. 724; Com. v. Reardon, 60 Mass. (6 Cush.) 78. 12 Vt. Stats., § 5056. 13 See State v. Searle, 56 Vt 516; State v. Bisbee, 75 Vt. 293, 15 Am. Cr. Rep. 460, 54 Atl. 1081. In Illinois, however, on joint in- dictment for adultery it is imma- terial that the indictment fails to state whether the woman was mar- §402 ADULTERY. 451 of said sections of the statute," and tlie defect is not cured by verdict.^® Indictment against two for fornication and adultery, the fact that the woman is designated as a "spinster," is not ground for arresting judgment.'* § 402. Time and piace. Every material fact which serves to constitute the offense charged should be alleged and set forth with precision and certainty as to time^ and place.^ After the time has been once stated with cer- tainty it may be referred to in respect to other facts alleged by the terms *'then" and "there" without repe- tition.^ The offense may be charged as having been com- mitted on a certain day without a continuando.* When a continuing offense is charged it may be alleged as taking place between certain dates.^ ried, where it is alleged she was not the wife of the other. — Lyman V. People, 98 111. App. 386, affirmed 198 111. 544, 64 N. B. 974. 14 State V. Bishee, 75 Vt. 293, 15 Am. Cr. Rep. 460, 54 Atl. 1081. 16 Id. See Baker v. Sherman, 73 vt. 26, 50 Atl. 633. 16 State V. Guest, 100 N. C. 410, 6 S. E. 253. "Maiden," In an indictment, means simply "unmarried," not necessarily "v i r g i n." — State v. Shedriock, 69 Vt. 428, 38 Atl. 75. 1 State V. Thurstin, 35 Me. 205, 58 Am. Dec. 695. It is enough to aver the crime was committed within the period of limitations without alleging spe- cific acts on specific dates. — State V. Anderson, 140 Iowa 445, 118 N. W. 772. Where the fact of committing the crime at a certain time and place with a certain woman is first alleged, but to the fact that she was a married woman and the wife of another no time was averred, the indictment is insuffi- cient in not alleging the latter were facts at the time of the offense and not at the time of the indictment. — State v. Thurstin, 35 Me. 205, 58 Am. Dec. 695. 2 State V. Thurstin, 35 Me. 205, 58 Am. Dec. 695. Contra: State v. Hinton, 6 Ala. 864. 3 State V. Thurston, 35 Me. 205, 58 Am. Dec. 695; State v. Eggles- ton, 43 Ore. 346, 77 Pac. 738. 4 State V. Glaze, 9 Ala. 283 ; Ly- man V. People, 198 111. 544, 64 N. E. 974, affirming 98 111. App. 386; Swancoat v. State, 4 Tex. App. 105. 6 State V. Nelson, 39 Wash. 221, 81 Pac. 721. 452. CRIMIN-AIi PROCEDUEB. §§ 403, 404 § 403. NoT'HTJSBANDAisTD WIPE. There must be an aver- ment that the parties were not husband and wife.^ Any form of words stating that she was the wife of some person other than the accused is sufficient.^ It has been held to be proper to charge in one count that accused was married to another person then living, and in another count that the particeps criminis was married to another person then living." § 404. Unnecessaby allegations. Neither the sex^ nor that the parties were of different sexes need be alleged,^ nor that they are of different races.* It is unnecessary to aver to whom either spouse is married ;* that the act was 1 Moore v. Com., 47 Mass. (6 Met.) 243, 39 Am. Dec 724; Com. V. Reardon, 60 Mass. ..6 Cush.) 79; Clay V. State, 3 Tex. App. 499. Allegation that thb woman is a singie person is a sufficient allega- tion that she is not his wife. — State V. Clark, 54 N. H. 456, 1 Am. Cr. Rep. 34. A charge that the defendant committed the crime with B., the wife of one C, the defendant being then and there a married man and having a lawful wife living suffi- ciently avers that the defendant was married to another than B. at the time.— State v. Hutchinson, 36 Me. 261. Averment that woman "being lawfuily, married to another per- son" sufficiently avers that she was married to another than her CO - defendant. — Lenert v. State, (Tex. Or.) 63 S. W. 563. 2 Names v. State, 20 Ind. App. 168, 50 N. E. 401; Moore v. Com., 47 Mass. (6 Met.) 243, 39 Am. Dec. 724; Com., v. Reardon, 60 Mass. (6 Cush.) 79; State v. Parker, 57 N. H. 123; State v. Clark, 83 Vt. 305, 75 Atl. 534, Ann. Cas. 1912A, 261. Giving the woman a surname different from that of the accused does not sufficiently raise the im- plication that she was not his wife, and is insufficient. — Moore v. Com., 47 Mass. (6 Met.) 243, 39 Am. Dec. 724. 3 Brown v. State, 69 Tex. Cr. Rep. 138, 154 S. W. 567. , 1 See, supra, § 401, footnote 3. 2McLeod V. State, 35 Ala. 395; State V. Dunn, 26 Ark. 34; State v. Lashley, 84 N. C. 754; Hildreth v. State, 19 Tex. App. 195. 3 Mulling V. State, 74 Ga. 10. See, supra, § 401, footnote 4. , 4 Moore v. Com., 47 Mass. (6 Met.) 243, 39 Am. Dec. 724; Davis V. Com., 114 Pa. St. 49, 7 Atl. 194; Collum V. State, 10 Tex. App. 708; Hildreth v. State, 19 Tex. App. 195. An allegation of the name of the defendant's wife is surplusage. — Bodkins v. State, 75 Tex. Cr. Rep. 499, 172 S. W. 216. §404 ADUJjTERT. 453 feloniously dDne;'''"or to al]eg6 either 'scienter^* oV intent.'' It is also unnecessary to name the town of residence of the defendant at the time of commission of the offense.* It is unnecessary to allege by whom or at whose instance pros- ecution is commenced,® or that it was upon complaint of a person authorized by statute to commence the action,^" 5 state V. Anderson, 140 ' Iowa 445, 118 N. W. 772; State v. Clark, 83 Vt. 305, 75 Atl. 534, Ann. Cas. 1912A, 261. Indictments or informations which did not use the word "felo- nious" or any equivalent term, up- held on demurrer, although no ohjection was made that such word was not used. See Love v. State, 124 Ala. 82, 27 So. 217; Crane v. People, 168 111. 395, 48 N. E. 54; Lyman v. People, 198 111. 544, 64 N. E. 974; State v. Chand- ler, 96 Ind. 592; State v. Hutchin- son, 36 Me. 261; Com. v. Elwell, 2 Met. (Mass.) 190, 35 Am. Dec. 398; Com. v. Hussey, 157 Mass. 415, 32 N. E. 362; Com. v. Dill, 159 Mass. 61, 34 N. E. 84; State V. Clawson, 30 Mo. App. 139; Lord V. State, 17 Neh. 526, 23 N. W. 507; United States v. Griego, 11 N. M. 392, 72 Pac. 20; State v. Tally, 74 N. C. 322; Helfrich v. Com., 33 Pa. St. 68, 75 Am. Dec. 579; Grisham v. State, 10 Tenn. (2 Yerg.) 589; Fox v. State, 3 Tex. App. 329, 30 Am. Rep. 144; Ketch- ingman v. State, 6 Wis. 426. Where an indictment alleged that the defendant "did unlawfully and feloniously commit the crime of adultery by then and there hav- ing sexual intercourse with," etc., on demurrer being interposed be- cause it did not allege that it was feloniously done, the court held that it was sufficiently charged that it was feloniously done.— Reynolds v. United States, 7 Ind. Terr. 51, 103 S. W. 762. 6 Com. V. Elwell, 43 Mass. (2 Allen) 190, 35 Am. Dec. 398; Fox V. State, 3 Tex. App. 329, 30 Am. Rep. 144. 7 State V. Cutshall, 109 N. C. 764, 26 Am. St. Rep. 599, 14 S. E. 107. Compare: State v. Chillis, Brayt. (Vt.) 131; State v. Miller, 60 Vt. 90, 12 Atl. &26; State v. Grace, 86 Vt. 470, 86 Atl. 162. 8 Act of March 11th, 1807, pro- vided for a division of the fine be- tween the state and the super- visors of the road in the town Where defendant resided. — Duncan V. Com., 4 Serg. & R. (Pa.) 449. 9 State V. Brecht, 41 Minn. 50, 42 N. W. 602. 10 State V. Maas, 83 Iowa 469, 49 N. W. 1037; State v. Andrews, 95 Iowa 451, 64 N. W. 404; State v. Anderson, 140 Iowa 445, 118 N. W. 772; People v. Payment, 109 Mich. 553, 67 N. W. 689; State v. Brecht, 41 Minn. 50, 42 N. W. 602; State V. Dlugi, 123 Minn. 392^ 143 N. W. 971; State v. Hayes, 51 Ore. 466. 94 Pac. 751; State v. Ayles, 74 Ore. 153, 145 Pac. 19. ' . Better practice: While it is not necessary that the information should allege that the prosecution was commenced on the complaint of the other spouse, the better practice would be to allege the name of the spouse and that he, 454 CRIMINAL PEOCEDUEB. §405 but the fact is reqmred to be indorsed on the indictment or information under the provisions of the statute^^ in some states, and where so required a failure to comply with the statutory provision is fatal.^^ Marriage need not he alleged, it has been held, because that fact is necessarily implied by the term " adultery, " ^^ but it is thought "that the rule requiring marriage to be alleged is the better rule, as nothing can be taken by intendment ;^* and it has been said that it is not necessary to allege that the particeps criminis was married.^® § 405. JoiNDEK OP THE PAKTiBS. It Is uot nccessary that both parties to the offense in the crime of adultery shall be indicted,^ and while they may be jointly indicted,^ it has been said to be the better practice to indict the parties separately.' Where the parties are jointly in- dicted the jury may contact one and acquit the other,* and one party may be legally tried and convicted alone.^ or she was the complaining and prosecuting witness in the case. — Stone V. State (Oltla. Cr. App.), 155 Pac. 701. 11 As Iowa Code, § 4292. 12 See State v. Briggs, 68 Iowa 416, 27 N. W. 358. 13 State V. Hinton, 6 Ala. 864. 14 See, supra, § 401. 15 State V. Ling, 91 Kan. 647, 138 Pac. 582. 1 GA.— Wasden v. State, 18 Ga. 264; Bigby v. State, 44 Ga. 344; Disharoon v. State, 95 Ga. 351, 22 S. B. 698. IOWA — Stat© v. Dingee, 17 Iowa 232. KAN.— State v. Ling, 91 Kan. 647, 138 Pac. 582. N. C— State V. Cox, 4 N. C. (Term. Rep.) 165. R. I.— State v. Watson, 20 R. L 354, 78 Am. St. Rep. 871, 39 Atl. 193. WASH.— State v. Nel- son, 39 Wash. 221, 81 Pac. 721. 2 State V. Bartlett, 53 Me. 446; Com. V. Elwell, 43 Mass. (2 Met.) 190, 35 Am. Dec. 398; Alonzo v. State, 15 Tex. App. 378, 49 Am. Rep. 207. The general rule that where the same evidence as to the act which constitutes the crime applies to two or more they may be jointly indicted. — Com. v. Elwell, 43 Mass. (2 Met.) 190, 35 Am. Dec. 398. But they can not be jointly in- dicted for living In adultery with- out alleging that they so lived with each other; otherwise it does not show they participated in the same offense. — Maull v. State, 37 Ala. 160. 3 State V. Dingee, 17 Iowa 232. 4 Com. V. Bakeman, 131 Mass. 577, 41 Am. Rep. 248; Alonzo v. State, 19 Tex. App. 378, 49 Am. Rep. 207. 5 State V. Lyerly, 52 N. C. (7 Jones) 158; State v. Carroll, 30 S. C. 85, 14 Am. St. Rep. 883, 8 S. E. 433. §§ 406, 407 ADULTEET. 455 § 406. Joinder of offenses. There may be a joint in- dictment for adultery and fornication^ and these offenses may be charged in one count,^ or in separate counts.^ And a person may be tried at one time on two separate indict- ments, one charging abduction for purpose of unlawful intercourse, and the other charging adultery with the same girl.* But under an indictment charging adultery there can not be a conviction for fornication" unless all the elements of fornication have been charged.® § 407. Duplicity. An indictment or information is not open to the charge of duplicity because charging between the same parties different acts of adultery at different times,^ provided the different acts charged are contained in separate counts ; if they are all charged in one count the indictment or information vail be bad.^ 1 The offense Is sufficiently de- N. J. L. (1 Har.) 380, 32 Am. Dec. scribed by charging an unlawful 397. "bedding and cohabiting together." 5 People v. Rouse, 2 Mich. N. P. —State V. Jolly, 20 N. C. (3 Dev. 209; Cosgrove v. State, 37 Tex. & B.) 110, 32 Am. Dec. 656. Cr. Rep. 249, 66 Am. St. Rep. 802, 2 State T. Cowell, 26 N. C. (4 39 S. W. 367; Pena v. State, 46 Ired.) 231. Tex. Cr. Rep. 458, 80 S. W. 1014. 3 Garland v. State, 51 Tex. Cr. 6 Cosgrove v. State, 37 Tex. Cr. Rep. 643, 104 S. W. 898. Rep. 249, 66 Am. St. Rep. 802, 39 4 Com. V. Rosenthal, 211 Mass. S. W. 367. 50, Ann. Cas. 1913A, 1003, 97 N. B. i State v. Briggs, 68 Iowa 416, 609. 27 N. W. 358; State v. Clawson, The reason being that one would 30 Mo. App. 139; Ketchingman v. have necessarily been misled as to State, 6 Wis. 426. the charge intended to be proved 2 Com. v. Puller, 163 Mass. 499, against him. — State t. Lash, 16 40 N. E. 764. CHAPTER XXL INDICTMENT — SPECIFIC CBIMBS. Affray. •* § 408. Necessary averments. § 409. Charging mutual assault also, § 408. Necessary averments. An affray is a common- lavr offense, but it is defined and the punisliinent pre- scribed in many if not most of the states of the Union. The indictment or information,^ whether drawn under the common law or under statute, must distinctly aver that the offense was committed in a public place,^ by two or more persons f but it need not aver what kind of a pub- 1 As to forms of indictment, see Forms Nos. 289-292. 2 IND.— State v. Weekly, 29 Ind. 206; State v. Williams, 64 Ind. 553. MO. — State v. Warren, 57 Mo. App. 502. N. C— State v. Baker, 83 N. C. 649; State v. Griffin, 125 N. C. 692, 34 S. E. 513. S. C— State V. Sumner, 5 Strobh. L. 53. TENN.— State v. Priddy, 23 Tenn. (4 Humph.) 429; State v. Heflin, 27 Tenn. (8 Humph.) 84. An averment charging fighting occurred "in a certain public road and highway" is sufficient be- cause the court will take judicial notice that "a public road and highway" is a public place. — State V. Warren, 57 Mo. App. 502. Contra: State v. Weekly, 29 Ind. 206, holding that a "highway" is not necessarily "a. public place," within the meaning of the statute. An averment that the fighting occurred "in the town of Clarks- ville" is insufficient, because it might still have been in a private place there. — State v. Heflin, 27 Tenn. (8 Humph.) 84. 3 State V. Woody, 47 N. C. (2 Jones L.) 335; Simpson v. State, 13 Tenn. (5 Yerg.) 336; State v. Priddy, 23 Tenn. (4 Humph.) 429. Averment defendants fought in a public place, without alleging whom or what they fought, is bad. — State v. Vanloan, 8 Ind. 182. "Did unlawfully and voluntarily fight together," is sufficient. — State V. Billingsley, 43 Tex. 39. Charging that defendants "did make an affray by fighting" shows that the defendants fought against each other. — State v. Beuthal, 24 Tenn. (5 Humph.) 519. It seems that the contrary has been held in State v. Washington, 19 Tex. 128, 70 Am. Dec. 323, wherein fighting was not alleged in express terms, but it was al- leged that the defendants with force and arms at a named time (456) §408 AFFRAY. 457 lie place,* or describe it," or even name any specific place.® The facts constituting the offense must be specifically set out,'' it not being sufficient to designate the offense by name merely f but it is not necessary to allege in express terms that there was fighting, it being sufficient to charge that the defendants, at a certain time and place, were unlawfully assembled together, and being so unlawfully assembled and arrayed in a warlike manner, then and there did make an affray, to the great terror of divers good citizens,® or other like allegations showing the facts constituting the offense sought to be charged.^" Venue laid sufficiently where it is alleged that the of- fense took place within the county in which the indict- ment is found or information presented, without specify- ing the particular town or particular place where it occurred.^^ and place were unlawfully assem- bled and arrayed in a warlike man- ner and did make an affray, to the terror of the citizens, is sufficient. 4 Wilson V. State, 50 Tenn. (3 Heisk.) 278. 6 Shelton v. State, 30 Tex. 431. 6 State V. Warren, 57 Mo. App. 502; State v. Baker, 83 N. C. 649; State V. Griffin, 125 N. C. 692, 34 S. E. 513; State v. Lancaster, 168 N. C. 377, 84 S. E. 529. Charging mutual assault need not set forth the place in order that the court may see that it was a public place. — State v. Baker, 83 N. C. 649. 7 State V. Beuthal, 24 Tenn. (5 Humph.) 519. Words alone do not constitute an affray, but accompanied by acts — e. g., mutually drawing knives or other weapons — and at- tempting to use them, does con- stitute the offense. — Hawkins v. State, 13 Ga. 322, 58 Am. Dec. 517; Blackwell v. State, 119 Ga. 314, 46 S. E. 432 (drawing razor). 8 State V. Priddy, 23 Tenn. (4 Humph.) 429. 9 State V. Washington, 19 Tex. 128, 70 Am. Dec. 323; Saddler v. Republic, 1 Dall. Dec. (Tex.) 610. 10 "Beat, strike, kick, and bruise," "in an angry and quar- relsome manner, to the distur- bance of others," etc., sufficiently alleges the facts.— State v. Dunn, 73 Mo. 586. "Unlawfully and willingly fight together" in a public place is suf- ficient. — State V. Billingsley, 43 Tex. 93. With force and arms, etc., did make an affray by fighting, suffi- ciently certain and definite. — State V. Beuthal, 24 Tenn. (5 Humph.) 519. 11 State V. Warner, 4 Ind. 604. 458 CRIMINAL PEOCEDUEB. § 409 § 409. Chaeging muttjal assault also. It is thought to be good pleading to charge mutual assault as well as an affray, because where such assault is charged there may be a conviction of assault and battery where the evi- dence justifies, but does not warrant a conviction of an affray;^ but if mutual assault is not charged, there can be no conviction of the lesser offense.^ 1 state V. Brewer, 33 Ark. 176; assault and battery. — State v. State V. Allen, 11 N. C. (4 Hawks.) Wilson, 61 N. C. (Phil.) 237. ggg 2 Childs V. State, 15 Ark. 204. Conviction of affray bars subse- Charging fighting together by ^^^^^ conviction of assault and mutual and common consent, in- battery for the same cause. — Fritz eludes the charges of a mutual t. State, 40 Ind. 18. CHAPTER XXIL INDICTMElfT — SPECIFIC CMMES. Arson. § 410. In general. § 411. Negativing exceptions. § 412. Definiteness and certainty. § 413. Surplusage and immaterial averments. § 414. Joinder and duplicity. § 415. Averment as to time. § 416. Averment of degree. § 417. Unnecessary averments. § 418. Intent and malice. § 419. Sufficiency of averment. § 420. Intent to injure or defraud. § 421. Description of building. § 422. Averments to show venue. § 423. Averments as to location. § 424. Averments as to value. § 425. Ownership — Necessity of averment as to. § 426. Sufficiency of averment as to. §427. Of public building. § 428. Occupancy or possession — Necessity of averment as to. §429. Burning. § 430. Attempt to commit arson. § 410. Iw GENERAi..^ An indictment for arson, as to its general form and requisites, is governed by the general rules laid down in the preceding chapter, as to general form, technical oniissions,^ clerical errors,' conclusion,* 1 As to forms of Indictment, see "Was" wilfully burned for "did" Forms Nos. 292-337. wilfully set fire to and burn, etc., 2 "Vi et armis," or its equlva- held not to vitiate the indictment, lent in English, need not be used on motion in arrest of judgment, in an indictment charging arson. — it being a mere clerical error. — State V. Temple, 12 Me. 214. See, People v. Duford, 66 Mich. 90, 33 infra, § 417, footnote 4. N. W. 28. 3 As to clerical errors, seo, 4 As to conclusion, see, supra, supra, §§322-328. §§329-334. (459) 460 CRIMINAL PBOCEDUEE. §§ 411, 412 and the Kke." Everything essential to be proved on the trial in order to secure a conviction must be alleged, and as the offense is now a statutory one in probably all the states of the Union, the indictment or information should conclude ' ' against the form of the statute, ' ' etc., or it will be bad.® § 411. Negatiying bxckptions. We have already seen that where there are provisos and exceptions in the enacting clause of a statute creating and punishing an offense,^ or in the same clause,^ they must be negatived in the indictment or information; but where they form no part of the definition of the offense,* and are not an element thereof, they need not be negatived.* Thus, an indictment or information charging arson need not nega- tive the fact that the accused burned the building with the consent of the owner,® that being matter of evidence and defense.® § 412. DEFiNiTEiirEss AND CEBTAiNTT. An . indict- ment or inforihation charging arson must state all the facts and circumstances with definiteness and certainty.^ It has been said that an averment in an indictment in the alternative of "burned or caused to be burned" is bad, for the reason that the facts and circumstances of the 6 Initials instead of Christian in §3278, has intent to injure as name in full, Is not defective, un- an element, an information under der a statute regulating procedure the former section need not nega- in case of misnomer. — State v. tive that the building was burned Johnson, 93 Mo. 73, 5 S. W. 699. with intent to injure the insurer. — See, also, supra, §§143, 144. Goff v. State, 60 Fla. 13, 53 So. 6 Chapman v. Com., 5 Whart. 327. (Pa.) 427, 34 Am. Dec. 565, B Crowder v. State, 77 Tex. Cr. See, supra, § 330. Rep. 122, 177 S. W. 501. 1 See, supra, § 290. 6 Crowder v. State, 77 Tex. Cr. 2 See, supra, § 289. Rep. 122, 177 S. W. 501. 3 See, supra, § 288. i May v. State, 85 Ala. 14, 5 So. 4 Under Florida statute (Gen. 14; People v. Hood, 6 Cal. 236; Stats. 1906, § 3276), an intent to People v. Fairchild, 48 Mich. 31, 11 injure Is not an element of the N. W. 773; Hennessey v. People, oftense, and the offense described 21 How. Pr. (N. Y.) 239. § 413 AESON. , , 461 offense are not sufficiently set forth. ;2 but this holding has been overruled in a later case by the same court.* The careful pleader will follow the general rule already discussed,* and allege all disjunctive statements in the statutes in the conjunctive form in the indictment or information. § 413. SUEPLUSAGE AND IMMATERIAL AVERMENTS. An indictment or information charging arson following the form prescribed by code or statute/ or in the lan- guage of the statute,^ is sufficient; and any unnecessary or immaterial allegation wiU not vitiate the indictment or information f such additional and unnecessary matter will be treated as surplusage.* Thus where the burning constitutes arson, and is equally punishable, whether com- mitted in the daytime or in the night-time, an allegation in the indictment or information charging the arson as having been committed "between the hour of sunset one day and the hour of sunrise the next day" will be treated 2Hortoii V. state, 60 Ala. 72; 1034; Tinker v. State, 77 Tex. Cr. People V. Hood, 6 Cal. 236, over- 506, 179 S. W. 235. ruled on this point in People v. In State v. Donovan, (Del.) Myers, 20 Cal. 79; Whiteside v. 90 Atl. 220, the indictment was State, 44 Tenn. (4 Cold.) 175. held insufficient, although sub- sin People V. Myers, 20 Cal. 76, stantially in the language of the the court saying, on p. 79, "the statute. decision in People v. Hood, on this "Corn-crib containing corn," in point, was made without due con- ^^ indictment charging arson, in- sideration, and should be over- eludes or is equivalent to the stat- j.^j^^,. utory words "corn-pen containing 4 See, supra, § 278. com."— Cook V. State, 83 Ala. 62, 3 Am. St. Rep. 688, 3 So. 849. 1 Cheatham v. State, 59 Ala. 40; . 3 Surplus allegation as to own- Leonard V. State, 96 Ala. 108, 11 gpghip can not alter the nature So. 307; Peinhai-dt v. State, 161 of the offense.— Peinhardt v. State, Ala. 70, 49 So. 831; Williams v. igl Ala. 70, 49 So. 831. State, 4 Ala. App. 92, 58 So. 925. 4 ggg^ supra, § 200. 2 People V. Harris, 263 111. 406, Indictment will not be held bad ' 105 N. B. 303; Allen v. State, 183 where the part deniurred to is Ind. 37j 107 N. B. 471; State v. surplusage.— rState v. SneUgrove, ■ Caporale, 85 N. J. L. 495, 89 Atl. ■ 71 Ark. 101, 71 S. W. 266. 462 CRIMINAL PROCEDURE. § 414 as surplusage." "As a prison" in an allegation for arson of a "house used as a prison," is surplusage;* and so, also, is "feloniously," under a statute making a wilful burning arson ;'^ "in whicli there was no human being," under a statute,^ making the burning of a dwelling-house arson in the first degree whether there was any one in the house or not;* "the house of the sheriff"^" in an indictment charging the burning of a jail;^^ "unlawfully, maliciously, and feloniously," under a statute^^ making wanton and wilful burning arson ;'^ "with intent then and there to injure and destroy the property," is sur- plusage under a statute^* making a wilful and malicious burning arson.^^ Redundancy in alleging ownership of the house burned in a person named and its occupancy by the accused as the agent of a person holding under a lease from the owner, does not vitiate an indictment or information charging arson.^® Designation by wrong name of the offense charged, is immaterial where the specific acts constituting the arson are set forth." § 414. JoiNDEB AND DUPLICITY. It is a general principle of criminal pleading that a single offense can not be split into separate parts and the accused prose- cuted for each separate part, although each part may of 5 Com. V. Lamb, 67 Mass. (1 ii In re Stevens, 4 Leigh (Va.) Gray) 493. 683. eChlldress v. State. 86 Ala. 77, 'H f" ^^'itf 'f,« ^ r in,« 13 State V. Battle, 126 N. C. 1036, 5 So. 775. gg g J, g24_ 7 State V. Keen, 95 N. C. 646. 14 Sand. & H. Big. (Ark.), 8 Ala. Code, 1886, § 3780. § 1^64. 9 Paine v. Stat©, 89 Ala. 26, 8 15 State V. Snellgrove, 71 Ark. 101, 71 S. W. 266. ^°- 1^^- 16 Rogers V. State, 26 Tex. App. 10 Public buildings, as to allega- 404, 9 S. W. 762. tion of ownership ol, see, infra, n People v. Morley, 8 Cal. App. § 427. 372, 97 Pac. 84. §414 ARSON. 463 itself constitute a separate offense.^ Offenses arising out of the same tranaaction may be charged in the same indictment or information.^ Thus where a grist-mill with all its contents, including books of account of the owner, were destroyed by one and the same fire, it constitutes but one offense.* The same is true in the case of the burning of a cotton-house belonging to A, and the burn- ing of the cotton in the house belonging to A and B, and the charging of both in one indictment will not con- stitute duplicity;* the same is true of a charge of burn- ing a "warehouse and tobacco-house" belonging to a des- ignated person and occupied by the accused.^ And an indictment for arson charging as a single act the burn- ing of several houses, is not bad for duplicity,^ even though the houses belong to different owners,'' for the 1 state V. Colgate, 31 Kan. 511, 47 Am. St. Rep. 507, 5 Am. Cr. Rep. 71, 3 Pac. 346. 2 Such as procuring another to commit by burning a dwelling- house and an attempt to do so. — State V. Stephens, 170 N. C. 145, 87 S. B. 131. An indictment charging arson in the first degree in three counts and in the second degree in two counts charges only one crime. — People V. Myer, 164 App. Div. (N. y.) 296, 150 N. Y. Supp. 317. Counts charging a defendant with attempting to burn another's house and with setting fire to his own property witli intent to de- fraud the insurers may be joined in the same indictment. — Posey v. United States, 26 App. D. C. 302. 3 State V. Colgate, 31 Kan. 511, 47 Am. St. Rep. 507, 5 Am. Cr. Rep. 71, 3 Pac. 346. 4 Clue V. State, 78 Miss. 661, 84 Am. St. Rep. 643, 29 So. 516. The defendant moved to require the state "to elect on which count" in the indictment it would pro- ceed. The court held that in case the indictment were duplicitous, the objection should have been taken by demurrer. — Clue v. State, 78 Miss. 661, 84 Am. St. Rep. 643, 29 So. 516. 5 Wright V. Com., 155 Ky. 750, 160 S. W. 476. Where the indictment charged that the defendant set fire to and burned a barn, it does not charge two crimes conjunctively. — State V. Jones, 106 Mo. 302, 17 S. W. 366. 6 Woodford v. People, 62 N. Y. 117, 20 Am, Rep. 464; see Com. v. Squire, 42 Mass. (1 Mete.) 258; Reg. V. Trueman, 8 Car. & P. 727, 34 Eng. C. L. 986. 7 R. V. Trueman, 8 Car. & P. 727, 34 Eng. C. L. 986. A well recognized rule of crim- inal pleading, applicable to all crimes. See Ben v. State, 22 Ala. 9 (by one blow killing two men) ; 464 CRIMINAL PEOCEDUKE, §414 reason tliat matters however multifarious will not oper- ate to make an indictment or information double, and open to the objection of duplicity, where taken together they constitute but one connected charge or transaction.* Thus, an indictment alleging that the parties agreed to burn an elevator and in pursuance of that agreement did burn the elevator, is not duplicitous in that it charged state V. Benham, 7 Conn. 414 (hav- ing possession at one time of sev- eral forged bank-notes of different banks); Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528, and Copen- baven v. State, 15 Ga. 264 (bur- glary and robbery, where based on the same transaction) ; Jack- son V. State, 14 Ind. 327 (larceny at one time of several articles, be- longing to several owners) ; Clem V. State, 42 Ind. 420, 13 Am. Rep. 369 (by one blow killing two per- sons) ; State v. Egglesht, 41 Iowa 574, 20 Am. Rep. 612 (uttering several forged checks at a bank at one time) ; Hinkle v. Com., 34 Ky. (4 Dana) 518 (setting up a gaming table and keeping a gam- ing table and Inducing others to bet thereon, committed by one person at the same time) ; Fisher V. Com., 64 Ky. (1 Bush) 211, 89 Am. Dec. 620 (larceny at one time of several articles, belonging to different owners) ; Larton v. State, 7 Mo. 55, 37 Am. Dec. 179 (larceny of several articles at the same time, belonging to several differ- ent owners) ; State v. Cooper, 13 N. J. L. (1 Gr.) 361, 25 Am. Dec. 490 (arson and homicide caused by the burning) ; People v. Allen, 1 Park. Cr. Rep. (N. Y.) 445 (forging and counterfeiting in- dorsements on promissory note. and uttering and publishing same as true) ; People v. McGowan, 17 Wend. (N. Y.) 386 (larceny at one time of several articles, belonging to different owners) ; State v. Lewis, 9 N. C. (2 Hawks.) 98, 11 Am. Dec. 741 (burglary and lar- ceny and robbery, where latter is the same felonious taking) ; State V. Hennessey, 23 Ohio St. 339, 13 Am. Rep. 253 (larceny of several articles at the same time, though they belong to different owners) ; Fiddler v. State, 26 Tenn. (7 Humph.) 508 (running a horse- race and betting on the same) ; State V. Williams, 29 Tenn. (10 Humph.) 101 (larceny of several articles at the same time, belong- ing to several owners) ; Womack V. State, 47 Tenn. (7 Cold.) 509 (by one blow killing two per- sons) ; Wilson v. State, 45 Tex. 76, 23 Am. Rep. 602, and Hudson V. State, 9 Tex. App. 151, 35 Am. Rep. 732 (larceny of several arti- cles at the same time and in the same act, belonging to different owners) ; State v. Damon, 2 Tyl. (Vt.) 387 (by one blow wounding two men) ; R. v. Jones, 4 Car. & P. 217, 19 Eng. C. L. 483 (larceny at one time of several articles, belonging to different owners). 8 Barnes v. State, 20 Conn. 232; Rowes V. Lusty, 4 Bing. 428, 13 Eng. C. L. 572. § -±15 ARSON. 465 the crime of conspiracy to burn and burning, for the rea- son that the conspiracy is merged in the burning.® Like- wise an allegation in an indictment that the defendant "in the night-time" burned a warehouse does not charge two distinct offenses, where the statute makes it equally, arson, and equally punishes, a burning in the daytime or night-time.^" Distinct counts may be used to set forth the various acts or steps in the consummation of the alleged offense, • or the different ownership of the various buildings burned ;^^ and there may be a count for burning a shed or barn under one section of the statute, and a count for doing the same act with intent to burn the dwelling- house under another section of the statute, without ren- dering the indictment or information open to the charge of duplicity.^2 Objection that two offenses charged in an indictment or information, the defect can not be reached by de- murrer.^' § 415. Averment as to time. In the absence of any provision in the particular statute requiring it, an averment as to the time of the offense charged is .un- necessary,^ it is sufficient to allege that the crime was committed on or about a certain date;^ and it has been said that in those cases where the statute* provides that arson in the daytime shall be punished with a shorter 9 "The conspiracy to burn Is 12 State v. Ward, 61 Vt. 153, 17 merged in th« consummated act Atl. 483. of burning, and so the offense is Clue v. State, 78 Miss. 661, charged is that of arson only, and 84 Am. St. Rep. 643, 29 So. 516. not the independent offenses of a i State v. Tenneborn, 92 Iowa conspiracy to commit arson and 551, 61 N. W. 193 ; State v. Spiegel, arson."— Hoyt v. People, 140 111. Ill Iowa 701, 83 N. W. 722; Dick 588, 16 L. R. A. 239, 30 N. F. 315. v. State, 53 Miss. 384. 10 Neither is it bad for uncer- 2 State v. McDonald, 16 S. D. 78, tainty.— Com. v. Uhrig, 167 Mass. 91 N. W. 447. 420, 45 N. B. 1047. 3 As Georgia Rev. Code (1871),. 11 Miller v. State, 45 Ala. 24. § 4318. I. Crim. Proo. — 30 466 CRIMINAL PROCEDURE. § 416 term of imprisonment and labor than arson committed in the night-time, this provision is directory only, and does not require the indictment or information to allege whether the crime was committed in the daytime or the night-time.* Where crime of higher grade, and punishment more severe, where the burning is in the night-time than where it occurs in the daytime, the time of the commis- sion of the offense must be laid in the indictment or in- formation,'' or the lower grade of the offense, only, will be charged.* § 416. Averment of degree. The general rule of criminal pleading being that an indictment or informa- tion drawn substantially in the language of the statute, setting out all the acts or facts used by the legislature in defining the particular offense charged, is sufficient,^ except it be as to those eases where particular circum- stances are necessary to constitute a complete offense, in i BrigMwell v. State, 41 Ga. 482. specified degree, and § 4 providing Alleging time where not re- tliat wlioever burns a warehouse quired, as where the particular other than as mentioned in § 2 arson is equally punishable shall suffer a lesser degree of whether committed in the daytime punishment, an indictment charg- er the night-time, the allegation ing that accused "in the night- as to time will be regarded as sur- time" burned a warehouse, with- plusage. — Com. v. Lamb, 67 Mass. out designating its value, charged (1 Gray) 493. See, supra, § 413. the lesser grade of the crime pro- 5 Dick V. State, 53 Miss. 384; vided for in § 4.— Com. v. Uhrig, State V. England, 78 N. C. 552; 167 Mass. 420, 45 N. B. 1047. In re Curran, 7 Gratt. (Va.) 619. i See, supra, §§ 269 et seq. 6 Under Virginia statute (Gen. See: ALA. — ^Lodano v. State, 25 Stats. 1850), it was held that to Ala. 64. ARK.— Shortwell v. State, convict of a burning in the night- 43 Ark. 349. CAL. — -People v. time the indictment must charge Shaber, 32 Cal. 36; People v. Mar- the burning in the night.— In re tin, 32 Cal. 91; People v. White, Curran, 7 Gratt. (Va.) 619. 34 Cal. 183; People v. Cronin, 34 Under Massachusetts statute, Cal. 191; People v. Girr, 53 Cal. Pub. Stats., ch. 203, § 2, provid- 629; People v. Lewis, 61 Cal. 366; Ing that whoever shall, in the People v. Soto, 63 Cal. 165 ; People night-time, burn a warehouse v. Bums, 63 Cal. 615; People v. worth $1000 shall be punished in a Turner, 65 Cal. 541, 4 Pac. 553; §416 ARSON. 467 which case those circumstances must be alleged;* hence an indictment or information charging arson in the lan- guage of the statute is sufficient;^ it need not state the degree,* for that is a matter for the jury to determine from all the facts and circumstances developed in the evidence.^ Degrees of arson defined by the statute, and different punishment assigned according to the degree as thus defined, an indictment or information should set out the degree, or state the facts and circumstances necessary to bring the offense charged within the particular degree; but where the indictment or information is for a lesser degree of the offense it need not allege that the facts of the degree alleged are not embraced in the other de- grees of the crime of arson, or within the other sections People V. Murray, 67 Cal. 103, 7 Pac. 178; People v. Sheldon, 68 Cal. 434, 9 Pac. 457; People v. Russell, 81 Cal. 616, 23 Pac. 418; People V. Saverpool, 81 Cal. 650, 22 Pac. 856; People v. Miles, 9 Cal. App. 317, 101 Pac. 527. IDA.— People V. Butler, 1 Ida. 234, KAN.— State V. White, 44 Kan. 514, 25 Pac. 33. MINN.— State v. Golden, 86 Minn. 209, 90 N. W. 400. MONT.— State V. Williams, 9 Mont. 179, 23 Pac. 335. UTAH — People v. Colton, 2 Utah 457; United States V. Cannon, 4 Utah 122, 7 Pac. 369; State V. Fairbanks, 7 Utah 3, 24 Pac. 583; State v. McDonald, 14 Utah 173, 46 Pac. 872; State v. Williamson, 22 Utah 248, 255, 62 Pac. 1022. WASH. — Stat© v. Hal- bert, 14 Wash. 306, 44 Pac. 538. FED. — United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819; United States V. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538. 2Barfield v. State, 14 Ala. 603; People V. Purley, 2 Cal. 564; People V. Ward, 110 Cal. 369, 42 Pac. 894; Collins v. State, 25 Tex. Supp. 202; Newell v. Com., 2 Wash. (Va.) 88. Compare: People v. Markham, 64 Cal. 157, 49 Am. Rep. 700. 3 See Cheatham v. State, 59 Ala. 40; Sands v. State, 80 Ala. 201; Leonard v. State, 96 Ala. 108, 11 So. 307; People v. Russell, 81 Cal. 616, 23 Pac. 418; People v. De Winton, 113 Cal. 403, 54 Am. St. Rep. 360, 33 L. R. A. 374, 45 Pac. 708 ; State v. Rathbone, 8 Ida. 167, 67 Pac. 187; State v. Keller, 8 Ida. 709, 70 Pac. 1054. * Degree stated where not re- quired may be treated as surplus- age.— People V. King, 27 Cal. 507, 87 Am. Dec. 95; State v. Noah, 20 N. D. 292, 124 N. W. 1126. 5 People V. King, 27 Cal. 507, 87 Am. Dec. 95; People v. Nichol, 34 Cal. 211; People v. Russell, 81 Cal. 616, 23 Pac. 418. 468 CRIMINAL PBOCEDUEE. §§ 417, 418 of tlie statute, where the higher degrees are provided for in separate sections.* § 417. Unnecessary averments. We have already seen that in an indictment or information charging arson it is not necessary to aver that the burning was not with the consent of the owner :^ also that averment as to the time of the commission of the offense is unnecessary, in the absence of a statute requiring it;^ and also that the degree of the arson need not be averred, where the statute divides the offense into degrees, the indictment or information being otherwise sufficient.* It need not be averred that the offense was committed vi et armis;'' and where the ownership of the property burned is laid in a corporation, naming it, there need be no averment as to its incorporation f neither is it necessary to aver or prove that the insurer was a corporation,* or that it was authorized to do business in the state.'' § 418. Intent and malice. Whether there should be a distinct averment of intent to burn, and of malice, in an indictment or information charging arson, depends upon the wording of the particular statute under which drawn. Thus, it has been held that under the statute in Maine,^ 6 GA. — Hester v. State, 17 Ga. 2 See, supra, § 415. 130. LA.— State v. Gregory, 33 3 See, supra, § 416. La. Ann. 737. MASS.— Com. v. 4 State v. Temple, 12 Me. 214. Squire, 42 Mass. (1 Met.) 258. 5 Such fact will be presumed MINN. — State v. Roth, 117 Minn, when the name Imports a corpor- 404, 136 N. W. 12. N. Y. — People ation. — State v._ Donovan, (Del.) V. Haynes, 55 Barb. 450, 38 95 Atl. 1041. How. Pr. 369; People v. Pierce, « State v. Steinkraus, 244 Mo. 11 Hun 633; People v. Durkin, 5 152, 148 S. W. 877. Parker Or. Rep. 243. VT.— State 7 Parb v. State, 143 Wis. 561, 128 V. Ambler, 56 Vt. 672. WIS.— Lacy N. W. 65. V. State, 15 Wis. 13; State v. i State v. Hill, 55 Me. 365; State Kroscher, 24 Wis. 64. v. Watson, 63 Me. 135; State v. 1 See, supra, § 411, footnote 5. Bean, 77 Me. 487. §419 AESON. 469 New Tork,^ North Carolina* and Texas/ an intent to burn need not be alleged, because that fact will be pre- sumed ; on the other hand, it has been held that such aver- ment is necessary in Arkansas,^ California,^ Maryland/ Mississippi^ and Missouri,^ and perhaps elsewhere. § 419. Sufficiency of avekment. At common law the indictment must aver the offense to have been committed wilfully and maliciously as well as feloni- ously/ the word "unlawfully" can not be substituted for "maliciously" / and it has been held that unless the burn- ing is alleged to have been maliciously done a motion to quash will lie,* though some of the cases are to the effect that an averment that the accused "wilfully and feloniously" set fire to, is equivalent to an averment that the act was done "wilfully, maliciously, and unlawfully."* 2 People V. Fanshowe, 137 N. Y. 68, 32 N. B. 1102, 10 N. Y. Cr. Rep. 291, affirming 65 Hun (N. Y.) 77, 8 N. Y. Cr. Rep. 326, 19 N. Y. Supp. 865. 3 State V. Thompson, 94 N. C. 496. 4 Thomas v. State, 41 Tex. 27; Tuller V. State, 8 Tex. App. 506. 5 Public building burned, there must be an averment of felonious intent.— Mott v. State, 29 Ark. 147. 6 "Intent to destroy" must be averred or no crime is charged un- der Kerr's Cyc. Pen. Code, § 447. — People V. Mooney, 127 Cal. 339, 59 Pac. 761, 132 Cal. 13, 63 Pac. 1070. See, People v. Jones, 123 Cal. 65, 55 Pac. 698. People V. Mooney, supra, cited and principle applied in Newby v. State, 75 Neb. 36, 105 N. W. 1100. TKellenbeck v. State, 10 Md. 413, 69 Am. Dec. 166. 8 Jesse v. State, 28 Miss. 100; Maxwell v. State, 68 Miss. 339, 8 So. 546. 9 State V. McCoy, 162 Mo. 383, 62 S. W. 991. 1 2 East's Grim. Law, ch. 21, §11; 3 Chit. Crim. 1107; 1 Hale P. C. 567, ch. 49; State v. Gaffrey, 3 Pinn. (Wis.) 369, 4 Chand. 165. In an information charging ar- son In the third degree, it need not be alleged the burning was njaliciously done, where it is charged that it was wilfully, wrongfully, unlawfully, and feloni- ously done. — State v. Ross, 77 Kan. 341, 94 Pac. 270. 2 "Feloniously, wilfully, and un- lawfully" done, held insufficient in Kellenbeck v. State, 10 Md. 431, 69 Am. Dec. 166. 3 Jesse V. State, 28 Miss. 100; Maxwell v. State, 68 Miss. 339, 8 So. 546. 4 See, Young v. Com., 75 Ky. (12 Bush) 243; State v. McCoy, 162 Mo. 383, 62 S. W. 991. 470 criminaij proceduee. § 420 Every intent an element of arson under the statute, must be alleged,^ and for that reason an allegation of in- tent to destroy the building is necessary under the statute of California*' and statutes similarly worded.'^ It has been said that an allegation that a burning was "wilfully and maliciously" done is sufficient without an averment that the act was done with "malice aforethought";* and that a charge that the act was "unlawfully, maliciously, and feloniously" done, is sufficient, because this is equiva- lent to a charge that it was "wilfully" done.* Statute in disjunctive, "wilfully or maliciously" bum, indictment or information in the conjunctive, "wilfully and maliciously" burn, is sufficient.^" ' § 420. Intent to in jl^ke or DEFEAtrn. At com- mon law, or under a statute making wilful burning arson, the indictment or information need not allege intent ;^ but under many of the state statutes it is held that there must be an allegation of intent to injure by the setting fire to and burning,^ although some cases hold that there need not be an intent to injure a particular person.' B People V. Mooney, 127 Cal. 339, Chapman v. Com., 5 Whart. (Pa.) 59 Pac. 761, 132 Cal. 13, 63 Pac. 427. 1070. See, People v. Jones, 123 lo State v. Price, 37 La. Ann. Cal. 65, 55 Pac. 198. 215, 6 Am. Cr. Rep. 33. 6 Kerr's Cyc. Pen. Code, § 447. Criminal to burn wilfully or ma- liciously, it intensifies the crim- 7 See, supra, § 418, footnote 6. j^^j.^y ^^ ^^^^ .^ ^.j^^^jy ^^^ ^^ Under IMissouri statute, it is lidously.-State v. Banton, 4 La. enough to aUege that he set fire ^^^ 3^. g^^,.^ ^ p^.^^ ^^ ^ to the huilding, without averring ^^^ 3^5^ g ^^ ^_._ ^^^ 33 that the acts were committed with ^^^^^^ ^^^^^ ^^^^ ^^^^ the intent to hum and consume or g ^^^g^ g^^ g^^^^ ^ Thompson, that the huilding was hurned or g^ j^ ^ ^gg^ ^ g ^ ^^^. g^.^^^^ ^ consumed.-State v. McCoy, 162 jieCarter, 98 N. C. 637, 4 S. E. Mo. 383, 62 S. W. 991. 553 8 State V. Price, 37 La. Ann. 215, 2 State v. England, 78 N. C. 552; 6 Am. Cr. Rep. 33. State v. Porter, 90 N. C. 719; State 9 People V. Haynes, 55 Barb. v. Phifer, 90 N. C. 721. (N. Y.) 450, 38 How. Pr. 369; s State v. Rogers, 94 N. C. 860. §420 ARSON. 471 Burning insured property with intent to defraud the insurer being made punishable by statute, an indictment or information charging that offense must aver that the building was insured against loss by fire,* and that ac- cused set the fire with intent to injure the insurer f and where the insurer is a person or an unincorporated com- pany, there must be an averment of an intent to injure the members of the company, naming them,® and if a corporation, the corporate name in full should be alleged'' and the fact of incorporation averred;* but such indict- ment or information need not set forth the name of the owner,® or who was the beneficiary of the insurance,*" and need not state the facts constituting the intended 4 statute not requiring building be insured against fire, this aver- ment is not necessary. — Renaker V. Com., 172 Ky. 714, 189 S. W. 928. 5 CALi. — People v. Hughes, 29 Cal. 258; People v. Schwartz, 32 Cal. 160. ILL. — Staaden v. People, 82 111. 432, 25 Am. Rep. 333; Mai V. People, 224 111. 414, 79 N. E. 633. MASS. — Com. v. Goldstein, 114 Mass. 272; Com. v. Asherow- ski, 196 Mass. 342, 82 N. E. 13. N. Y. — People v. Henderson, 1 Park. Cr. Rep. 560. OHIO— Evans V. State, 24 Ohio St. 458. CAN.— Queen v. Bryans, 12 U. C. C. P. 161. 6 People V. Schwartz, 32 Cal. 160. ILL.— Wallace v. People, 63 111. 451; Staaden v. People, 82 111. 432, 25 Am. Rep. 333. 7 White V. State, 24 Cal. App. 231, 5 Am. St. Rep. 789, 5 S. W. 857. 8 People V. Schwartz, 32 Cal. 160; Wallace v. People, 63 111. 451; Staaden v. People, 82 111. 432, 25 Am. Dec. 333; Burke v. State, 34 Ohio St. 81; Cohen v. People, 5 Park. Cr. Rep. 330; White v. State, 24 Tex. App. 231, 5 Am. St. Rep. 880, 5 S. W. 857; State v. Mead, 27 Vt. 722. Compare: Supra, § 417, footnote 6. Mere averment of company name amounts, in a legal sense, of entire absence of any averment of party intended to he Injured. — People V. Schwartz, 32 Cal. 160. Compare: People v. Mead, 200 N. Y. 16, 140 Am. St Rep. 616, 25 N. Y. Cr. Rep. 179, 92 N. B. 1051. De facto existence sufficient, and all that is required to be proved. See: People v. Frank, 28 Cal. 507; People V. Hughes, 29 Cal. 258; People V. Schwartz, 32 Cal. 160; Oakland Gas Light Co. v. Dam- eron, 67 Cal. 663, 8 Pac. 595; Peo- ple v. Leonard, 106 Cal. 302, 39 Pac. 617; State v. Grant, 104 N. C. 908, 10 S. B. 554; State v. Savage, 36 Ore. 212, 60 Pac. 610, 61 Pac. 1128; State v. Stevens, 16 S. D. 313, 92 N. W. 421. 9 People V. Barbera, 29 Cal. App. 604, 157 Pac. 532. 10 Id. 472 CRIMINAL PEOCEDXmE. §421 fraud upon the insurer, the particular circumstances con- necting the accused with the offense charged," or by whom or by what authority the house was insured,^^ and the policy need not be set forth according to its terms.^^ § 421. Description of building. An indictment at com- mon law was not required to aver that the house burned was a "dwelling-house,"^ because the word "house," in an indictment charging arson, imports a dwelling-house.^ Where, however, the statute uses the word "dwelling- house," the indictment or information must allege the house burned to have been a "dwelling-house";^ but an 11 People V. Truax, 30 Cal. App. 471, 158 Pac. 510. 12 Arnold v. State, 74 Tex. Cr. Rep. 269, 168 S. W. 122. 13 Com. V. Goldstein, 114 Mass. 272. 1 1 Hale P. C. 567; 2 East P. C. 1033; KY.— Com. v. Elliston, 14 Ky. L. Rep. 216, 20 S. W. 214. MASS. — Com. V. Smith, 151 Mass. 491, 24 N. E. 677. N. C— State v. Thome, 81 N. C. 413. S. C— State V. Sutcliffe, 4 Strobh. 372, 399. VA.— Com. V. Posey, 4 Call 109, 2 Am. Dec. 560. ENG.— Sarman v. Darley, 14 Mees. & W. 181. A cottage, however mean and wretched, is a house within the meaning of the statute punishing arson, when used as a habita- tion. — R. V. England, 1 Car. & K. 533, 47 Eng. C. L. 532. A building for workmen to take their meals and dry their clothes in, however, is not a "house" within the statute, even though a person may sleep therein with the knowledge of the owner, but without his consent. — Ibid. 2 Com. V. Posey, 4 Call (Va.) 109, 2 Am. Dec. 560. "House" not necessarily habita- tion for man or beast, under many of the statutes. See: Ford v. State, 112 Ind. 373, 14 N. E. 241; Daniel v. Coulsting, 7 Man. & G. 125, 49 Eng. C. L. 123. 3 Com. V. Smith, 151 Mass. 491, 24 N. E. 677; State v. Whitmore, 147 Mo. 78, 47 S. W. 1068; State V. Sutcliffe, 4 Strobh. (S. C.) 372. "A~ billiard-saloon; said store or saloon being . . . within the cur- tilage of a dwelling-house bar," suffl-ciently ' describes the burning of a dwelling, and defendant could not be misled. — Morrill v. People, 7 Albany L. J. 171. See Shepherd V. People, 19 N. Y. 542. English construction the same. See 1 Moak's Eng. Rep., 344, 394. "A Qertain building, to-wit, a house," does not describe a dwell- ing-house. — Com. V. Smith, 151 Mass. 491, 24 N. E. 677. Addition of the word "tenement" after "house" is immaterial, the words being synonymous, and even if it means more, the indict- ment will still be good for burn- ing a house. — State v. Snellgrove, 71 Ark. 101, 71 S. W. 266. "Building erected for a dwell- ing-house, and not completed or §421 ARSON. 473 allegation tliat the accused set fire to or burned a house "used as a dwelling-house," sufficiently describes the character of the house as a dwelling-house.* Where by statute^ it is arson to wilfully burn "a build- ing" to destroy it, the indictment or information need not describe the building burned,* an allegation that it was in a designated city being a sufficient description;'^ and when the charge is of burning an "out-building," it seems that it need not be alleged whether the building was located in a city, town, or village.^ Designation by name of the building, if it has a spe- cific name,^ or charging its particular use," is not re- quired in an indictment charging arson; it is enough to charge the burning of "a certain building. "^^ Two tenements in same building, owned and occupied separately, with no interior communication, an indict- ment charging arson should describe the tenements as two inhabited," sufficient description under Massachusetts statute. — Com. V. Squire, 42 Mass. (1 Mete.) 258. Usually occupied by persons to lodge in at night, was held to be a sufficient description in People V. Orcutt, 1 Park. Cr. Rep. 252. i McLean t. State, 4 Ga. 335. Cliarging burning of out-house and corn-crib equivalent to an averment that the building was not a dwelling-house. — Hester v. State, 17 Ga. 130. As Kerr's Cyc. Pen. Code of California, § 447. Abandoned dwelling-house, suf- ficiency of indictment for burning; under Mississippi Code 1906, § 1040.— Banks v. State, 93 Miss. 700, 47 So. 437. 6 People V. Gracamella, 71 Cal. 48, 12 Pac. 302; People v. Russell, 81 Cal. 616, 23 Pac. 418. TAyres V. State, 115 Tenn. 772, 91 S. W. 195. 8 Carter v. State, 106 Ga. 372, 71 Am. St. Rep. 262, 32 S. B. 345. Whether it be in a city, town, or village does not affect the legal character of the offense, but the punishment only. — Smith v. State, 64 Ga. 605. A building is sufficiently de- scribed where alleged to be situ- ate in a named city. — Ayres v. State, 115 Tenn. 722, 91 S. W. 195. 9 People v. Covitz, 262 111. 514, 104 N. E. 887. "A business house used and oc- cupied as a meat-market" is a suf- ficient description. — Goff v. State, 60 Fla. 17, 53 So. 327. 10 People V. Covitz, 262 111. 514, 104 N. B. 887. 11 People V. Covitz, 262 111. 514, 104 N. E. 887. 474 CRIMINAL PROCEDUEE. § 421 distinct houses;*^ and where the building burned is a "lodging-house" it is to be described as the house of the lodging-house keeper.** Sufficiency of description under statute, in an aver- ment of burning, to allege the building to be a "barn" ;** ' ' a certain guard- and jail-house " of a named village, the property of that village ;*^ a " corn-pen containing corn, ' ' where the statutory expression is "corn-crib containing corn";*® "flouring, grist and corn mill-house," suffi- ciently alleges the burning of a building;*'^ "fodder- house" is a sufficient description under a statute pun- ishing wilful and malicious burning of a house, building or building material;*® "house or building" is sufficient where those words are evidently used as synonynas;*® "house used as a shop," is sufficient, as it charges the setting fire to a "shop" under the statute;^" "large parts" of court house, sufficiently describes offense;^* "meeting-house" is sufficient without averment that the same was then used as a place of public worship ;22 ^ "mill-house " ;23 a " school-house, ' ' without alleging that it was erected for public use;^* a "stable," sufficient to 12 state V. Toole, 29 Com. 342, 17 Jordan v. State, 142 Ind. 422, 76 Am. Dec. 602. 41 N. B. 817. 13 See, Infra, § 425, footnote 6. ig state v. Jeter, 47 S. C. 2, 24 14 State V. Emerson, 53 N. H. g. e. 889. ^^^- 19 State V. Moore, 61 Mo. 276. "A barn or stable," or "a barn, house, or stable." fatally defec- ^' ^tat^ v- *^°^S^**' ^^ N. C. 641, tlve.— Horton v. State, 60 Ala. 72. ^ ^- ^- ^^^• Should be conjunctive, not dis- ^* I^°^e"e ^- State, 136 Ind. 233, junctive. See, supra, § 278. ^6 N. E. 135. 15 Howard v. State, 109 Ga. 137, ^2 State v. Temple, 12 Me. 214. 34 S. E. 330. ** *° indictment for burning 16 Cook V. State, 83 Ala. 62, 3 house of public worship; see State Am. St. Rep. 688, 3 So. 849. v. Hunt, 190 Mo. 353, 88 S. W. 719. Allegation contained corn at 23 Ford v. State, 42 Ind. 373, 14 time, not necessary. — Savage v. N. E. 241. State, 8 Ala. App. 334, 63 So. 999, 24 State v. Bedell, 65 Vt. 541, 1006. 27 Atl. 208. § 422 ARSON. 475 describe use of building j^^ a "sugar-bouse," is good vsdtb- out averment that the building is not a dwelling-house.^' On the other hand, it has been held to be an insuffi- cient description of the building to allege the burning of "a building called a 'saloon,' " because of the fact that such allegation does not show the purpose for which the building was used;^'' the word "jail" is insufficient, with- out an averment that it is a dwelling-house, and fatally defective, under the Missouri statute in the case of a charge of first degree arson ;^^ a "merry-go-round" charged to have been wilfully burned, the indictment will be insufficient to charge a crinoje under the Louisiana statute unless it contains averment that the outfit formed a part of a stock of goods, or that it was held as an article of trade ;^' and an allegation of the burning of "a saw-mill," has been held to be insufficient, for the reason that a saw-mill is not necessarily a building, and for that reason the indictment is not sufficient under a statute pro- hibiting the burning of "any building" other than a dwelling-house, in the absence of a distinct averment that the saw-mill was a building.^" § 422. Averments to show ventje. The crime of arson being one that is local in its nature, the indictment or information must contain an allegation as to the local- ity of the property burned, and must be reasonably cer- tain,^ and sufficient to show that the building was within the jurisdiction of the court.^ An allegation in the indict- 25 Dugle V. state, 100 Ind. 259. i State v. Gaffrey, 3 Plnn. 26 State V. Ambler, 56 Vt. 672. (Wis.) 369, 4 Chand. 165. 27 State V. O'Connell, 26 Ind. A description tiiat tlie building 266. was "a certain bam of one J., 28 State V. Whltmore, 147 Mo. there situate," is insufficient as 78, 47 S. W. 1068. being too indefinite. — Gibson v. 29 State V. Fontenot, 112 La. State, 54 Md. 447. 628, 36 So. 630. 2 Duncan v. State, 29 Fla. 439; 30 State V. Livermore, 44 N. H. Com. v. Barney, 64 Mass. (10 386. Gush.) 478; Com. v. Lamb, 67 476 CRIMINAL PROCEDUEE. §423 ment or information that the defendant was within the county on a date named, and "then and there "^ set fire to and burned a certain building, is a sufficient allega- tion that the situs of the building burned was within the county;* but it has been said that a description in the indictment or information of the building burned as "there situate,"^ is insufficient, because of indefinite- ness.^ — AvBEMEisTTS AS TO LOCATiosT. An indictment §423. - or information charging arson, aside from the averments as to location within the county, as specified in the last section, need contain no averments or allegations as to , Mass. (1 Gray) 493; State v. Meyers, 9 Wash. 8, 36 Pac. 1051. An Indictment which, charges that the defendant at the time named, being in the county, then and there feloniously burned the dwelling-house of one T. J. K., sufficiently shows the offense was committed within the jurisdiction of the court. — People v. Wooley, 44 Cal. 494. Where the building was de- scribed as being in the sixth ward of New York, whereas it was in the fifth, the accused could not be convicted thereunder. — People v. Slater, 5 Hill (N. Y.) 401. 3 "Then and there situate" es- ' sentlal in an indictment in order to show that the building burned was in the county. — State v. Gaf- frey, 3 Finn. (Wis.) 369, 4 Chand. 163. A description as "a certain dwelling-house situated in the city of St. Louis aforesaid" is insuffi- cient as being too indefinite. — State V. Wacker, 16 Mo. App. 417. An information stating that the prosecuting attorney for a certain county in the state informed the court that the accused did "then and there," etc., was sufficient without repeating the name of the state. — State v. Hunt, 190 Mo. 353. 88 S. W. 719. Where it was alleged that the defendant In a certain county and state "then and there being, did then and there unlawfully, wil- fully, and feloniously set fire to and burn a certain barn building," there is a sufficient allegation that the barn was in the named county. — State V. McLain, 43 Wash. 267, 10 Ann. Cas. 321, 86 Pac. 390. The locus quo is sufficiently al- leged as "a certain house then and there occupied, owned, and con- trolled by him, the said Baker." — Baker v. State, 25 Tex. App. 1, 8 Am. St. Rep. 427, 8 S. W. 23. 4 People V. Wooley, 44 Cal. 494 ; Com. V. Lamb, 67 Mass. (1 Gray) 493; State v. Meyers, 9 Wash. 8, 36 Pac. 1051; State v. McLain, 43 Wash. 267, 10 Ann. Cas. 321, 86 Pac. 390. B The words "there situate" are material. — State v. Gaffrey, 3 Pinn. (Wis.) 369, 4 Chand. 165. 6 Gibson V. State, 54 Md. 447. § 424 ABSON. 477 the location of tlie property; need not state whether within or without any city, town or village/ because such fact merely affects the punishment;^ need not allege the building burned was or was not within the curtilage,^ the fact of its being within the curtilage being of importance when the burning is in the night-time, only.* As to whether there must be an allegation that the burned building formed a part of the dwelling-house depends upon the wording of the statute.^ § 424. Averments as to valtte. In the absence of any provision in the statute making such averment nec- essary, an indictment or information charging arson need not allege the value of the property or building burned,'^ and no averment is required as to the value of the prop- erty destroyed in the building burned;^ where, the punishment is regulated by the value of the property burned, the indictment must allege the value,* but may charge the value of the building and of the contents burned as a whole, and need not specify each separately.* 1 See, supra, § 421, footnote 8. building burned not parcel of any 2 Smith. V. State, 64 Ga. 605. dwelling held bad) ; Staeger v. 3 State V. Taylor, 45 Me. 322; Com., 103 Pa. St. 469 (averment Com. V. Hamilton, 81 Mass. (15 not parcel of dwelling-house not Gray) 480; People v. Pierce, 11 necessary). Hun (N. Y.) 633; State v. Gwinn, i State v. Temple, 12 Me. 214; ' 24 S. C. 146; State v. Moore, 24 Com. v. Hamilton, 81 Mass. (15 ' S. C. 150, 58 Am. Rep. 241. Gray) 833; Ayres v. State, 115- Contra: State v. Jeter, 47 S. C. Tenn. 722, 91 S. W. 195; Wolf v. 2, 24 S. E. 889. Com., 30 Gratt. (Va.) 833. Within the curtilage of the 2 Wolf v. Com., 30 Gratt. (Va.) dwelling-house being averred, it 833. need not be averred that the 3 Brown v. State, 52 Ala. 345; dwelling-house was at that place. Clark v. People, 2 111. (1 Scam.) —Com. V. Barney, 64 Mass. (10 117; Ritchie v. State, 7 Blackf. Cush.) 480. (Ind.) 168; Com. v. Hamilton, 81 4 State V. Taylor, 45 Me. 322. Mass. (15 Gray) 480. 5 See Gibson v. State, 54 Md. 4 State v. Huffman, 69 W. Va. 447 (indictment not alleging 770, 73 S. E. 292. 478 CRIMINAL PEOCEDUEE. §425 § 425. OwNBBSHiP — Necessity op averment as to. At common law an indictment or information must allege the ownership of the property, and the' same rule pre- vails under the codes and statutes of the various states/ inasmuch as the ownership is made part of the descrip- tion of the offense,^ arson being the malicious firing of 1 ALA. — Martha v. State, 26 Ala. 72; Martin v. State, 28 Ala. 71; Graham v. State, 40 Ala. 659; Davis V. State, 52 Ala. 357; Smoke V. State, 87 Ala. 143, 6 So. 376; Williams t. State, 177 Ala. 34, 58 So. 921. ARK.— Mott v. State, 29 Ark. 147. CAL. — People v. Myers, 20 Cal. 76; People v. Hodley, 100 Gal. 370, 34 Pac. 853; People v. DeWinton, 113 Cal. 403, 54 Am. St. Rep. 357, 33 L. R. A. 374, 45 Pac. 708. CONN.— State v. Lyon, 12 Conn. 487; State v. Keena, 63 Conn. 329, 28 Atl. 522. IND.— Gar- rett V. State, 109 Ind. 527, 10 N. E. 570; Kruger v. State, 135 Ind. 573, 35 N. E. 1019. MASS.— Com. v. Mahar, 53 Mass. (16 Pick.) 120; Com. V. Wade, 34 Mass. (17 Pick.) 395. MISS. — Morris v. State, (Miss.) 8 So. 295; Avant v. State, 71 Miss. 78, 13 So. 881. MO.— State V. Whitmore, 147 Mo. 78, 47 S. W. 1068. NEB.— Burger v. State, 34 Neb. 397, 51 N. W. 1027. N. Y. — People v. Gates, 15 Wend. 159; McGarry v. People, 45 N. Y. 153, reversing 2 Lans. 227. ORE. — State V. Moyer, 76 Ore. 396, 149 Pac. 84. TEX. — Fuller v. State, 8 Tex. App. 501. WIS.— Carter v. State, 20 Wis'. 646. ENG. — Rex v. Rickman, 2 East P. C. 1034. Averment that it was the prop- erty of a named person is suffi- cient. — Goff V. State, 60 Fla. 13, 17, 53 So. 327. Ownership of the chicken-house as well as of the land was suffi- ciently set out in State v. Thurs-' ton, 77 Kan. 522, 94 Pac. 1011. Ownership to be proved relates to the actual occupancy, and not to the nature of the estate or claim of the occupant.- — Johnson v. State, 1 Ala. App. 148, 55 So. 268. 2 People V. Myers, 20 Cal. 76; People V. DeWinton, 113 Cal. 403, 54 Am. St. Rep. 357, 33 L. R. A. 374, 45 Pac. 708; State v. Bradley, 1 Houston C. C. (Del.) 164; People v. Gates, 15 Wend. (N. Y.) 159; McGarry v. People, 45 N. Y. 153, reversing 2 Lans. 237; State v. Moyer, 76 Ore. 396, 149 Pac. 84. Offense to burn own house con- taining property of another being made an offense by statute, indict- ment or information must allege ownership of the house to be in accused, and that the house con- tained property belonging to an- other person. — Tuller v. State, 8 Tex. App. 501. Tenancy must be alleged in an indictment under the Texas Crim- inal Code alleging the burning of leased premises by a tenant thereof. — Mulligan v. State, 25 Tex. App. 199, 8 Am. St Rep. 435, 7 S. W. 664. § 425 ARSON. 479 the house of another,' or own house in the possession and occupancy of another.* Charging burning to defraud insurer it is not neces- sary to allege the ownership of the building, but the property must be so definitely described that it can be identified.® Lodging-house averred as the subject of the burning the ownership should be laid in the lodging-house keeper." Under Missouri statute an indictment for arson in the second degree is not required to allege the ownership of the building, the manifest purpose of the statute being the protection of human life rather than the protection of the property.'' Effect of failure to allege ownership of building burned is to render the indictment or information fatally defec- tive,® can not be amended,* and may be taken advantage of by motion in arrest of judgment.^" 3 Mary v. State, 24 Ark. 44, 81 4 People v. Fong Hong, 120 Cal. Am. Dec. 60; People v. De Winton, 686, 53 Pac. 265; TuUer v. State, 113 Cal. 403, 54 Am. St. Rep. 357, g Tex. App. 501; Com. v. Ersklne, 33 U R. A. 374, 45 Pac. 708; State g (jratt. (Va.) 627. V. Toole, 29 Com. 342, 76 Am. Dec. „ . cno. n„™„+* ^ c+o*-, mo T.,/1 co-? B United States T. McBride, 7 602; Garrett v. State, 109 Ind. 527, v /• ri \ a i 10 N. E. 570; People v. Gates, 15 ^'^'^^- ^°- ^■' ^^'^• Wend. (N. Y.) 159; People v. Hen- estate v. Toole, 29 Conn. 342, derson, 1 Park. Cr. Rep. (N. Y.) 76 Am. Dec. 602. 560; state v. Sarvis, 45 S. C. 668, 7 State v. Myer, 259 Mo. 306, 168 55 Am. St. Rep. 846, 32 L. R. A. g. w. 717. 647, 24 S. E. 53; Roberts v. State, 47 Tenn. (7 Coldw.) 359; Mulligan 8 Martin v. State, 28 Ala. 71; „„ „ People V. Myers, 20 Cal. 76. V. State, 25 Tex. App. 199, 8 Am. . . j. i„ ^ i,- t, , ^v „^ ... An indictment which leaves the St. Rep. 435, 7 S. W. 664. question of ownership to rest upon Under statute the rule may he . . ^ • ^ , „ „^ ^ T, ,_« , , ^ conjecture or argument is demur- different. See State v. Rohfrischt, rable.-People v. Myers, 20 Cal. 76. 12 La. Ann. 382; State v. Elder, 21 La. Ann. 157; State v. Cohn, 9 estate v. Moyer, 76 Ore. 396, Nev. 179; State v. Hurd, 51 N. H. 1*^ P^^'- ^*- 176; Shepherd v. People, 19 N. Y. 10 Martin v. State, 28 Ala. 71; 537; Hennessey V. People, 21 How. State v. Keena, 63 Conn. 329, 28 Pr. (N. Y.) 239. Atl. 522. 480 CRIMINAL PEOCEDUEE. §426 § 426. StTFFiciENOT Of AVERMENT AS TO. Owner- ship of the building burned may be laid in one to whom a deed has been executed to indemnify him as surety on grantor's appearance bond;^ in one holding the property in trust,^ even though the accused had a contingent inter- est therein and was in the actual occupancy of the build- ing;^ in the owner of the fee* or, under statute,^ in the 1 Kinsey v. State, 12 Ga. App. 422, 77 S. B. 369. 3 Ownership may be laid in the hoider of the legal title, although he may not be in possession. — Hutchinson t. State, 28 Ohio Cir. Ct. Rep. 595. Trustee of property held In trust may be laid as the owner, although accused had contingent interest therein. — Llpschitz v. People, 25 Colo. 261, 53 Pac. 1111. 3 Lipschitz T. People, 25 Colo. 261, 53 Pac. 1111. 4 Harvey v. State, 67 Ga. 639; Overstreet v. Com., 147 Ky. 471, 144 S. W. 751; Avant v. State, 71 Miss. 78, 13 So. 881; State v. Car- ter, 49 S. C. 265, 27 S. E. 106. "Barn of one Laura Wolf," charged to have been burned, suf- ficiently alleges possession by her in her own right. — ^Wolf v. State, 53 Ind. 30. Belonging to A & B, a partner- ship composed of A and B, sufficiently describes the owner- ship where A purchased the house burned and deeded an undivided half Interest therein to B, his partner. — People v. Greening, 102 Cal. 381, 36 Pac. 665. House "of" a named person charged to have been burned Is sufficient allegation that It was the property of that person. — Jordan V. State, 142 Ind. 422, 41 N. E. 817. Occupancy in accused ownership may be alleged in the owner of the fee.— Gutgesell v. State, (Tex. Cr.) 43 S. W. 1016. "Owned by A" sufficient allega- tion of ownership of house burned by setting fire to rags in the cellar of the house, location particularly described; it does not allege own- ership of the rags. — State v. Ten- neborn, 92 Iowa 551, 61 N. W. 193. Tenant on shares using barn on farm merely for purpose of storing crops raised, on charge of arson for burning the barn, property is properly described as belonging to the owner. — People v. Smith, 3 How. Pr. (N. Y.) 226. Title in A subject to dower-rlght of B, the indictment properly de- scribes the property as belonging to A and B. — People v. Eaton, 59 Mich. 559, 26 N. W. 702. Where Indictment charges own- ership in defendant and fails to aver its occupancy in possession by any one, the presumption is that the defendant was in posses- sion. — People v. De Winton, 113 Cal. 403, 54 Am. St. Rep. 357, 33 L. R. A. 374, 45 Pac. 708. Validity of title is not an ele- ment entering into the sufficiency of description of the property as to the ownership thereof. See Tul- ler V. State, 8 Tex. App. 501; Wyley v. State, 34 Tex. Or. Rep. 514, 31 S. W. 393. 5 As under Rev. Code of Del., § 1, p. 933. §426 ARSON. 481 occupant;® and it seems that the ownership may be al- 6 ALA. — Davis v. State, 52 Ala. 357. CAL.— People v. Wooley, 44 Cal. 494; People v. Simpson, 50 Cal. 304; People v. Fisher, 51 Cal. 319; People v. De Winton, 113 Cal. 403, 54 Am. St. Rep. 357, 33 L. R. A. 374, 45 Pac. 708. CONN.— State V. Toole, 29 Conn. 342, 76 Am. Dec 602. DEL. — State v. Bradley, 1 Houston C. C. 164; State V. Barrett, 2 Penn. 297, 47 Atl. 381. ILL.— People v. Spira, 264 111. 243, 106 N. B. 241. IND.— Ritchie v. State, 7 Blackf. 168; Emig V. Damn, 1 Ind. App. 146, 27 N. B. 322. KY.— Young v. Com., 75 Ky. (12 Bush) 243. MICH.— People V. Fairchild, 48 Mich. 31, 11 N. W. 773. MO.— State v. Whit- more, 147 Mo. 78, 47 N. W. 1068; State V. Wacker, 16 Mo. App. 417. NEB. — Burger v. State, 34 Neh. 397, 51 N. W. 1027. N. J.— State V. Fish, 27 N. J. L. (3 Dutch.) 323. N. Y. — People v. Gates, 15 Wend. 159; Woodford v. People, 62 N. Y. 117, 20 Am. Rep. 464. N. C— State V. Graham, 121 N. C. 623, 28 S. E. 409. S. C. — State v. Carter, 49 S. C. 265, 27 S. B. 106. TEX.— Tul- ler V. State, 8 Tex. App. 501. VT.— State T. Roe, 12 Vt. 93; State v. Hannett, 54 Vt. 83. WIS.— Kop- cyzEski V. State, 137 Wis. 358, 16 Ann. Cas. 864, 118 N. W. 863. ENG. — Reg. V. Kimhrey, 6 Cox C. C. 464. An allegation that the building was the property of a certain per- son and occupied by another as tenant is sufficient. — State v. Bar- rett, 2 Penn. (Del.) 297, 47 Atl. 381. . Ownership may be laid in occu- pying tenant having actual posses- sion and exclusive control, under I. Crim. Proo. — 31 contract with co-tenant, though fee in the two jointly. — Adams v. State, 62 Ala. 177. Ownership iaid in servant prop- erly where actual possession and exclusive occupancy in of prem- ises on which situate, is In such servant under contract of hiring. — Davis V. State, 52 Ala. 537. Ownersiiip may be laid in wife of owner where she has posses- sion in his absence, occupies and cultivates the land during her husband's absence, and had con- structed the corn-pen, arson of which is charged. — May v. State, 85 Ala. 14, 5 So. 14. Ownersiiip may be laid in the widow of the deceased owner, occupying and using it since his death, even though there were heirs and dower had not been assigned. — State v. Gailor, 71 N. C. 88, 17 Am. Rep. 3. See State v. Moore, 61 Mo. 276. Part of building occupied by ten- ant, who slept there at night, and balance of building by the land- lord, indictment charging arson was held to properly describe the building as the property of the tenant. — Shepherd v. People, 19 N. Y. 537. Particular facts which make an accused tenant entitled to occu- pancy and possession amenable to prosecution must be alleged. — Mul- ligan V. State, 25 Tex. App. 199, 8 Am. St. Rep. 435, 7 S. W. 664. An averment that the building was "in the possession of and occu- pied by" accused alleges his ten- ancy sufficiently. — Kelley v. State, 44 Tex. Cr. Rep. 187, 62 S. W. 991. Room leased as store in a build- ing, balance of which Is occupied 482 OBIMINAIi PROCEDUEB, §426 leged in the alternative^ It has been said that the prop- erty may properly be described as that of the defendant, although not actually used or occupied by him,* "No. 139 Dolores street, in the City of San Francisco, the property of one Ellen Bolton, and occupied by" the accused, has been said to be a sufficient description of the ownership, as the property is sufficiently identified re- gardless of the name of the owner, because the ownership of the house becomes immaterial as being a necessary part of the description of the crime charged.® "Then and there the property of one A,^'^ and was then and there the dwelling-house of one B," has been held to be a defective allegation, because of the uncertainty as to whether the building burned was the dwelling-house of A or B, and because the indictment could not be made good by the rejection of surplusage." by landlord, the store-room having no connection with the balance of the building, indictment for arson properly describes the store-room as the property of the lessee. — State V. Sandy, 25 N. C. (3 Ired. L.) 570. Where there are separate occu< pations of different portions of the same building the indictment need not allege that the building was the dwelling of two persons. — State V. Toole, 29 Conn. 342, 76 Am. Dec. 702. T Brown v. State, 79 Ala. 51; Sampson v. Com., 6 Watts & S. (Pa.) 385. Where ownership was laid in A or B and the proof showed ownership in A, B, and C jointly the variance Is immaterial. — Brown V. State, 79 Ala. 51. 8 People V. Mix, 149 Mich. 260, 112 N. W. 907, 14 Det. Leg. News 397. 9 People v. Handley, 100 Cal. 370, 34 Pac. 853. See People v. Davis, 135 Cal. IBS, 67 Pac. 59; People V. Laverty, 9 Cal. App. 759, 100 Pac. 901. Erroneous or insufficient allega- tion as to ownership of property is immaterial if the offense be described in other respects with suflaclent certainty, under Ken- tucky statute. See Com. v. Napier, 27 Ky. U Rep. 131, 84 S. W. 536. 10 "Then and there belonging to one C G," held to be a sufficient allegation of the ownership of a bam alleged to have been burned. — Com. V. Hamilton, 81 Mass. (15 Gray) 480. 11 People V. Myers, 20 Cal. 76. "Belonging to one A B and In possession of one C D," suffi- ciently describes the house and its ownership. — Sta,te v. McCarter, 98 N. C. 637, 4 S. B. 563. §§427,428 AESON. 483 § 427. Of public building. In an indictment or information charging arson of a pnhlic building, the own- ership of the building is not required to be alleged/ such as a public meeting house,^ a county jail,^ and the like; the court takes judicial notice that county jails and other public buildings are the property of the county where located.* Jail a dwelling-house, und^r the statute, of any person having charge of it or of any person lodged therein, an indictment or information for burning it must allege ownership,^ but such ownership is properly laid in the jailer or sheriff who occupies it.* § 428. Occupancy ob possession — Necessity op avek- MENT AS TO. No Uniform rule obtains in the various states as to the necessity of averment in the indictment or in- formation as to the occupancy or possession of the build- ing, in some of the states such an averment being neces- sary,^ while in others it is not^ when the charge is that of burning a dwelling-house. The general rule may be 1 ALA. — Lockett v. State, 63 Ala. 4 Sands v. State, 80 Ala. 201. 5; Sands v. State, 80 Ala. 201. B State v. Whltmore, 147 Mo. 78, ARK.— Mott V. State, 29 Ark. 147. 47 S. W. 1068. MO. — State v. Johnson, 93 Mo. 73, e State v. Whitmore, 147 Mo. 78, 5 S. W. 699; State v. Wacker, 16 47 S. W. 1068; People ▼. Van Blar- Mo. App. 417. N. Y. — State v. Van cum, 2 John. (N. Y.) 105; Stevens Blarcum, 2 John. 105. VT.— State v. Com., 4 Leigh . 267, 72 Atl. 131. Burning to defraud Insurer. — An indictment or information charging the burning of insured property under § 548 of the Penal Code, with intend to defraud the insurer, will not be held bad on demurrer for uncertainty for not stating the facts constituting the fraud, nor the particular circum- stances connecting defendant' with that element of the offense. — Peo- ple V. Truax, 30 Cal. App. 471, 158 Pac. 510. 1 People V. Giacamella, 71 Cal. 48, 12 Pac. 302. The indictment must ,charge that the attempt was felonious. — Com. V. Weiderhold, 112 Pa. 584, 4 Atl. 345. 2 Com. V. Flynn, 57 Mass. (3 Cush.) 529. 3 Mackesey v. People, 6 Park. Cr. Rep. (N. Y.) 114; People v. Bush, 4 Hill (N. Y.) 433. Compare: People v. Waldhom, 82 Misc. (N. Y.) 238, 143 N. Y. Supp. 484. 4 Com. V. Peaslee, 177 Mass. 267, 59 N. E. 55. An indictment in generaf terms which alleges that he "did unlaw- fully, feloniously, and wilfully at- tempt to set fire to and bum and destroy a certain frame building commonly called a 'barn,' " etc., is defective in that it charges no act. — Kinningham v. State, 119 Ind. 332, 21 N. E. 911. 5 State V. Stephens, 170 N. C. 745, 87 S. E. 131, where the indict- ment was held sufficient under Revisal 1905, §§ 3244, 3254 to up- hold a conviction although no overt act was charged. CHAPTER XXm. INDICTMENT SPECIFIC CHIMES. Assault and Battery. § 431. Form, requisites and sufficiency in general. § 432. Allegation as to intent and malice. § 433. Allegation of present ability. § 434. Allegation of acts constituting the assault. § 435. Allegation of matter in aggravation. § 436. Description of person accused. § 437. Description of person assaulted. § 438. Allegation as to time. § 439. Allegation as to place. §440. Joinder of persons. § 431. FOKM, EEQUISITES AND SUFFICIENCY IN GENBEAl,.^ An indictment or information charging assault, or assault and battery, wMch follows the language of the statute is sufficient;^ the means by which the assault was com- mitted need not be alleged."' It need not be alleged that the assault, or the assault and battery, was com- mitted unlawfully,* although a different rule prevails in 1 For forms of indictment for approved. — Sloan v. State, 42 Ind. assault, and for assault and bat- 2. tery, in the various forms and 8 Smith v. State, 58 Neb. 531, degrees and heinousness of the 11 Am. Cr. Rep. 145, 78 N. W. offense, see Forms Nos. 338-419. 1059. 2 Smith T. SUte, 58 Neb. 531, 4 GA.— Badger v. State, 5 Ga. 11 Am. Cr. Rep. 145, 78 N. W. App. 477, 63 S. E. 532. ILL.— 1059. People v. Cantwell, 160 111. App. Language of statute being "In a 652, afSrmed In 253 III. 57, 97 N. E. rude. Insolent, and angry man- 287. ME. — State v. Creighton, 98 ner," an allegation that defendant Me. 424, 57 Atl. 592. MO. — State "feloniously, purposely, and vcith v. Bray, 1 Mo. 180. TEX. — State premeditated malice did beat, v. Lutterloh, 22 Tex. 210; State v. strike, kick, tramp, trample upon, Hay*, 41 Tex. 526; State v. Hart- and wound," while sufficient un- man, 41 Tex. 562. der the statute, such departure Committed in unlawful manner from the statutory language is not should be alleged. — State v. Mur- (486) §431 assauijT and batteet. 487 Indiana ;" neither need it be alleged that the offense was committed publicly or to the terror of citizens,* as in the case of an affray;'' nor that the act was feloniously* or wilfully done.' A simple assault charged,, the indictment or informa- tion may be good without averments as to striking, beat- ing or wounding.^* Battery charged, the material facts of the battery must be set forth in the indictment or information;" but an allegation that the defendant did intentionally and wrong- phy, 21 Ind. 441; Cranor v. State, 39 Ind. 64. "Made in a rude, insolent, and angry manner," should be alleged, under statute. — Cranor v. State, 39 Ind. 64. "Shoot towards, at, and against the body of" person named held not sufficient because not neces- sarily importing that act was done in a rude, insolent, or angry man- ner. — McCuUey v. State, 62 Ind. 428. 5 State V. Murphy, 21 Ind. 441; Howard v. State, 67 Ind. 401; Chandler v. State, 141 Ind. 106, 39 N. B. 444. A charge that defendant "did unlawfully commit an assault and battery on the person of M., by then and there in a rude, insolent, and angry manner, touching, strik- ing, beating," etc., is insufficient for failure to allege that the touching, etc., was unlawful. — State V. Smith, 74 Ind. 557. An unlawful touching, etc.. Is sufficiently charged in the words that the defendant "did in a rude, violent, insolent, angry, and un- lawful manner, touch, beat, and strike him the said W." — Parker V. State, 118 Ind. 328, 20 N. E. 833. 6 Com. V. Simmons, 29 Ky. (6 J. J. Marsh) 614. 7 See, supra, § 408. 8 Wagner v. State, 43 Neb. 1, 61 N. W. 85. An averment that the act was feloniously done is equivalent to an averment that it was unlaw- fully done. — Hays v. State, 77 Ind. 450. Where the information charged that defendants "unlawfully, wil- fully, and purposely, and with premeditated knowledge, in a rude. Insolent, and angry manner, touch" him with intent to "felon- iously, wilfully, purposely, and with premeditated malice to kill and murder," there was a suffi- cient charge of assault and bat- tery, the words attempting to charge a felonious intent being mere surplusage. — Barnett v. State, 22 Ind. App. 599, 54 N. E. 414. 9 Stat© T. Boyer, 70 Mo. , App. 156. 10 State V. Schemers, 176 Mo. App. 271, 161 S. W. 1177. 11 Bryant v. State, 41 Ark. 359; Jones V. State, 100 Ark. 195, 139 S. W. 1126. 488 CRIMINAL PEOCEDUEE. § 432 fully assault, beat, cut, and wound a party named, suffi- ciently alleges the battery.^^ Serious damage done to victim, such damage must be described as to character and extent so that the court may see from the face of the indictment or information the particular facts and that the offense designated in the statute is charged.^' Conclusion of indictment or information should be in the words "against the form of the statute," etc.," other- wise it will be fatally defective in some jurisdictions,^* though the contrary has been held in other jurisdictions.^® § 432. Allegation as to intent and malice. The neces- sity of pleading intent and malice in an indictment or in- formation charging an assault, or an assault and battery, depends entirely upon the wording and provisions of the statute under which drawn, and what is herein set forth must be taken in connection with the wording of the par- ticular statute under which the decision is made. An assault being an intentional attempt to do injury by violence^ to the person of another,^ it has been held that an indictment or information charging an assault must 12 Moore v. State, 4 Okla. Cr. Indictment not quashed for fail- App. 212, 111 Pac. 822. ure to conclude "contrary to the 13 State V. Battle, 130 N. C. 651. ^o'™ <>' t^^ statute," etc.— State v. 13 Am. Cr. Rep. 186, 41 S. E. 66. ^erry, 9 N. J. L. (4 Halst.) 374. Averment that party was serf. ^ ^ane v. State, 85 Ala. 11, 4 So. ously injured or sustained serious damage Is too general and Indefl- == Sweeden v. State, 19 Ark. 205; nlte.-State v. Battle, 130 N. C. State v. Harrigan, 4 Penn. (Del.) 651, 13 Am. Or. Rep. 186, 41 S. E. 129, 55 Atl. 5; Johnson v. State, 14 Ga. 55; Goodrum v. State, 60 Ga. 509; Grove v. State, 116 Ga. 516, 59 L. R. A. 598, 42 S. B. 755; State y. Wyatt, 76 Iowa 328, 41 15 State V. McKettrick, 14 S. C. n. W. 31; Hays v. People, 1 Hill (N. Y.) 351; State v. Godfrey, 17 66. 14 State V. McKettrick, 14 S. C, 346. 346. 16 Snodgrass v. State, 13 Ind. Ore. 300, 11 Am. St. Rep. 330, 20 292. Pac. 625. §432 ASSATJLT AND BATTERY. 489 allege intent,' and some of the cases require an allegation of malice as well.* Assault being made a statutory offense, the word "assault" in the statute is to be given its established meaning in the criminal law, unless limited or qualified by the words and provisions of the statute f and as intent is implied in "assault,"* the intent with which the act is done not being made an ingredient of the offense,'^ the intent need not be charged,^ even in the case of an aggra- vated assault.* Unlawful assault being charged, an averment of intent 3 Stat© V. WrigM, 52 Ind. 307; State V. Child, 42 Kan. 611, 22 Pac. 721; State v. Harris, 34 Mo. 347. Assault and battery being charged, indictment must allege intent to injure.— Hill v. State, 34 Tex. 623. 4 State V. Owen, 5 N. C. (1 Murph.) 452, 4 Am. Dec. 571. Compare: State v. Ostman, (Mo. App.) 126 S. W.'961. "Assault with intent to wound, maim, and disfigure" being charged, it must be alleged to have been done on purpose and with malice aforethought. — State V. Harris, 34 Mo. 347. 5 Smith V. State, 58 Neb. 531, 78 N. W. 1059. 6 State V. Crelghton, 98 Me. 424, 5 Atl. 592. 7 state V. Broadbent, 19 Mont. 467, 48 Pac. 775. 8 State V. Godfrey, 17 Ore. 300, 11 Am. St. Rep. 830, 20 Pac. 625; State V. Erickson, 57 Ore. 262, 110 Pac. 785, 111 Pac. 17; Evans v. State, 25 Tex. 303. Common assault charged if the count would be good with the ad- dition of battery, it is equally good for the assault without the bat- tery.— State V. Burt, 25 Vt. 373. Intent to injure must be alleged because the fact that the law will presume intent to injure from fact of injury does not dispense with necessity of averring intent. — Grayson v. State, 37 Tex. 228. Quo animo which may be shown by way of avoidance, where pleaded in defense, need not be averred. — State v. Stafford, 113 N. C. 635, 18 S. E. 256. 9 Saye v. State, 54 Tex. Or. Rep. 430, 114 S. W. 804. Assault with intent to kill need not be alleged. — State v. Nieuhaus, 217 Mo. 332, 117 S. W. 73. "On purpose and with malice aforethought" need not be averred In an indictment charging an as- sault to kill or to do great bodily harm. — State v. Ostman, (Mo. App.) 126 S. W. 961. 490 CRIMINAL PEOCEDUBB. §433 is not reqiured,^" because the intent with which the act is done will be inferred by the court from the unlawful act.^* Assault with dangerous weapon being charged, the in- dictment or information need not allege the intent with which the assault was made,^* because the intent and malice are presumed from the use of such a weapon.^* § 433. AiiiEGATioN OF PRESENT ABILITY. An indictment or information charging assault must allege all the ele- ments necessary to constitute the offense charged, and if the charge is of an aggravated assault or an assault to commit a felony, there must be an averment of an attempt to do personal injury to the person assaulted,^ coupled 10 state V. Koonse, 123 Mo. App. 655, 101 S. W. 139. Assault and battery being charged need not be alleged act unlawfully done. — State v. Boyer, 70 Mo. App. 156. Assault charged in violation of law, Intent need not be averred, as wrongful intent will be inferred from the illegal act. — State v. Al- len, 30 Tex. 59; State v. Hays, 41 Tex. 526; State v. Hartman, 41 Tex. 562. "Feloniously" done Is equiva- lent to "unlawfully done," within the statute. — Hays v. State, 77 Ind. 450. "Wilfully and l State V. Ruby, 61 Iowa 86, 15 N. W. (6 vr ) 71 848; State v. Woods, 31 La. Ann. 267; Com. v. Williams, 56 Mass. "°" ^'^^ ^^^o""^ '^^V °f February, (2 Cush.) 582; Leisenberg v. State, 1886, and in the night-time ot the 60 Neb. 628, 14 Am. Cr. Rep. 193, said day," held to be sufficient in 84 N. W. 6; State v. Robinson, 35 State v. Ruby, 61 Iowa 86, 15 N. J. L.. (6 Vr.) 71. N. W. 848. 538 CEIMINAL PEOCEDUEE. §462 tion will be fatally defective,^ except in those states where, by statute, there is no distinction drawn between breaking and entering in the night-time and breaking and entering in the daytime, in which states there need be no averment as to the hour of the day on which the offense occurred ;* under such statutes, where no time of day is charged, the offense will be presumed to have been committed in the daytime,'' and, where alleged, may be treated as surplusage in Iowa,® but must be proved as laid in California,'' and perhaps elsewhere. Under such a statute, where it is alleged in one count that the offense was committed in the night-time and in another it i^ charged as occurring in the daytime, the court may re- quire the prosecutor to elect upon which he will proceed to trial.* 3 Lewis V. State, 16 Conn. 32; Com. V. Kaas, 3 Brewst. (Pa.) 422; Davis V. State, 43 Tenn. (3 Cold.) 77; Com. v. Weldon, 4 Leigh (Va.) 652; Com. v. Mark, 4 Leigh (Va.) 658. Compare: Lassiter t. State, 67 Ga. 739; Buchanan v. State, 24 Tex. App. 195, 5 S. W. 847; Samp- son V. State, (Tex. Cr.) 20 S. W. 708. 4 People V. Smith, 136 Cal. 207, 13 Am. Cr. Rep. 719, 68 Pac. 702; Lassiter v. State, 67 Ga. 739; Schwahacher v. People, 165 111. 618, 46 N. E. 809; State v. Mlsh, 36 Mont. 168, 122 Am. St. Rep. 343, 92 Pac. 459; Schultz v. State, 88 Neb. 613, 34 L. R. A. (N. S.) 243, 130 N. W. 105; Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395; Buchanan v. State, 24 Tex. App. 195, 5 S. W. 847; Sampson v. State (Tex. Cr.), 20 S. W. 708; Combs V. State (Tex. Cr.), 49 S. W. 585.; Wilks V. State (Tex. Cr.), 51 S. W. 902; Shaffer v. State (Tex. Cr.), 65 S. W. 1072; Newman v. State, 55 Tex. Cr. Rep. 273, 116 S. W. 577; Snodgrass v. State, 67 Tex. Cr. Rep. 451, 148 S. W. 1095; Stephens v. State, 69 Tex. Cr. Rep. 379, 154 S. W. 1001; Howard v. State, — Tex. Cr. Rep. — , 178 S. W. 506. Under Montana Penal Code, § 2145, on conviction, jury must find the degree. — State v. Mish, 36 Mont. 168, 122 Am. St. Rep. 343, 92 Pac. 459. Where committed with force it is unnecessary to state whether committed in the day or night time. — ^Vargas v. State, 60 Tex. Cr. Rep. 196, 131 S. W. 594. B Nicholls V. State, 68 Wis. 416, •0 Am. Rep. 870, 7 Am. Cr. Rep. 106, 32 N. W. 543. 6 State V. Neitzel, 155 Iowa 485, 136 N. W. 532. 7 People V. Smith, 136 Cal. 207, 13 Am. Cr. Rep. 719, 68 Pac. 707. 8 State V. Bouknight, 55 S. C. 353, 74 Am, St. Rep. 751, 33 S. E. 451. §463 BUKGLABT. 539 Specific day on which the offense was committed must be averred,® but need not be proved as laid.^" And it must appear from the face of the indictment that the offense was committed within the period of the statute of limitations/^ §463. •Manner of commission, "BURGLAEiotrsLY," "feloniously," etc. The necessity for the pleader to make use of certain technical averments in charging burglary has been already discussed;^ it is sufficient to state here that at common law an indictment or informa- tion charging burglary must allege the breaking and en- tering to have been "burglariously" done with "felo- nious" intent,^ but under statute neither word need be used, particularly when the indictment or information is 9 state V. Brown, 24 S. C. 224; Cool V. Com., 94 Va. 799, 26 S. B. 411. 10 Ferguson v. State, 52 Neb. 432, 66 Am. St. Rep. 512, 72 N. W. 590; State V. G. S., 1 Tyler (Vt.) 295, 4 Am. Dec. 724. Allegation as to time is imma- terial, and therefore it Is sufficient If proven to have been committed within the time limited by the statute for the prosecution of the offense. — Palin v. State, 38 Neb. 862; Ferguson v. State, 52 Neb. 432, 66 Am. St. Rep. 512, 72 N.-W. 590. 11 See, supra, § 179. Where the crime was alleged to have been committed on April 19, "one thousand nine hundred and ," and before the presentment of the indictment on August 30, 1910, it was bad. — Bradford v. State, 62 Tex. Cr. 424, 138 S. W. 119. As to blank date being fatal, see, supra, § 165. 1 See, supra, § 314. 2 State V. Curtis, 30 La. Ann. 814; State v. McDonald, S W. Va. 456; State v. Meadows, 22 W. Va. 766; State v. McClung, 35 W. Va. 280, 13 S. E. 654; State v. Cottrell, 45 W. Va. 837, 32 S. B. 162. "Burglariously" Is a term of art at common law without which burglary can not be charged; no other word or circumlocution can serve the purpose. — 1 Hale P. C. 550; 2 Bast P. C. 512; 2 Bennett & H. Lead. Cr. Cas. 48; Brock's Case, 4 Co. Rep. 39, 76 Eng. Repr. 982; Long's Case, 5 Co. Rep. 120, 77 Eng. Repr. 243. "Feloniously, burglariously, and with force and arms" did enter in the night-time, is substantially to charge the breaking and entry felonice et burglariter freglt. — People V. Long, 43 Cal. 444. 540 CRIMINAL PROCEDURE. §463 duly framed in the language of the statute;* but in all 3 People V. Rogers, 81 Cal. 209, 22 Pac. 592; Lyons v. People, 68 111. 271; State v. Short, 54 Iowa 392, 6 N. W. 584; State v. Curtis, 30 La. Ann. 814; State v. Jordan, 39 La. Ann. 340, 1 So. 655; Tully V. Com., 45 Mass. (4 Mete.) 357; Com. V. Carson, 166 Pa. St. 179, 30 Atl. 985; State v. Lewis, 13 S. D. 166, 82 N. W. 406; Reed v. State, 14 Tex. App. 662; Jones v. State, (Tex. Cr.) 55 S. W. 491. Tully V. Com., supra, deciding that the Massachusetts definition of burglary does away with the common law requisites of an in- dictment charging that offense, so that the word "burglariously" is no longer essential to validity, was declared by George Bemis (in Law Reporter, Jan., 1847, p. 387) to be "an important one, because in connection with a class of cases which have begun to form a line of precedents in the Massachusetts courts (that is. Com. v. Squires, 42 Mass. (1 Mete.) 258; Devoe v. Com., 44 Mass. (3 Mete.) 316; Josslyn V. Com., 47 Mass. (7 Mete.) 236). The old landmarks are fast vanishing in the jurisprudence of that respectable commonwealth before the supposed efficacy of statute phraseology — phraseology, too, which has hardly changed a whit for the last half century, and under which common law techni- calities have been deemed hith- erto indispensable." "Feloniously" qualifying word "steal" in the statute, its omission in an indictment charging conspir- acy to break and enter the store- house of another with intent to steal, is fatal. — Scudder v. State, 62 Ind. 13. — In Louisiana the common law crime of burglary is unknown by name, while the statutory offense is what would be burglary at com- mon law, and it is sufficient in the indictment to charge that the offense was done "feloniously" without the use of the term "burg- lariously." — State V. Curtis, 30 La. Ann. 413;. State v. Newton, 30 La. Ann. 1253; State v. Jordan, 39 La. Ann. 340. "Property of another" omitted in an Indictment charging accused did "unlawfully, feloniously and burglariously break and enter" with intent to steal certain meat therein, held fatal. — Barnhart v. State, 154 Ind. 117, 56 N. E. 212. "Wilfully and maliciously, and with force" being the language of the statute, an indictment charg- ing the accused "feloniously, wil- fully, and burglariously did break and enter" is sufficient, those words being the equivalent of the statutory language. — Shotwell v. State, 43 Ark. 345. An allegation that accused ma- liciously, feloniously, and burglar- iously broke and entered is equiv- alent to saying that the breaking was with force. — Parnell v. State, 86 Ark. 241, 110 S. W. 1036. — "Forcibly" omitted does not vitiate where the charge is that accused "wilfully, feloniously, and maliciously broke and entered." — Cunningham v. Com., 11 Ky. L., Rep. 783, 13 S. W. 104. — "Maliciously" omitted will not vitiate where it is charged accused "wilfully, forcibly and feloniously" did the act, as these words import and in effect charge malice. — Johns V. State, 88 Neb. 145, 129 N. W. 247. § 464 BURGLARY, 541 sucli cases tlie act should be charged to have Tjeeii unlaw- fully done.* Entering without breaking, either in the daytime or night-time, with intent to commit a misdemeanor, not constituting the offense of burglary, the indictment or information need not charge that the offense was done burglariously or wilfully and feloniously.^ § 464. Alleging want op consent. The general rule is that an indictment or information charging bur- glary and larceny from a building need not allege want of consent to the entry or want of consent to the taking of property therefrom, that fact being implied from the language necessary to be used in charging the offense; but in Texas, under the statute, it seems that it is neces- sary to negative consent to entry^ and to allege want of consent to the taking of the property,^ and where the property is jointly owned consent must be negatived as to each of the owners;* but where the entry is alleged to have been by force, the want of the owner's or occu- pier's consent need not be specifically alleged,* and the same is true when there is a charge of breaking and entering.® 4 state V. Boggs, 4 Penn. (Del.) were taken wltliout the owner's 95, 53 Atl. 360. consent. — Fox v. State, 61 Tex. Cr. 5 Tilly V. State, 21 Fla. 242. Rep. 544, 135 S. W. 570. 1 Entry without consent of occu- 3 Young v. State, 42 Tex. Cr. pant being charged, not necessary Rep. 301, 14 Am. Cr. Rep. 133, 59 ' to aver without consent of any one S. W. 890. •' with authority to give such con- i Summers v. State, 9 Tex. App. ' sent. — Mace v. State, 9 Tex. App. 396; Buntain v. State, 15 Tex. 110; Reed v. State, 14 Tex. App. App. 485; Langford v. State, 17 662. Tex. App. 445; Dennis v. State, 2 Young V. State, 42 Tex. Cr. 71 Tex. Cr. Rep. 162, 158 S. W. Rep. 301, 14 Am. Cr. Rep. 133, 59 1008. S. W. 890; Moray v. State, 61 Tex. 5 Sullivan v. State, 13 Tex. App. Cr. Rep. 547, 135 S. W. 569. 462, overruling Brown v. State, 7 Allegations of Indictment in Fox Tex. App. 619 ; Smith v. State, V. State, (Tex. Cr.) 135 S. W. 570, 22 Tex. App. 350, 3 S. W. 238; were held insufficient for failure Dennis v. State, 7 Tex. Cr. Rep. to allege that the stolen goods 162, 158 S. W. 1008. 542 CRIMINAL PKOCEDURE. §465 § 465. Attempt to commit the offense. In those cases where the statute defining and punishing burglary also defines and punishes an attempt to commit the crime, or attempts to commit crime generally are defined and punishment prescribed in another statute or section of a code,^ an indictment charging an attempt to com- mit burglary framed in the language of the statute is sufficient,^ where as thus framed the indictment contains all the elements of the crime sought to be charged, other- wise these elements must be specifically alleged.^ The in- dictment or information must allege, not only the intent* to commit burglary, but also the overt acts relied upon as constituting the attempt.^ 1 See People v. Jones, 263 111. 564, 105 N. B. 744. 2 People V. Murray, 67 Cal. 103, 6 Am. Or. Rep. 54, 7 Pac. 178. See, also, ante, § 458. 3 Charging accused "in the night- time, feloniously did attempt to hreak and enter, with intent goods and chattels in said huilding then and there heing found then and there feloniously to steal, take and carry away, and in such attempt" did specified acts, sufficiently charged an attempted hurglary. — Com. V. Shedd, 140 Mass. 451, 5 N. E. 254. 4 Intent may be inferred from the acts proven. — Com. v. Shedd, 140 Mass. 451, 5 Am. Cr. Rep. 61, 5 N. E. 254. B State V. Doran, 99 Me. 329, 105 Am. St. Rep. 278, 59 Atl. 440; Com. V. Shedd, 140 Mass. 451, 5 Am. Cr. Rep. 61, 5 N B. 254; Smith V. State, 60 Neh. 204, 14 Am. Or. Rep. 146, 94 N. W. 106; Clarke's Case, 6 Gratt. (Va.) 675; Hicks V. Com., 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024. Attempt to commit burglary in- voives guilty intent, hut the law does not punish a mere guilty Intent; some overt act to carry out that intent must he alleged and proved. See Gray v. State, 63 Ala. 66; State v. Wilson, 30 Conn. 500; Cunningham v. State, 49 Miss. 685; People v. Moran, 123 N. Y. 254, 20 Am. St. Rep. 732, 10 L. R. A. 109, 8 N. Y. Cr. Rep. 105, 25 N. E. 412; State v. Jordan, 75 N. C. 27; State v. Colvin, 90 N. C. 717; Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686; Hicks v. Com., 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024; State v. Bailer, 26 W. Va. 90, 53 Am. Rep. 66. — "Attempt implies more than an intention formed. Some step toward consummation must he taken before the intention he- comes an attempt" (Gray v. State, 63 Ala. 66, 73), and "the act must reach far enough toward the ac- complishment of the desired result as to he the commencement of the consummation of the offense after the preparations are made." — § 466 BURGLARY. 543 Particular felony intended to fee committed va. the iHi- lawful breaking and entering must be alleged.^ It is not sufficient to aver an unlawful breaking and entering with intent to commit one of the felonies mentioned in a desig- nated statute, or a specified section of the code, under which the indictment is drawn,'^ or to allege an attempt to commit a felony, the nature of which is to the grand jurors unknown.^ However, the felony intended to be committed on the unlawful breaking and entering need not be as fully and specifically set forth as is required in an indictment charging the actual commission of the felony.® § 466. Intent must be alleged. The general rule, both at common law and under statute, is that an averment of the existence of an intent, at the time of breaking into and entering the building, to steal, or to commit some other felony, is essential to make an indictment or infor- mation charging burglary sufficient,^ although there are Hicks V. Com., 86 Va. 223, 19 Am. Doran, 99 Me. 329, 105 Am. St. Rep. St. Rep. 891, 9 S. B. 1024. 278, 59 Atl. 440. — Mere preparation for an at- i Oliver v. State, 17 Ala. 587; tempt is not Indictable. See Kerr's Ogletree v. State, 28 Ala. 693; Mur- Whart. Grim. Law, § 219. ray v. State, 48 Ala. 675; Bell v. 6 Smith V. State, 68 Neb. 204, State, 48 Ala. 684, 17 Am. Rep. 40; 94 N. W. 106. Barber v. State, 78 Ala. 19; Shot- "Violently" and against her will well v. State, 43 Ark. 345; Reed v. to ravish a named female, occu- State, 66 Ark. 110, 49 S. W. 350 pant of the house imlawfuUy en- People v. Nelson, 58 Cal. 104 tered, held not to be a sufficient State v. Eaton, 3 Harr. (Del.) 544 allegation of the felony intended State v. Lockhart, 24 Ga. 420 to be committed Ih breaking and State v. Gay, 25 La. Ann. 472 entering. — People v. Jones, 263 111. Moore v. Com., 47 Mass. (6 Mete.) 564, 105 N. B. 744. 243, 39 Am. Dec. 724; People v. 7 Smith V. State, 68 Neb. 204, 14 Stewart, 44 Mich. 484, 7 N. W. 71; Am. Cr. Rep. 146, 94 N. W. 106. State v. Buchanan, 75 Miss. 349, 8 People V. Jones, 263 111. 564, 22 So. 875; Draughn v. State, 76 105 N. B. 744. Miss. 574, 11 Am. Cr. Rep. 192, 25 9 It is ordinarily sufficient to So. 153; Winslow v. State, 26 Neb. state the intended offense gener- 308, 41 N. W. 1116; Jones v. State, ally as by aUeging "an intent to 11 N. H. 269, 2 Ben. & H. Lead, steal, or commit the crime of lar- Cr. Cas. 46; Portwood v. State, ceny, rape, or arson." — State v. 29 Tex. 47, 94 Am. Dec. 258; State 544 CRIMINAL PROCEDXniE. §466 cases holding that burglary, in and of itself, is a felony,^ and that an indictment charging burglary may be good without the allegation of an intent to commit a felony, where it shows that a felony was in fact committed.' The particular felony intended to be committed must be alleged,* it not being sufficient to allege "some crime V. Robertson, 32 Tex. 159; State v. Brady, 14 Vt. 353. Charging general intent to steal, only, insufficient. — Webster v. State, 9 Tex. App. 75. Intent sufficiently charged in State V. Powell, 61 Kan. 81, 58 Pac. 968; State v. Neddo, 92 Me. 71, 42 Atl. 253; State v. Taylor, 136 Mo. 66, 37 S. W. 907; State v. Ellsworth, 130 N. C. 690, 41 S. E. 548; State v. Staton, 133 N. C. 642, 45 S. E. 362. 2 See Jones v. State, 12 Ga. App. 813, 78 S. E. 474. Under statute, of course, burg- lary and grand larceny are distinct felonies of the same grade, sub- jected to the same nature of punishment, though committed at one and the same time and in the carrying out of an unlawful break- ing into and entering and may be joined in the same indictment, but are not subject to the doctrine of merger. See Johnson v. State, 29 Ala. 62, 65 Am. Dec. 383; Wilson V. State, 37 Ala. 134; Bell v. State, 48 Ala. 684, 17 Am, Rep. 40; Ham- ilton V. State, 36 Ind. 280, 286, 10 Am. Rep. 22. 3 Barber v. State, 78 Ala. 19; In re Saxton, 2 Harr. (Del.) 533; Olive V. Com., 68 Ky. (5 Bush) 376; State v. Neddo, 92 Me. 71, 42 Atl. 253; Com. v. Hope, 39 Mass. (22 Pick.) 6; Com. v. Hersey, 84 Mass. (2 Allen) 173; State v. Tay- lor, 136 Mo. 66, 37 S. W. 907; Jones V. State, 11 N. H. 269, 2 Ben. & H. Lead. Cr. Cas. 46; State V. Johnson, 119 N. C. 883, 26 S. B. 163; Com. v. Brown, 3 Rawle (Pa.) 207; Davis v. State, 43 Tenn. (3 Cold.) 77; Pardue v. State, 63 Tenn. (4 Baxt.) 10; Rex v. Fur- nival, 1 R. & R. 331; Dobbs' Case, 2 East P. C. 513. 4 People V. Nelson, 58 Cal. 104; State V. Eaton, 3 Harr. (Del.) 554; State V. Lockhart, 24 Ga. 420; Kyle V. Com., Ill Ky. 404, 23 Ky. L. Rep. 708, 14 Am. Cr. Rep. 143, 63 S. W. 782, overruling Slaughter V. Com., 15 Ky. L. Rep. 569, 24 S. W. 622; State v. Celestin, 138 La. 407, 70 So. 342; State v. Bu- chanan, 75 Miss. 349, 22 So. 875; Mason v. People, 26 N. Y. 200. Contra: State v. Groves, 80 Ohio St. 361, 17 Ann. Cas. 361, 88 N. E, 1096; State v. Williamson, 50 Tenn. (3 Heisk.) 483; Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258 ; Wilburn v. State, 41 Tex. 237; Simms v. State, 2 Tex. App. 110; Philbrick v. State, 2 Tex. App. 517; Rodriguez v. State, 12 Tex. App. 552. "A misdemeanor or a felony" being charged in indictment or in- formation as the intent of the accused at the time of breaking into and entering, Is sufficient, under the Washington statute. — §466 BURGLARY. 545 to the grand jurors unknown" was intended to be com- mitted by the accused,^ or charging an intention to com- mit a crime designated in a particular section of the code or statute.® This is the general rule of the adjudicated cases, and the only safe course for the pleader to follow. The mere allegation of an intent to commit a felony, without specifying a particular felony, is a mere conclu- sion of the pleader.^ The facts constituting the elements of the particular felony need not be alleged, it being suffi- cient to name the felony;^ yet the mere allegation of an intent to commit a designated felony, without an aver- ment of the overt acts tending towards its accomplish- ment, is said not to be sufficient; those overt acts must state V. Lewis, 42 Wash. 672, 85 Pac. 668. "Broke and entered a railroad car with Intent to commit a fel- ony," though substantially in the language of the statute, is insuffi- cient because it contains no de- scription of the overt acts of the accused In attempting to commit the crime charged, nor any specifi- cation of the particular felony which the accused is charged with attempting to commit after break- ing into the car, fails to apprise the defendant of the specific of- fense with which he is charged as required by the constitution (Me. Const., art. 1, §6), and for that reason is fatally defective. — State V. Doran, 99 Me. 329, 105 Am. St. Rep. 278, 59 Atl. 440. Describing such felony with all its statutory evidence, require- ment under Texas code. — Rodri- guez V. State, 12 Tex. App. 552. — Felony Intended to be com- mitted need not be set forth fully and technically.— ments charging burglary. Imports a "dwelling-house." — See Reed v. State, 66 Ark. 110, 49 S. W. 350; Com. V. Elliston, 14 Ky. Law Rep. 216, 20 S. W. 214; Thompson v. People, 3 Park. Cr. Rep. (N. Y.) 206; Williams v. State, 42 Tex. Cr. Rep. 602, 62 S. W. 1057, affirm- ing 61 S. W. 359, under a statute making it a distinct crime of bur- glary to enter a "private resi- dence" "by force, threats, or fraud at night," the charge being suffi- cient as an allegation of breaking and entering a "private residence" in the day-time. Contra: Ford v. State, 112 Ind. 373, 14 N. E. 241; Daniel v. Coul- sting, 7 Man. & G. 122, 125, 49 Eng. C. L. 122, 125. "Mansion house" is sufficiently descriptive of a dwelling-house in an indictment for burglary. — De- voe V. Com., 44 Mass. (3 Mete.) 316; Com. v. Pennock, 3 Serg. & R. (Pa.) 199; Armour v. State, 22 Tenn. (3 Humph.) 379; Fletcher V. State, 78 Tenn. (10 Lea) 338. Sufficient description: A de- scription characterizing the house as "used and occupied" by a named person is sufficient. — Wallace v. State, 99 Ark. 92, 137 S. W. 551. A description of the building entered as that in which the United States post office at G is located, is a sufficient description, as there is but one post office there, and where it lays the own- ership In a named person it is certainly good. People v. Warner, 25 Cal. App. 775, 145 Pac. 543. Breaking and entering a planing- 556 CEIMINAL PROCEDURE. § 473 some statutes ;* but the general rule is that the character of the house or building charged to have been broken into and entered need not be alleged,' unless it is a pri- vate residence.* In the description of the premises broken into and entered it is the usual and the safe practice to mill of a named person "in whicli said mill was kept for use and deposit" by said person "goods, wares and valuable things," suffi- ciently shows accused broke Into a "building." — State t. Haney, 110 Iowa 26, 81 N. W. 151. "Building of Carnegie Steel [Company" a sufiBcient description of the building burglarized, in the absence of a demand for a bill of particulars. — Com. v. Johnston, 19 Pa. Super. Ct. 241. "In the state and county afore- said, broke and entered a certain house therein situate, and being used and possessed by one A," Is a sufficient description of the house burglarized. — Reed v. State, 66 Ark. 110, 49 S. W. 350. Insufficient description. — Dunn V. Com., 119 Ky. 457, 27 Ky. Law Rep. 113, 84 S. W. 321. Because the Indictment de- scribed the house as "dwell-house" instead of "dwelling-house," it was held fatally defective In Parker v. State, 114 Ala. 690, 22 So. 791, on the ground that the omission of "Ing" was matter of substance, when it was manifestly simply a clerical error, and should have been regarded as a harmless one. Breaking and entering smoke- house being charged, without an allegation that the building was used in connection with any dwel- ling-house, indictment fatally de- fective. — Dunn v. Com., 119 Ky. 457, 27 Ky. Law Rep. 113, 84 S. W. 321. Where the house was described as "occupied S" instead of "occu- pied by S," it is fatally defective. — Scroggins v. State, 36 Tex. Cr. Rep. 117, 35 S. W. 968. Tliese rulings both absurd and hide-bound by ultra technicality, not in keeping with efficient and enlightened administration of the criminal law. See, supra, § 322, and § 469, footnote 2. 2 State V. Dale, 141 Mo. 284, 64 Am. St. Rep. 513, 42 S. W. 722. "It will be observed that the indictment gives no name to the building. If it was necessary to prove the kind of building it was, then by the same token it was necessary to allege it." — State v. Dale, 141 Mo. 284, 64 Am. St. Rep. 513, 42 S. W. 722. •3 Stephens v. State, 69 Tex. Cr. Rep. 379, 154 S. W. 1001. For descriptions lield sufficient, see Murray v. State, 48 Ala. 681; State V. Haney, 110 Iowa 26, 81 N. W. 151; Reed v. State, 66 Ark. 110, 49 S. W. 350; State v. Malloy, 30 La. Ann. 61; State v. James, 120 La. 533, 45 So. 416; Sullivan v. State, 13 Tex. App. 464; Gundy v. State, 72 Wis. 1, 7 Am. Cr. Rep. 262, 38 N. W. 328. 4 Stephens v. State, 69 Tex. Cr. Rep. 379, 154 S. W. 1001. Compare: Shaffer v. State (Tex. Cr.) 65 S. W. 1072, where the court refused to quash the indictment for failure to allege that the bur- glarized house was a private resi- dence. §473 BUEGLAET. 557 emplay the words of tlie statute," and if to sucli place the statute adds a descriptive word or phrase, it must be cov- ered by allegation.* In all cases the description must be such as to bring the house or building within the statute providing the breaking and entering of such a building or house shall constitute the offense of burglary.'' Identification of building or house alleged to have been burglarized by description in the indictment or informa- tion in so far necessary, only, as will protect the defend- ant, should he be acquitted, from being a second time put in jeopardy for the same offense, or, on conviction, from being subject to a second punishment for the same of- fense;^ and when the description accomplishes this pur- pose it is sufficient.® Cases concerning description of dwelling-houses,^" pri- vate residences, ^^ buildings within curtilage,^^ shops and B Daniels v. State, 78 Ga. 98, 6 Am. St. Rep. 238; People v. Carr, 255 111. 203, Ann. Cas. 1913D, 864, 41 L. R. A. (N. S.) 1209, 99 N. B. 357. 6 State V. Dale, 141 Mo. 284, 64 Am. St. Rep. 513, 42 S. W. 722. 7 Dickinson v. State, 148 Ala. 676, 41 So. 929; People v. Schafer, 161 Cal. 573, 119 Pac. 920; State V. South, 136 Mo. 673, 38 S. W. 716; State v. Dale, 141 Mo. 284, 64 Am. St. Rep. 513, 42 S. W. 722. 8 Butler V. State, 22 Ala. 43; Johnson v. Com., 87 Ky. 189, 7 S. W. 927; State v. Trapp, 17 S. C. 467, 43 Am. Rep. 614. 9 Anderson v. State, 48 Ala. 665, 17 Am. Rep. 36; State v. Trapp, 17 S. C. 467, 43 Am. Rep. 614. 10 Williams v. State, 2 Ga. App. 394, 58 S. E. 549; Radley v. State, 174 Ind. 645, 92 N. E. 541; Quinn V. People, 71 N. Y. 561, 27 Am. Rep. 87, 2 Cow. Cr. Rep. 331, affirming 11 Him 336; Thomp- son V. People, 3 Park. Cr. Rep. (N. Y.) 208; Com. v. Pennock, 3 Serg. & R. (Pa.) 199; Nev- ills V. State, 47 Tenn. (7 Cold.) 82; Favro v. State, 39 Tex. Cr. Rep. 452, 73 Am. St. Rep. 950, 46 S. W. 932; State v. Cox, 39 Wash. 345, 81 Pac. 848; Clark v. State,, 69 Wis. 203, 2 Am. St. Rep. 272, 33 N. W. 436. 11 Fonville v. State, (Tex. Cr.) 62 S. W. 573; Martinus v. State, 47 Tex. Cr. Rep. 528, 122 Am. St. Rep. 709, 84 S. W. 831; Johnson v. State, 50 Tex. Cr. Rep. 116, 96 S. W. 45; Lewis v. State, 54 Tex. Cr. Rep. 636, 114 S. W. 818; Knuckles v. State, 55 Tex. Cr. Rep. 6, 114 S. W. 825; Malley v. State, 58 Tex. Cr. Rep. 425, 126 S. W. 598; Sedgwick v. State, 57 Tex. Cr. Rep. 420, 123 S. W. 702. 12 Ward V. State, 50 Ala. 120; Daniels v. State, 78 Ga. 101, 6 Am. St. Rep. 238; Hutchins v. State, 3 Ga. App. 300, 59 S. E. 848; Draughn v. State, 76 Miss. 574, 25 So. 153; State v. Schuchmaan, 133 558 CRIMINAL PROCEDURE. §473 offices,^' stores," warehouses,^^ storehouses,^^ hotels,^'' barns,^* chicken-liouses,'® smoke-houses,^" gin-houses,^^ Mo. Ill, 33 S. W. 35, 34 S. W. 842; State V. South, 136 Mo. 673, 38 S. W. 716; Fletcher v. State, 78 Tenn. (10 Lea) 338; State v. Ran- dall, 36 Wash. 438, 78 Pac. 998; State V. Kane, 63 Wis. 260, 23 N. W. 488; Nlcholls v. State, 68 Wis. 420^60 Am. St. Rep. 870, 32 N. W. 543. 13 Adams v. State, 13 Ala. App. 330, 69 So. 357; State v. Ferguson, 149 Iowa 476, 128 N. W. 840; Lar- ned V. Com., 53 Mass. (12 Mete.) 240; Com. v. Bowden, 80 Mass. (14 Gray) 103; Com. v. Moriarity, 135 Mass. 540; Byrnes v. People, 37 Mich. 515; Beckford v. People, 39 Mich. 209; State v. Canney, 19 N. H. 135 ; Blgham v. State, 31 Tex. Cr. Rep. 244, 20 S. W. 577; State V. Sufferin, 6 Wash. 107; 32 Pac. 1021. 14 Hawkins v. State, 8 Ala. App. 234, 62 So. 974; State v. Smith, 5 La. Ann. 340; State v. Moore, 28 La. Ann. 66; State v. Canney, 19 N. H. 135; Com. v. McMonagle, 1 Mass. 517; Com. v. Bowden, 80 Mass. (14 Gray) 103; Com. v. Whalen, 131 Mass. 419; McNutt V. State, 68 Neb. 207, 14 Am. Cr. Rep. 127, 94 N. W. 143; People V. Marks, 4 I»irk. Cr. Rep. (N. Y.) 153; State v. Johnson, 64 Ohio St. 270, 60 N. B. 219. 16 Presley v. State, 61 Fla. 46, 54 So. 367; Roy v. Com., 75 Ky. (12 Bush) 397; Koster v. People, 8 Mich. 431; State v. Watson, 141 Mo. 338, 42 S. W. 726; Spencer v. State, 13 Ohio 401; State v. Dol- son, 22 Wash. 259, 60 Pac. 653. 16 Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714; Rimes v. State, 36 Fla. 90, 18 So. 114; Davis v. State, 51 Fla. 37, 40 So. 179; Hale V. Com., 98 Ky. 353, 33 S. W. 91; Drury v. Com., 162 Ky. 123, 172 S. W. 94; State v. Sweeney, 135 La. 566, 65 So. 743; Quinn v. Peo- ple, 71 N. Y. 561, 27 Am. Rep. 87; Hagar v. State, 35 Ohio St. 268; State V. Johnson, 64 Ohio St. 270, 60 N. E. 219; Hollister v. Com., 60 Pa. St. 103. 17 Thomas v. State, 97 Ala. 4, 12 So. 409; Jones v. State, 75 Ga. 825; Bruen v. People, 206 111. 417, 69 N. E. 24; State v. Miller, 3 Wash. 131, 28 Pac. 375; State v. Johnson, 4 Wash. 593, 30 Pac. 672; State V. Burton, 27 Wash. 528, 67 Pac. 1097. 18 Orrell v. People, 94 111. 456, 34 Am. Rep. 241; Gillock v. Peo- ple, 171 111. 307, 49 N. E. 712; Pitcher v. People, 16 Mich. 142; People V. Griffith, 133 Mich. 607, 95 N. W. 719; Ratekin v. State, 26 Ohio St. 420. 19 Lucas V. State, 144 Ala. 63, 3 L. R. A. (N. S.) 412, 39 So. 821; Gunter v. State, 79 Ark. 432, 96 S. W. 181; People v. Stickman, 34 Cal. 245; Gillock v. People, 171 111. 307, 49 N. E. 712; State v. Helms, 179 Mo. 280, 78 S. W. 592, 20 Pressley v. State, 111 Ala. 34, 20 So. 647; Richardson v. State, 115 Ala. 113, 22 So. 558; Dunn v. Com., 119 Ky. 457, 84 S. W. 321; XJnseld v. Com., 140 Ky. 529, 140 Am. St. Rep. 393, 131 S. W. 263; State V. Burdett, 145 Mo. 674, 47 S. W. 796; Fletcher v. State, 78 Tenn. (10 Lea) 338; Benton v. Com., 91 Va, 782, 21 S. E. 495. 21 Stone V. State, 63 Ala. 119 ; State V. Evans, 18 S. C. 137. §§474,475 BURGLARY. 559 depots,^^ cribs,^' granaries,^* tool-houses,^^ mill-liouses,^'' cellars,^'^ house-boats,^* fruit-stands/" vaults,*** and bil- liard-halls.*^ § 474. BtJiLDiNGS WITHIN CURTILAGE. An indict- ment or information charging accused broke and entered a building described as "within the curtilage and protec- tion of the dwelling-house," is sufficient description of the building alleged to have been burglarized without giving the name of the building or the uses to which put,^ but where thie indictment or information fails to use those descriptive words it will not be suffioient,^ where drawn under a statute declaring that the breaking and entering of "any building within the curtilage of a dwelling- house" shall constitute the crime of burglary. § 475. Negativing adjacency to dwelling-house. Where the statute provides that the breaking into and entering certain buildings and premises not within the curtilage and not adjacent to a dwelling-house shall con- 22 Dickinson v. State, 148 Ala. 27 State v. Brower, 127 Iowa 676, 41 So. 929; People v. Young, 687, 104 N. W. 284; State v. Clark, 65 Cal. 225, 3 Pac. 813; Daniels v. 89 Mo. 423, 1 S. W. 332; Reg. v. State, 78 Ga. 101, 6 Am. St. Rep. Hill, 2 M. & Rob. (Eng.) 458. 238; State v. Ferguson, 149 Iowa 28 Nagel v. People, 229 111. 598, 476, 128 N. W. 840; Com. v. Wink- 82 N E 315 ler. 165 Ky. 269, 176 S. W. 1012; ,, p^^' ^ g^ ^^^ State V. Edwards, 109 Mo. 315, 19 -^^ ^ ^ ^ 233 S. W. 91; State v. Bislxop, 51 Vt. 287, 31 Am. Rep. 690. '" ^^^P'^ ^- ^^'^^^^^^^ "^ N. Y. 23 Wood y. State, 18 Fla. 967; 137, 2 Am. St. Rep. 373, 15 N. B. Roberts y. State, 55 Miss. 421; "1, reversing 44 Hun 278. Barber y. State (Tex. Cr.), 69 ^i Simpson v. State, 5 Okla. Cr. S. W. 515; Gilford v. State, 48 Rep. 57, 113 Pac. 549. Tex. Cr. 312, 87 S. W. 698. i Bryant v. State, 60 Ga. 358. 24 State V. Hecox, 83 Mo. 531. Not forming part of dwelling- 25 People y. Mendoza, 17 Cal. house need not be alleged in the App. 157, 118 Pac. 964. indictment or information. — State 26 McElreath y. State, 55 Ga. v. Burdett, 145 Mo. 674, 47 S. W. 562; State y. Haney, 110 Iowa 26, 796. 81 N. W. 151; State v. Sampson, 2 State v. Schuchmann, 133 Mo, 12 S. C. 567, 32 Am. Rep. 513. Ill, 33 S. W. 35, 34 S. W. 842. 560 criminaij procedure. § 476 stitute burglary, an indictment or information charging the breaking and entering of such a building by accused, must allege that the building or premises thus alleged to have been broken into and entered is not situated within the curtilage and not adjacent to a dwelling- house ;^ but describing the premises as an office,^ or as a store,* has been held to sufficiently negative the idea that the premises described is within the curtilage or adjacent to a dwelling-house. § 476. Railroad car. Entering a railroad car with intent to commit grand or petit larceny being declared by statute to be burglary,^ an indictment or information charging the accused with the offense of burglary by en- tering a railroad car with intent to steal, must describe the railroad car alleged to have been burglarized^ with precision and certainty, either by stating the number of the car,* or otherwise distinguishing it from other cars of the same train,* and if the railroad car charged to have 1 Com. V. Tuck, 37 Mass. (20 is sufficient to show that the of- Pick.) 356; Koster v. People, 8 fense was committed in a place Mich. 431; Byrnes v. People, 37 prohibited by law. — Nicholls v. Mich. 515; Bickford v. People, 39 State, 68 Wis. 416, 60 Am. Rep. Mich. 209. 870, 7 Am. Cr. Rep. 106, 32 N. W. Contra: State v. Kane, 63 Wis. 543. 260, 23 N. W. 488, followed in It need not be specified whether Gundy v. State, 72 Wis. 1, 38 N. W. it was a box, closed, flat, or open 328. car. — ^Aguillar v. State (Tex. Cr.), 2 Rimes T. State, 36 Fla. 90, 18 ^6 S. W. 405. g -.^A An objection to the sufficiency of the description of the car must 3 Devoe v. Com., 44 Mass. (3 Mete.) 316; Evans v. Com., 44 Mass. (3 Mete.) 453; Phillips v. Pom., 44 Mass. (3 Mete.) 588. Contra: Com. v. Tuck, 37 Mass. be made before trial and can not be availed of at the trial. — State V. Stutches, 163 Iowa 4, 144 N. W. 597. 3 People V. Webber, 138 Cal. 145, (20 Pick.) 356. ^3 f^^ p^_ ^^^ ggg^ ^q p^^ ^pgg. 1 As in Kerr's Cal. Pen. Code, Sullivan v. State, 7 Okla. Cr. Rep. 1915, § 459. 307, 123 Pac. 569. 2 A description that the defend- 4 People v. Webber, 138 Cal. 145, ant entered "the freight and ex- 13 Am. Or. Rep. 698, 70 Pac. 1089; press car of the American Express Sullivan v. State, 7 Okla. Cr. Rep. Company" mentioned in the count 307, 123 Pac. 569. §477 BUEGLAEY. 561 been burglarized is not thus particularly described and individuated the indictment or information will be insuf- ficient.® Where the description follows the language of the statute, and specifically names the owner of the car, the consignor and the consignee, it will be sufficient, it seems.® — Offices, shops, stobe-hoxjses, warehouses. §477. - ETC. Under statutes providing that where a person breaks into and enters any office, shop, store, booth, tent, ware- house, or other building^ in which goods, wares, mer- chandise, or other things of value are kept, with intent to steal, it constitutes the crime of burglary, an indictment or information charging accused did break and enter premises designated must, by descriptive allegations, bring the premises designated within the provisions of the statute. 5 People V. Webber, 138 Cal. 145, 13 Am. Or. Rep. 698, 70 Pac. 1089, in which the information alleged accused "did unlawfully, feloni- ously and burglariously enter a certain railroad car and train, to-wit, a railroad car and train owned and operated by the South- em Pacific Company (a corporar tion).- In holding the Indictment insuf- ficient the court say: "One may commit other offenses on a train of cars, but one can only commit burglary of a railroad oar of a train. Each car is separate and distinct from every other car of the train. Cars are being added to and detached from the train at points along the line during its trip; and then, too, on through lines, such as the line of the South- ern Pacific Company, there are many trains, freight and passen- I. Crim. Proc. — 36 ger, running daily. The defendant should be informed with some de- gree of certainty at least as to the particular car he is charged with having feloniously entered. There is no difficulty in ascertaining the fact, for all cars bear some distin- guishing mark or number. The Penal Code does not relieve the prosecuting attorney from the ne- cessity of informing the defendant with reasonable certainty of the nature and particulars of the crime charged against him, that he may prepare for his defense, and upon acquittal or conviction, plead his jeopardy against further prosecution." Citing People v. Lee, 107 Cal. 477, 40 Pac. 754; People V. Ward, 110 Cal. 369, 42 Pac. 894. 6 Morris v. United States, 229 F'ed. 516. 1 As is provided by Mo. Rev. Stats., 1889, § 3526, and those of similar provisions. 562 CRIMINAL PEOCEDtTEE. § 477 Barn charged to have been burglarized, the descrip- tion will be insufficient where that term is not by alle- gation brought within the provision of the statute, the word "barn" not appearing in the statute.^ Chicken-house or hen-house charged as premises bur- glarized by accused, indictment or information need not describe the building as especially constructed or made for the use to which it was put, such building being of a substantial kind, and well known, in communities where poultry is raised, as the building where chickens and other poultry are housed.^ Office charged to have been burglarized by accused, it is not necessary to allege that the premises were not ad- jacent to or used in connection with a dwelling-house, even in those cases where there are two statutes, one pro- viding as to offices adjoining, and the other as to offices not adjoining, a dwelling-house, both statutes imposing a similar punishment.* "Shop" used in statute, indictment charging accused with breaking and entering a "store," is sufficiently de- scriptive of the premises in Louisiana,^ but not in Mas- sachusetts.® "Shop" and "store" both appearing in the statute, an indictment or information must correctly describe and name the premises broken into and entered; an allega- tion that accused broke into and entered a "store" of a named person and certain goods "in said shop aforesaid 2 state V. Soiith, 136 Mo. 673, Mete.) 316; Evans v. Com., 44 38 S. W. 617; State v. Dale, 141 Mass. (3 Mete.) 453; Phillips v. Mo. 284, 64 Am. St. Rep. 513, 42 Com., 44 Mass. (3 Mete.) 558; S. W. 722. Larned v. Com., 53 Mass. (12 Mete.) 240. Compare: Com. v. Tuck, 37 Mass. (20 Pick.) 363; Com. v. Hope, 39 Mass. (22 Pick.) 1. 6 State V. Smith, 5 La. Ann. 340; aeter, erected for special purposes, j^^^^^ ^ ^^^^^^ gg ^a. Ann. 66. or occasions." e Com. v. McMonagle, 1 Mass. 4 Devoe v. Com., 44 Mass. (3 517. 3 Lucas V. State, 144 Ala. 63, 3 L. R. A. (N. S.) 412, 39 So. 821, "the structures that must be thus described are of temporary char- § 477 BURGLARY. 563 did steal, take and carry away," is bad on demurrer, for the reason that "store" and "shop" in the statute are not synonymous, and "shop," being descriptive of the place of the larceny, can not be rejected as sur- plusage.'' Store charged to have been burglarized, the indictment must allege the premises to be a "building," under the Missouri statute.^ "Store-house" of a designated per- son charged to have been broken and entered, is a suffi- cient description.* "A store-house commonly called a drug-store," is a proper description of the premises on the charge of burglarizing a drug-store.^" "Store-room" charged to have been broken into under a statute using the word ' ' store-house, ' ' has been held to be insufficient under the Ohio statute, and that objection is available after verdict ;^^ but under amend- ment^^ the same court holds that "a certain store-room, then and there the property of" a person named, is a sufficient description.^^ Warehouse charged to have been burglarized, it is suf- ficient to designate and describe it by that name ;i* and a description as a "granary, warehouse, and building" of a person named, "a building in which divers goods, merchandise and valuable things were then and there kept for sale and deposited," is a sufficient description of a warehouse, the word "granary" may be treated as surplusage.i^ "Warehouse-building," is a good descrip--" tion of a "warehouse," the word "building" added in no- wise changes the meaning.^® 7 state V. Canney, 19 N. H. 135. 12 Ohio Rev. Stats., (1879) 8 Com. V. McMonagle, 1 Mass. § ^835, as amended by 82 Ohio g-.i7 l/aws, p. 161. „c T^ oro 00 1^ state V. Johnson, 64 Ohio St. 9 Hale y. Com., 98 Ky. 353, 33 3^^ g„ j^ ^ 319. ^- ^- ^^- 14 Spencer v. State, 13 Ohio 401. 10 McNutt V. State, 68 Neb. 207, 15 gtate v. Watson, 141 Mo. 338, 94 N. W. 143. 42 s. W. 726. 11 Hager v. State, 35 Ohio St. le State v. Dolson, 22 Wash. 259, 268. 60 Pao. 653. 564 CRIMINAL PROCEDXJEE. §478 § 478. Ownership of premises — Necessity of allega- tion AS TO. An indictment or information charging ac- cused with having committed burglary, must allege the ownership of the premises broken and entered/ laying that possession in a person other than the accused/ where it is the entire and only description of the prem- 1 ALA.— Ward v. State, 50 Ala.- 120; Beall v. State, 53 Ala. 460, 2 Am. Cr. Rep. 463; Graves v. State, 63 Ala. 134; Thomas v. State, 97 Ala. 3, 12 So. 409; Adams V. State, 13 Ala. App. 330, 69 So. 357. CAL. — People v. Parker, 91 Cal. 91, 27 Pac. 537. CONN.— Com. V. Keena, 63 Conn. 329, 28 Atl. 522. FLA.— Pells v. State, 20 Fla. 776, 5 Am. Cr. Rep. 96; Davis V. State, 51 Fla. 37, 40 So. 179; Vicente v. State, 66 Fla. 197, 63 So. 423. ILL.— Willis v. People, 2 111. 399; Wallace v. State, 63 111. 451. IND.— McCrillis v. State, 69 Ind. 159. IOWA— State v. Morris- sey, 22 Iowa 158; State v. Jelinek, 95 Iowa 420, 64 N. W. 259; State V. Wrand, 108 Iowa 73, 78 N. W. 788. KAN.— State v. Fockler, 22 Kan. 542. LA. — Contra: State v. Clifton, 30 La. Ann. 951. MASS.— Com. v. Harnett, 69 Mass. (3 Gray) 450; Com. v. Ferris, 108 Mass. 1. MISS. — James v. State, 77 Miss. 370, 78 Am. St. Rep. 527, 26 So. 929. MO.— State v. Jones, 168 Mo. 398, 68 S. W. 566; State v. James, 194 Mo. 268, 5 Ann. Cas. 1007, 92 S. W. 679; State v. Homed, 178 Mo. 59, 76 S. W. 593. NEB.— Wins- low V. State, 26 Neb. 308, 41 N. W. 1116; Hahn v. State, 60 Neb. 489, 14 Am. Cr. Rep. 112, 83 N. W. 674, OHIO— Wilson v. State, 34 Ohio St. 199. OKLA. — State v. Simpson, (Okla. Cr.) 113 Pac. 549. ORE.— Contra: State v. Wright, 19 Ore. 258, 24 Pac. 229. W. VA.— State v. Reece, 27 W. Va. 375; State v. Hupp, 31 W. Va. 355, 6 S. E. 919. WIS.— Jackson v. State, 55 Wis. 589, 13 N. W. 448. ENG.— R. v. White, 1 Leach C. C. 552. 2 A man can not burglarize his own house is the general rule of law (see Kerr's Whart. Crim. Law, § 1019), unless he has parted with the right of entry (State v. Mish, 36 Mont. 168, 122 Am. St. Rep. 343, 92 Pac. 459; Davis v. State, 38 Ohio St. 506) ; and It may pos- sibly be, though it is not so de- clared on principle, that having a right of entry, if the owner enters for the purpose of, and with the intention of, committing a felony therein, such act will constitute burglary, for it was resolved in 8 Jacobl 1, in one of Lord Coke's most famous reports, uniformly followed alike in England and in this country, that "if a man abuse an authority given to him by law, he becomes a trespasser ab initio." — Six Carpenters' Case, 8 Co. Rep. 146, 77 Eng. Repr. 695. 1 Smith's Lead. Cas. (Hare & Wallace's ed.), pt. I, p. 274. The right of a man to enter his own house is "an authority given by law," and if he "abuse that authority" and becomes "a tres- passer ab initio" in his own house, will that fact make his act of entry "with the felonious intent" an act of burglary? It is suggested as a possibility, but not so maintained from principle. It is said, inter § 478 BDEGLAKY. 565 ises the accused is charged with having entered,' and this ownership must be alleged with reasonable cer- tainty.* It has been said that there are two reasons, only, for requiring the ownership of the premises to be alleged in an indictment or information charging burglary. First, for the purpose of showing on the record that the build- ing alleged to have been broken into and entered is not the dwelling-house of the accused, inasmuch as he can not commit the offense of burglary by breaking into his own house.^ Second, for the purpose of so identifying the property and the offense that the accused will be protected against a second prosecution or punishment for the same offense, and when the ownership is alleged to be in a person who is not the accused, and that alle- gation is proved upon the trial, the reasons for this requirement are fully met.® Ownership need not be alleged in those cases in which the premises are otherwise sufficiently described and identified'^ to meet the purposes for which the ownership is required to be alleged as above set forth,® and the ac- alia arguendo, and must be re- ership. — Davis v. State, 54 Fla. 34, garded as pure dictum, in State v. 44 So. 757. Mish, 36 Mont. 168, 122 Am. St. Grave Is opened at night and the Rep. 343, 92 Pac. 459, that "the grave-clothes are stolen, the own- unlawfulness of his intentions with ership must be laid in the executor regard to acts contemplated by or administrator of the deceased, him after entry can not, in a orim- — 2 Hale's P. C. 181. inal case, characterize his rightful ^n allegation that the hotise en- act of entry." . tered belonged to G. W. F. suffi- 3 People V. Parker, 91 Cal. 91, ciently avers the ownership.— State 27 Pac. 537. v. Fox, 80 Iowa 312, 20 Am. St. 4 Beall V. State, 53 Ala. 460, Rgp. 425, 45 N W 874 2 Am. Cr. Rep. 463; Wallace v. ^ ^^^^note 2. State, 63 111. 451; State v. Morris- „^ ^ „ ,„ ^ ^ .„ sey, 22 Iowa 158; State v. Fockler, ^ « ^tate v. Trapp, 17 S. C. 467, 22 Kan. 542; Com. v. Perris, 108 *' **"■ "^P" ®"- Mass. 1;. Jackson v. State, 55 Wis. '' State v. Wilson, 36 S. D. 416, 589, 13 N. W. 448. 155 N. W. 186. An allegation that the building 8 See, supra, this section, foot- was a. store-house, the property of notes 5 and 6, and text going there- P, is a sufficient allegation of own- with. 566 CRIMINAL PROCEDURE. § 479 cused can not be misled as to the property referred to,'* as where the premises are described by street and street number,^" and also as a designated club-house, occupied by persons to the district attorney unknown.^^ And where the indictment avers that the entry of a desig- nated public house was a trespass, the ownership of the room or building need not be specifically alleged, al- though, when known, it is safer practice to allege the own- ership.^2 Ownership unknown, that fact must be averred,^* and this will constitute a sufficient averment of ownership of premises otherwise sufficiently described.^* § 479. Sufficiency of allegation. It is sufficient allegation of ownership where it is laid in the person having the actual and visible occupancy or possession and control at the time of the breaking and entry,^ or in one having the present right to the use and occu- pancy,^ although the real ownership is in another;^ the occupancy, or the claim to the right of occupancy, being 9 People V. Rogers, 81 Cal. 209, 1116; Hahn v. State, 60 Neb. 487, 22 Pac. 592; People t. Price, 143 14 Am. Or. Rep. 112, 82 N. W. 674. Cal. 351, 77 Pac. 73. NEV. — State v. Simas, 25 Nev. 432, 10 People V. Price, 143 Cal. 351, 62 Pac. 242. OKLA. — Simpson v. 77 Pac. 73 ; State v. Clifton, 30 La. State, 5 Okla. Cr. Rep. 57, 113 Pac. Ann. 951. ' 549. TEX.— Favro v. State, 39 11 State V. Clifton, 30 La. Ann. Tex. Cr. Rep. 452, 73 Am. St. Rep. 951. 950, 46 S. W. 932, 12 State V. Mish, 36 Mont. 168, Where building o.ccupied and In 122 Am. St. Rep. 343, 92 Pac. 459. the possession of a person having 13 State V. Morrissey, 22 Iowa control thereof has some rooms 158; State v. Davis, 138 Mo. 107, let to lodgers and for other pur- 39 S. W. 460. poses, the whole of the building 14 Hamilton v. People, 24 Colo, may be considered the dwelling of 301, 51 Pac. 425. such person in whom ownership 1 ALA. — Matthews v. State, 55 should be alleged. — Hahn v. State, Ala. 65; Peck v. State, 147' Ala. 60 Neb. 487, 14 Am. Cr. Rep. 112, 100, 41 So. 759. ILL.— Smith v. 82 N. W. 674. People, 115 111. 17, 6 Am. Cr. Rep. 2 State v. Mish, 36 Mont. 168, 80, 3 N. E. 733. NEB.- Winslow 122 Am. SL Rep. 343, 92 Pac. 459. V. State, 26 Neb. 308, 41 N. W. a Webb v. State, 52 Ala. 422. §479 BUEGLAEY. 567 rightful as against the accused, although unlawful as against the person claiming title to the property.* Corporation owner of property burglarized, indictment or information must allege the ownership in the corpora- tion, not in that of a naked agent occupying the prem- ises,^ and an allegation of the corporate name is suffi- cient,® without an averment of the incorporation and right to do business,'^ which will be implied;* and when incorporation is averred,- it will be treated as surplusage, and need not be proved.® Railroad car charged to have been burglarized by ac- cused, ownership of the car must be alleged,^" and under some statutes^^ the real owner must be named, although the car was in the possession, use and control of another 4 Houston V. state, 38 Ga. 165; Smith V. People, 115 111. 17, 6 Am. Cr. Rep. 80, 3 N. E. 733; State v. Johnson, 4 Wash. 592, 9 Am. Cp. Rep. 145, 30 Pac. 672. B Emmonds v. State, 87 Ala. 12, 6 So. 54; AJdridge v. State, 88 Ala. 113, 16 Am. St. Rep, 23, 7 So. 48. Ownership laid in "Wilborn IVI. Bass, business manager of Beulah Co-operative Store of the Beulah Alliance," held to be insuflBcient in Aldridge v. State, 88 Ala. 113, 16 Am. St. Rep. 23, 7 So. 48. 6 Aldridge v. State, 88 Ala. 113, 16 Am. St. Rep. 23, 7 So. 48; Hat- field V. State, 76 Ga. 499; Com. v. Moriarty, 135 Mass. 540; Fisher v. State, 40 N. J. L. (11 Vr.) 169. "Building of the C. Company" •was held sufficient in Com. v. John- son, 19 Pa. Super. Ct. 241. Building alleged to be the office of a designated corporation held sufficient, where it was used by the corporation as its main or gen- eral office, although it had several other offices in the town. — Com. v. Moriarty, 135 Mass. 540. 7 Fisher v. State, 40 N. J. L. (11 Vr.) 169; State v. Shields, 89 Mo. 259, 1 S. W. 336. 8 Norton v. State, 74 Ind. 337. 9 Crawford v. State, 68 Ga. 822. 10 Graves v. State, 63 Ala. 143 ; Johnson v. State, 73 Ala. 483; Cooper V. State, 89 Ga. 222; 15 S. E. 291; Darter v. Com., 9 Ky. Law Rep. 277, 5 S. W. 48; James V. State, 77 Miss. 370, 78 Am. St. Rep. 527, 26 So. 929 ; State v. Ellis, 102 Miss. 541, 59 So. 841; State v. Davis, 138 Mo. 107, 39 S. W. 460. "Goods in car l '"'• ' f ^- % f P-f ^^ '' ' estate V. Johnson, 35 La. Ann. 6 Jackson v. State, (Tex. Cr.) g^g. 71 S. W. 280. 5 state v. Sowell, 85 S. C. 278, 1 There is no prejudice to insert 67 S. E. 316. In the indictment the name of the 6 State v. Kelly, 66 N. H. 577, defendant in a count where it had 29 Atl. 843. been inadvertently omitted.— State i State v. Rogers, 40 Mont. 248, v. Coover, 69 K9,n. 382, 76 Pac. 845. 106 Pac. 3. 580 CRIMINAL PROCEDUEE. § 492 charges burglary with intent to commit a felony, but fails to set out what particular felony was intended,^ it is demurrable for insufficiency; a failure to demur is not a waiver of the objection.? Where the venue is not prop- erly laid so as to give the court into which indictment is returned jurisdiction to try the accused on the charge, objection may be taken on motion in arrest of judgment, although no demurrer was interposed.* 2 See, supra, § 465. 4 People v. Webber, 133 Cal. 623, 3 People T. Nelson, 58 Cal. 104. 14 Am. Cr. Rep. 142, 66 Pac. 38. CHAPTER XXX. INDICTMENT — SPECIFIC CBIMBS. Champerty and Maintenance. § 493. In general. § 494. Indictment — At common law. § 495. Under statute. § 496. Conclusion. § 493. In genebal. A distinction is drawn between "barratry" and "champerty and maintenance," and for that reason we have treated the two offenses separately.^ The former offense consists in frequently exciting or stirring up suits and quarrels, either at law or other- wise,^ while the latter offense is the unlawful maintain- ing or prosecution of a suit, in consideration of a bargain or contract to have part of the thing in dispute, or some profit out of it,^ and was not only an offense at common law,* but was considered, in the earliest times and in all 1 As to "barratry," see, supra, every maintenance is not cham- §§ 441-443. perty.— 2 Inst. 208. 2 4 Bl. Com. 134; 4 Steph. Com. 4 Martin y. Clarke, 8 R. I. 389, 5 262; Co. Litt. 368. Am. Rep. 586. 3 4 Bl. Com. 135; Co. Lltt. 368b; LordCoke commenting on Fitzh. Nat. Brev. 172; Hawk. P. C. Westm. I, ch. 25, the first English b. I, ch. 84; 2 Inst. 208; Reg. Orlg. statute on the subject, says that 183; Stat. Westm, I, ch. 25; Key it was against the common law V. Vattier, 1 Ohio 132; Weakly v. maxim "culpa est immiscere se Hall, 13 Ohio 175. rei ad se non pertinenti" (it is Distinction between champerty culpable conduct for a man to and maintenance consists in this: meddle with a thing not belonging Where there Is no agreement to to or concerning him), and this divide the thing regarding which other, "pendente lite nihil inno- the suit ia brought, the party in- vatur" (pending the suit nothing termeddling is guilty of mainte- should be changed), and cites nance only; where there is a bar- Bracton, who wrote before the gain or contract to receive part enactment of Westm. I, oh. 25, to of the thing in suit, the offense is show that it was one of the arti- champerty. 4 Chltty's Bl. Com. cles inquirable by the justices in 135. Eyre, before the reign of Edward I, Lord Coke's rule is: Every whether suits had been stirred champerty is maintenance, but up by certain officers by which (581) 582 CRIMINAL PROCBDUKB, §493 countries, as an offense of great mischief to the public.^ The crime was indictable at common law, and still is in some of the states of the Union.® In American states the common-law doctrine of cham- perty and maintenance, as defined by Blackstone, became a part of the law of the land in the original thirteen col- onies and those states of the Union'^ which adopted the common law* as the basis of their jurisprudence,^ ex- cept in those of the colonies and states in which the courts have declared that the common-law doctrine of cham- perty and maintenance is not applicable to their circum- stances,^" among these Oalifornia,^^ lowa,^^ Vermont,^^ justice and trutli might be sup- pressed or delayed. See 2 Inst. 208. Distinction between attorney and advocate drawn by New Jer- sey court, and common-law doc- trine of champerty held not to apply to the former either in "le- gal history or adjudicated cases." — Schomp V. Schenck, 40 N. J. L. (11 Vr.) 195, 29 Am. Rep. 219. 5 Stanley v. Jones, 7 Benj. 369. GNewkirk v. Cone, 18 111. 449; Wright V. Meek, 3 Greene (la.) 472; Brown v. Beauchamp, 21 Ky. (5 T. B. Mon.) 413, 17 Am. Dec. 81 ; Thurston v. Perceval, 18 Mass. (1 Pick.) 415; Key v. Vattier, 1 Ohio 132; Douglass v. Wood, 31 Tenn. (1 Swan) 393; McMullen v. Guest, 6 Tex. 275; Danforth v. Streeter, 28 Vt. 490. See, also, Kerr's Whart. Crlm. L., §2212. 7 But whether to the extent of being punishable as a crime or only as Invalidating contracts, which at common law were cham- pertous, it is not necessary in this place to stop to inquire. sScobey v. Ross, 13 Md. 117; Duke V. Harper, 66 Mo. 51, 27 Am. Rep. 314; Martin v. Clarke, 8 R. I. 389, 5 Am. Rep. 586. 9 See Bayard v. McLane, 3 Harr. (Del.) 139, 212; Thompson v. Rey- nolds, 73 111. 11; Lathrop v. Am- herst Bank, 50 Mass. (9 Mete.) 490; Backus v. Byron, 4 Mich. 535; Benedict v. Stuart, 23 Barb. (N. Y.) 421; Ogden v. Des Arts, 4 Duer. (N. Y.) 283; Dahms v. Sears, 13 Or. 47, 11 Pac. 891; Allard v. Lamaronde, 29 Wis. 502. 10 See Richardson v. Rowland, 40 Conn. 565; Duke v. Harper, 66 Mo. 51, 27 Am. Rep. 314. 11 Mathewson v. Fitch, 22 Cal. 86; More v. Massinni, 32 Cal. 590, 595; Hoffman v. Vallejo, 45 Cal. 564; Lucas v. Pico, 55 Cal. 126. 12 Contracts held In contraven- tion of public policy and can not be enforced. — Wright v. Meek, 3 Greene (Iowa) 472. See Boardman v. Thompson, 25 Iowa 488; Adye v. Hanna, 47 Iowa 264, 29 Am. Rep. 484; Langan v. Sankey, 55 Iowa 52, 7 N. W. 393; Hyatt V. Burlington, C. R. & N. R. Co., 68 Iowa 662, 27 N. W. 815. 18 Danforth v. Streeter, 28 Vt. 490. §§494,495 CHAMPEETT AND MAINTENANCE. 583 and perhaps others ; while in still other of the states of the Union the doctrine is supplanted by statute, as in Connecticut,^* Illinois,^" Kentucky,^® Maine,^^ New York,!^ Texas,^* and perhaps elsewhere. .§ 494. Indictment — At common law. The distinction between champerty and maintenance has already been pointed out, as has also the fact that all chaniperty is maintenance, but that every maintenance is not cham- perty.* An indictment for maintenance may allege that, at a certain time and place, the accused did unjustly and unlawfully maintain and uphold a certain suit which then was depending in a named court, describing it, and setting forth the particular acts of accused which are complained of, contrary to the policy of the law, or if under the statute, contrary to the statute in such case made and provided, and to the manifest hindrance and disturbance of justice, and in contempt, etc., and against the peace and dignity, etc.^ § 495. Undee statute. An indictment under the New York statute, against an attorney charging him with buying a promissory note need not allege that the note was purchased with intent to institute and prosecute suit thereon;* nor is it necessary to allege that a prosecu- tion has been begun ; neither need the date, amount, nor time of maturity of the note be alleged.^ 14 Richardson v. Rowland, 40 i See, ante, § 493, footnote 2. Conn. 565. 2 This is substantially the form i5Newkirk v. Cone, 18 111. 449; ^f chltty. See 2 Chit. Crim. Law, Thompson v. Reynolds, 73 111. 11 p 234. (although not contained in crim- -i u 1 j * -n i. j. /. f . J. .. ^, . Elaborated forms will be found Inal code, indictable). 16. Davis V. Sharron, 54 Ky. (15 B. Mon.) 64. 17 Low V. Hutchinson, 37 Me. jgg 1 People V. Walbridge, 6 Cow. 18 Sedgwick v. Stanton, 14 N. Y. (N. Y.) 512. 289. 2 People v. Walbridge, 6 Cow. 19 Bentinck v. Franklin, 38 Tex. (N. Y.) 512. 458. In R. V. Langrish, Tremaine P. C. 176, and R. v. Price, Id. p. 177. 584 OEIMINAL PBOCEDUEB. § 496 § 496. Conclusion. In this coTintry, where prose- cution is at common law, the conclusion need not be "against the form of the statute," etc., notwithstanding the fact that the offense was prohibited by various Eng- lish statutes,^ on pain of fine and imprisonment, because those old statutes formed a part of the common law, in so far as applicable, adopted into this country. Where the prosecution is under statute, and the act complained of comes within the provisions of two separate statutes, the conclusion may be simply "contrary to the form of the statute," in the singular.'' 1 See Westm. I, ch. 25; 1 Edw. 2 People v. Walbridge, 6 Cow. ni, ch. 14; 20 Edw. Ill, ch. 4; 1 (N. Y.) 612. Rich, n, ch. 4; 32 Hen. VIII, ch. 9. CHAPTER XXXI. INDICTMENT — SPECIFIC CRIMES. Chattels, Selling or Removing Mortgaged. § 497. In general — ^Venue. § 498. Selling mortgaged chattels. § 499. Eemoving mortgaged chattels. § 500. Concealing mortgaged chattels. § 501. Description and value. § 502. Variance. "§ 497. In gbnekal — ^Vbntje. The statutes in the vari- ous states making it a criminal offense, and prescribing punishment, to sell or remove or conceal mortgaged per- sonal property, or property partaking. of the nature of real property but subject of a chattel mortgage, among which species of property may be classed unplanted^ 1 ATjA.. — Jones V.Webster, 48 Ala. 109; Rees v. Coats, 65 Ala. 256; Gaston v. Marengo Imp. Co., 139 Ala. 465, 36 So. 738; Winston v. Farrow, 40 So. 53. ARK.— Jar- ratt V. McDaniel, 32 Ark. 598; Bell V. Radcliff, 32 Ark. 620. CAlc. — ^Argus V. Wasson, 51 Cal. 620, 21 Am. Rep. 718; Lemon v. Wolff, 121 Cal. 272, 53 Pac. 801; Wllkerson v. Thorp, 128 Cal. 221, 60 Pac. 679. IND.— Headrick v. Brittain, 63 Ind. 438. IOWA— Wheeler v. Becker, 68 Iowa 723, 28 N. W. 40; Norris v. Hix, 74 Iowa 524, 38 N. W. 395. MINN.— Minnesota Linseed Oil Co. v. Ma- ginnls, 32 Minn. 193, 20 N. W. 85; Ambuehl v. Matthews, 41 Minn. 537, 43 N. W. 477; Hogan v. At- lantic Elevator Co., 66 Minn. 344, 69 N. W. 1. MISS. — Everman v. Robb, 52 Miss. 653, 24 Am. Rep. 682; McCown v. Mayer, 65 Miss. 537, 5 So. 98; Stadeker v. Loeb, 07 Miss. 200, 6 So. 687. NEB.— Sporer v. McDermott, 69 Neb. 533, 96 N. W. 232. N. C— Robinson v. Ezzell, 72 N. C. 231; Harris v. Jones, 83 N. C. 317; Rawlins V. Hunt, 90 N. C. 270; Rountree v. Britt, 94 N. C. 104. N. D.— Hos- tetter v. Brooks Elevator Co., 4 N. D. 357, 61 N. W. 49; Schweln- ber V. Great Western Elevator Co., 9 N. D. 113, 81 N. W. 35. OKLA.— Eckles v. Ray, 13 Okla. 541, 75 Pac. 286. TENN.— Colk v. Foster, 66 Tenn. (7 Baxt.) 98; Watkins v. Wyatt, 68 Tenn. (9 Baxt.) 250, 30 Am. Rep. 63. FED. — Ellett V. Butt, 1 Woods 214, Fed. Cas. No. 4384, affirmed 86 U. S. (19 Wall.) 544, 22 L. Ed. 183. Contra: Hirst v. Bell, 72 Ala. 336; Hutchinson v. Ford, 72 Ky. (9 Bush) 318, 15 Am. Rep. 711; Everman v. Robb, 52 Misa. 653, 24 Am. Rep. 682; Cudworth v. (585) 586 CRIMINAL PROCEDURE. §497 or growing^ or matured^ crops, are as variant, almost, as the states themselves ; the particular provisions of any- particular statute must be carefully consulted in apply- ing the rules set forth in this subdivision. Acknowledgment and filing of mortgage for record is required to be alleged in an indictment charging sale, removal or concealment of mortgaged chattels, according to the rule in some of the cases,* while in others it is held not necessary either to allege or prove that the mortgage was recorded or filed for record.^ Scott, 41 N. H. 456; Milliman v. Neher, 20 Barb. (N. Y.) 37. Crop must come into existence or be acquired by mortgagor be- fore mortgage lien attaches. — Mc- Master v. Emerson, 109 Iowa 284, 80 N. W. 389. In Missouri possession must be taken by mortgagee before mort- gage lien will attach. — Littlefield V. Lemley, 75 Mo. App. 511. In North Dakota limited to crop next maturing. — Schweinber v. Great Western Elevator Co., 9 N. D. 113, 81 N. W. 35. Yearly crops for indefinite pe- riod inoperative as against bona fide purchasers in subsequent years. — Shaw v. Gilmore, 81 Me. 396, 17 Atl. 314. 2 ALA. — ^Adams v. Tanner, 5 Ala. 740; Robinson v. Maudlin, 11 Ala. 977; Lehmon v. Marshall, 47 Ala. 362; Booker v. Jones, 55 Ala. 266. CAL. — Simpson y. Ferguson, 112 Cal. 180, 44 Pac. 484; Wilkerson V. Thorpe, 128 Cal. 221, 60 Pac. 679. ILL. — Hansen v. Dennison, 7 111. App. 73. MINN.— State v. Williams, 32 Minn. 537, 21 N. W. 746; Clare v. Hodges, 44 Minn. 204; 46 N. W. 335. MISS.— Cayce V. Stovall, 50 Miss. 396; Betts v. Ratcliff, 50 Miss. 561. N. Y.— Nestell V. Hewitt, 19 Abb. N. C. 282 (hay to be grown from roots in ground). N. C. — Robin- son V. Ezzell, 72 N. C. 231; Cot- ten V. Willoughby, 83 N. C. 75, 35 Am. Rep. 564; Rawlins v. Hunt, 90 N. C. 270. PA.— Fry v. Miller, 45 Pa. St. 441. TBNN.— William- son v. Steel, 71 Tenn. (3 Lea) 527, 31 Am. Rep. 652. TEX.— Cook v. Steel. 42 Tex. 53. Contra: Hardeman v. State, 16 Tex. App. 1, 49 Am. Rep. 821. Is "growing crop" when seed is put in ground. — ^Wilkinson v. Ket- ler, 69 Ala. 435; Cotten v. Wil- loughby, 83 N. C. 75, 35 Am. Rep. 564. Compare: Comstocks v. Scales, 7 Wis. 159. 3 Hamilton v. State, 94 Ga. 770, 21 S. E. 995. See Grangers' Busi- ness Assn. v. Clark, 84 Cal. 201, 23 Pac. 1081; Sllberger v. Trilling, 82 Tex. 523, 18 S. W. 591. 4 state v. Harberson, 43 Ark. 378. 5 Barnett v. State, 65 Ark. 80, 44 S. W. 1037. § 498 SELLING, ETC., MORTGAGED CHATTELS. 587 Language of the statute, or its equivalent,' may be followed in the indictment or information, even tliougli it involves a disjunctive allegation, e. g., "did sell, re- move or conceal."^ Mortgage may be set out in hcec verba, or according to tenor and effect; but strict exactness in setting forth by- tenor must be met by strict exactness of proof.^ Ownership of the debt secured by the chattel mortgage should be set forth ; but laying title in the administrator of a deceased mortgagee, instead of in his heirs, has been held not to render the indictment defective.* And in a case where the chattel mortgage is executed to a person as the trustee for another, to whom the debt secured is owing, it is sufficient to allege that such person acting as trustee is the legal owner of the mortgage, without alleg- ing that he is the real holder of the debt secured. '^^ Venue is required to be laid in the county in which the crime occurred, is a general rule of criminal pleading, and in a prosecution charging the fraudulent sale of mortgaged property, the action must be brought in the county in which the fraudulent sale was made, not in the county in which the mortgage was given, or the county from which the property was brought." § 498. Selling moetgaged chattels.^ An indictment or information charging that accused sold or otherwise disposed of designated property alleged to have been mortgaged to another, must also allege that the mort- 6 "Did run" in place of statutory App. 1, 49 Am. Rep. 821; Thomas "remove" lield good. — Williams v. v. State, 18 Tex. App. 213. State, 27 Tex. App. 258. 11 S. W. » gt^te v. Maxey, 41 Tex. 524. 114 ^'■Kr- 0*0*- cc Ai„ ion a„- 10 Stewart v. State, 60 Tex. Or, 7 Nixon V. State, 55 Ala. 120. See „ „„ „. „ _' a*„*„ en Aio ifti ^ep. 92, 131 S. W. 329. Glenn v. State, 60 Ala. 104. "Did sell, barter, or otherwise n Robberson v. State, 5 Tex. dispose of" bad for uncertainty in ^VV- 502. Arkansas. — Cooper v. State, 37 i For forms of indictment for Ark. 412. selling mortgaged chattels, see 8 Hardeman v. State, 16 Tex. Forms Nos. 628-633. 588 CBIMESTAIi PROCBDUEB. §498 gage was a valid one,* was a subsisting lien' and unpaid* at the time the fraudulent sale is alleged to have been made,® and that the sale was made without the consent® — under some statutes, written consent,'' under other stat- utes, of the owner and holder of the debt secured by the mortgage, and under some statutes the manner of dispo- sition must be alleged,* — but the name of the purchaser or transferee need not be set out.* It seems that it is not necessary to allege that the accused owned the prop- erty or that he had a mortgageable interest therein.^" Where the charge is the sale of property that had been conditionally mortgaged, the indictment or information 2 Satchell v. State, 1 Tex. App. 438. An averment that accused sold property falsely representing it to be free from liens and encum- brances, be well knowing that the property was not free from liens and encumbrances, but that a designated corporation held a chattel mortgage on the property to secure the payment of a speci- fied sum, is sufficient as a basis to show a valid chattel mortgage held by the designated corpora- tion. — Keyes v. People, 100 111. App. 163. Charging that accused "hereto- fore, to wit, on a named date, executed and delivered to the said A a valid mortgage In writing," is a suSacient allegation that ac- cused executed and delivered a valid mortgage to A previous to the alleged fraudulent sale. — Haile v. State, (Tex. Cr. Rep.) 43 S. W. 999. s Satchell v. State, 1 Tex. App. 438. 4 State V. Gustarfson, 50 Iowa 194; State v. Hughes, 38 Neb. 366, 56 N. W. 982; State v. Peckham, 79 N. C. 652; State v. Burns, 80 N. C. 376; Satchell v. State, 1 Tex. App. 438. Existence of debt, as to suffi- ciency of allegation of, see Os- borne V. State, 109 Ark. 440, 160 S. W. 215. 5 Existence of mortgage debt necessary to lien. — McCaskill v. State, 68 Ark. 490, 60 S. W. 234. As to unpianted crop mortgaged, see, infra, this section, footnote 20 and text going therewith. 6 Consent sufficient; written consent not necessary to author- ize sale. — State v. Pepin, 22 Ind. App. 373, 53 N. E. 482; State v. Munsen, 72 Mo. App. 543. 7 State V. Hughes, 38 Neb. 366, 56 N. W. 982. 8 state V. Peckham, 79 N. C. 652; State v. Burns, 80 N. C. 376. Contra: Richter v. State, 4 Ga. App. 274, 61 S. B. 147, wherein it is held that the Indictment need not specifically set out how the property was disposed of, to whom disposed of, or how loss was sus- tained by the mortgagee. 8 See this section, footnote 22 and text going therewith. 10 State V. Williams, 32 Minn. 537, 21 N. W. 746. § 498 seijUNg, etc., mortgaged chattels. 589 must allege tliat the mortgage liad become absolute by the happening of the designated condition before the sale, or it will be insufficient.^^ Duplicity can not be successfully urged against an in- dictment or information alleging that accused did "sell and dispose of, to one A, and to divers other persons" not known to the grand jury "the personal property de- scribed in said mortgage, to wit, four thousand bushels of No. 2 wheat," for the reason that but one sale is charged — one sale to divers persons, not divers gales to divers persons.^^ Fraudulent intent is the gist of the offense, and must be sufficiently averred^^ and proved,^* but it need not be specifically alleged that the act was done with intent to defraud, although such intent is necessary to make the offense complete.^^ Thus, it has been held that an infor- mation charging accused with having sold mortgaged property without notification to the mortgagee, or giving information of the existence of the mortgage to the pur- chaser, need not charge an intent to defraud,^® and that where such intent is specifically charged it may be re- garded as surplusage.^'' Growing crop,^^ or prospective crop before planted,^* we have already seen, may be mortgaged. Where a mort- gage is executed upon a prospective crop as yet un- planted, indictment or information must allege this fact, that accused thereafter planted or had the crop planted, 11 state V. Devereux, 41 Tex. n Satcliell v. State, 1 Tex. App. 383. 438. 12 State V. Williams. 32 Minn. " State v. Kurds, 19 Neb. 316, 537 21 N W 746 ^7 N. W. 139. 5d7, 11 JN. w. no. 16 People t. Wolfrom, 15 Cal. 13 "Dispose of" IS a sufficient ^^^ ^^^^ ^^g p^^ ^^gg. p^^pj^ ^ description of the intent in Arkan- j^^^^ 34 Cal. App. 627, 142 Pac. sas (under Sand. & H. Dig. § 1868), -^-^rj when there is an allegation in the 17 people v. Iden, 24 Cal. App. Stating part that accused sold the 627, 142 Pac. 117. property. — State v. Crawford, 64 is See, supra, § 497, footnote 2. Ark. 194, 41 S. W. 425. is See, supra, § 497. footnote 1. 590 CRIMINAL PROCEDURE. § 499 and that when gromng or grown the said mortgage be- came a lien thereon, and that accused fraudulently dis- posed of such crop after the mortgage lien attached.^" Where an indictment or information charges accused exe- cuted a chattel mortgage on designated acres of a grow- ing crop, naming it, to secure a debt, and without the consent of the mortgagee, sold all the crop raised on the designated acreage, with intent to defraud, is insuffi- cient because it fails to sufficiently describe the property alleged to have been mortgaged and sold.^' Name of purchaser or transferee need not be set out in an indictment or information charging sale or other disposition of mortgaged property. ^^ § 499. Ebmoving mortgaged chattels.^ According to the general rule, an indictment or information charging fraudulent removal of mortgaged chattels with intent to defraud the mortgagee should contain all the averments, — as validity of mortgage, existence of lien, and nonpay- ment of debt at the time of the alleged removal, — required in an indictment or information for selling mortgaged chattels f but there are authorities to the effect that in- dictment need not allege that the mortgage was in writ- ing,^ or contain any description or special mention of the 20 Mooney v. State, 25 Tex. App. v. State, 27 Tex. App. 94, 10 S. W. 31, 7 S. W. 587. 764; Armstrong v. State, 27 Tex. 21 Hampton v. State, 124 Ga. 3, App. 462, 11 S. W. 462. 52 S. E. 19. Contra: Presley v. State, 24 As to description of property, Xex. App. 494, 6 S. W. 540, cited see, infra, § 501. post, on "Variance," this title. 22 State V. Crawford, 64 Ark. , ^^ ^^ ^^^^^ ^^ indictment for 194, 41 S. W. 425; Richter v. State, .^moving mortgaged chattels, see 4 Ga. App. 274, 61 S. E. 147; State ^^^^^ ^^^ gg^.gg^ V. Hughes, 38 Neb. 366, 56 N. W, 982; State v. Pickens, 79 N. C 2 See, ante, § 498, footnotes 2-4. 652; State v. Burns, 80 N. C. 376; 3 Wilson v. State, 43 Neb. 745, State V. Perry, 87 S. C. 535, 70 S. 62 N. W. 200. B. 304; Smith v. State, 26 Tex. Contra: Maye v. State, 9 Tex. App. 577, 10 S. W. 218; Alexander App. 88. § 500 SELLING, ETC., MORTGAGED CHATTELS. 591 mortgage,* that it was recorded or filed for record, *" that the mortgagee was the owner of the debt secured by the mortgage,® or state the value of the property at the time of the removal.'^ Under those statutes providing removal shall not be made without immediately paying the mortgage debt and thus discharging the lien, where the indictment or information fails to state that accused did not immediately discharge the mortgage lien, it is in- sufficient because it fails to state an offense.® Language of statute may be followed in describing offense," or language of equivalent import may be used. Thus, under "the Texas statute, making it criminal to "remove" mortgaged chattels from the county, an alle- gation that accused "run" the mortgaged property out of the county, was held to be sufficient.^" § 500. Concealing moetgaged chattels. An indict- ment or information -charging the statutory offense of concealing mortgaged chattels with intent to defraud the mortgagee need not allege the specific means employed for such concealment.^ When the indictment or infor- mation charges concealing or aiding in the concealment of mortgaged property, the words "aiding" and "con- cealment" will be rejected as surplusage, because accused 4 Nixon V. State, 55 Ala. 120. he does not own, and may prose- 5 Bamett v. State, 65 Ark. 80, cute for fraudulent removal. See 44 S. W. 1037. Stewart v. State, 60 Tex. Cr. Rep. Allegation of removal from 92, 131 S. W. 329. county where "recorded," ia sur- 7 Wilson v. State, 43 Neb. 745, plusage under statute making it a 62 N. W. 200. crime to remove from county g Polk v. State, 65 Wis. 433, 4 where lien created. — ^Hampton v. g^j g^Q 9 See, ante, § 497. State, 67 Ark. 266, 54 S. W. 746. 6 Wilson V. State, 43 Neb. 745, 62 N. W. 200. ^° Williams v. State, 27 Tex. Compare: Maye v. State, 9 Tex. App. 258, 11 S. W. 114. App. 88. 1 State v. Taylor, 90 Kan. 438, Trustee holds legal title in mort- 133 Pac. 861. See Rlchter v. State, gage for security of debt, which 4 Ga. App. 274, 61 S. B. 147. 592 CRIMINAL PROCEDURE. § 501 can be convicted of concealing tlie property on proof that lie aided in so doing.^ § 501. Desckiption and value. The indictment or in- formation should contain a full and definite description of the property alleged to have been fraudulently sold, removed, or concealed — as the case may be; such as would enable an officer with a writ to locate and identify the property. Thus, it has been held that an indictment describing the property as "twelve acres of cotton," without further description of the property, is bad for want of a sufficient description of the property mort- gaged.^ In a case where the property mortgaged is incor- rectly described in the mortgage, an indictment or infor- mation charging the fraudulent sale, etc., of such property should allege the description as contained in the mortgage, aver that this description was incorrect, set- ting out wherein it was incorrect, and then allege the true description of the mortgaged property.^ Where the in- dictment or information does not set out the chattel mort- gage in hsec verba, or according to tenor, but alleges that certain fully described personal property was then and there under the lien of a valid chattel mortgage, in writing, executed by the accused, on a date named, to a specified corporation, firm or individual; that accused thereafter sold said property, the said chattel mortgage being then and there a valid lien on said property, and owned by the corporation or firm or individual named as mortgagee, is sufficient, not being open to the ob- jection that it does not sufficiently describe the mort- gaged property.^ Fraudulent concealment of mortgaged property being charged, which was described as con- 2 Com. V. Wallace, 108 Mass. 12. 2 Coleman v. State, 21 Tex. App. As to sufficiency of description 520, 2 S. W. 859. of property mortgaged, see. Infra, i 501. 1 Hampton v. State, 124 Ga. 3, 52 S. B. 19. 3 Jones V. State, 35 Tex. Cr. Rep. 565, 34 S. W. 631. § 502 SELLING, ETC., MORTGAGED CHATTELS. 593 sisting of "a large quantity of ready-made clothing, the whole of the value of five hundred dollars ; a large quan- tity of dry goods, the whole of the value of five hundred dollars ; and a large quantity of hats and caps, the whole of the value of five hundred dollars — ^which said property the grand jurors can not more particularly describe," and alleging that the goods described belonged to A, who had mortgaged the same, giving the mortgage — the description of the property was held to be sufficient and the indictment valid.* Value of mortgaged chattels charged to have been sold or removed or concealed is required to be alleged under some statutes, and especially is this true where the stat- ute^ provides that where the property is under a named value a designated punishment shall be inflicted, and where the value is over the designated amount another and greater punishment shall be inflicted — thereby pro- viding two distinct offenses, with different punishments attached, distinguishable by the value of the property involved.® In the absence of such a provision and dis- tinction in the grade or degree of punishment to be in- flicted on conviction, value need not be alleged in the indictment or information'^ or found by the jury.* § 502. Vaeiance. An indictment or information charg- ing concealing, disposing of or removing mortgaged chattel property with the intent to defraud the mort- gagee, should set out particularly the specific offense, and the exactness in setting forth must be met with the same exactness in the proofs or there will be a fatal variance. Thus, under an indictment or informa- tion charging fraudulent removal and concealment of 4 Com. V. Strangford, 112 Mass. t Wilson v. State, 43 Neb. 745, 280. 62 N. W. 200; State v. Ladd, 32 5 As S. C. Crlm. Code, 1902, N. H. 110. § 337. 8 State v. Ladd, 32 N. H. 110. 6 State V. Perry, 87 S. C. 535, 70 i See, supra, § 497, footnote 8 S. E. 304. and text g61ng therewith. I. Grim. Proo. — 38 594 CRIMINAL PROCEDURE. § 502 mortgaged chattels, the only question involved and sub- mitted to the jury being whether the accused was guilty of removing and concealing such property, a conviction of disposing of mortgaged property is not warranted and can not be sustained.^ In those states where the name of the person to whom mortgaged chattels were sold is required to be set forth,^ an allegation that the property was disposed of "to a person unknown to the grand jury," is insufficient where the evidence shows that the name was known or could have been ascertained by the exercise of slight diligence.* Describing the property mortgaged, without setting out the mortgage in hfec verba but according to its tenor ,^ though not as fully as in the mortgage, the latter is ad- missible in evidence;^ and the fact that the mortgage covers more property than is alleged to have been dis- posed of, does not constitute a variance.'' Describing mortgage as having been executed by the accused, the fact that it was executed by accused and another does not constitute a variance f and neither does the fact that the instrument was a trust deed instead of a mortgage,^ or the fact that the mortgage was executed to the designated person as a trustee.^" Where the de- scription charged the debt secured was a note signed by accused and his wife, and the note offered in evidence was signed by accused alone, this was held not to consti- tute a variance.^^ 2 state V. Miller, 255 Mo. 223, 9 Osbome v. State, 109 Ark. 440, 164 S. W. 482. 160 S. W. 215. 3 See, supra, § 498, footnote 22. lo Sweat v. State (Tex. Cr. 4 Presley v. State, 24 Tex. App. Rep.), 59 S. W. 265. See Stewart 494, 6 S. "W. 540. v. State, 60 Tex. Cr. Rep. 92, 131 6 See, supra, § 497. S. W. 329. « Glass V. State, 23 Tex. App. The word "trustee" does not 425, 5 S. W. 131. affect the mortgage, or change the 7 Jones V. State, 35 Tex. Cr. relation of the parties. — Sweat v. Rep. 565, 34 S. W. 631. State (Tex. Cr. Rep.), 59 S. W. 8 Nixon V. State, 55 Ala. 120; 265. State V. Perry, 87 S. C. 535, 70 ii Stat© v. Miller, 74 Kan. 667, S. B. 304. 87 Pac. 723. § 502 SELLING, ETC., MORTGAGED CHATTELS. 595 Disposing of property subject to two mortgages, being charged, both of which were alleged to have been exe- cuted by the accused, is supported by evidence of a chattel mortgage executed by accused and another and defendant as manager of a company, and another mort- gage executed by a company and the accused in his indi- vidual capacity and as treasurer of a company ;^^ and a failure of the evidence to show an unlawful dispo- sition under one of the chattel mortgages will not war- rant an acquittal where there is evidence tending to show an unlawful disposition under the other chattel mortgage.^* Description of live stock mortgaged which sets out the age, brand and color of the animal or animals, being descriptive of the identity of the animals, such descrip- tions are material, and must be established by the proof.^* Thus, it has been held that a charge describing the mortgaged property as "one bull five years old," is not supported by evidence that the accused sold "a red but-headed bull."^® But a charge that two cows and two calves were sold while subject to the lien of a chattel mortgage is sustained by a mortgage covering the two cows, for the reason that the offspring of mortgaged stock, born after the execution of the mortgage, are sub- ject to the lien of the mortgage.^^ 12 state V. Boyer, 86 S. C. 260, is Gibson v. State, 16 Ga. App. 68 S. E. 573. 265, 85 S. E. 199. ^ 13 Id. 16 Dyer v. State, 88 Ala. 225, ?■ 14 Coleman v. State, 21 Tex. S. W. 267. App. 520, 2 S. W. 850. r CHAPTER XXXn. INDICTMENT SPECIFIC CRIMES. Common Scold. § 503. In general. § 504. Form and sufBcieney of indictment. § 505. Anger and malice. § 506. Allegation of specific acts. § 507. Joinder of defendants. § 503. In general.^ The offense of being a common scold was indictable at common law^ and is indictable in a few of the states of the Union ;* and for that reason is given treatment here. It is to be noted, however, that the punishment now inflicted is that for a minor public nuisance,* and not the old punishment of the ducking stool. § 504. Form and sufficiency of indictment. Accord- ing to the old rule, an indictment or information charg- ing this offense must allege that at a stated time in a given place, the accused was a common scold,i to the 1 As to form of indictment, see 4 Kerr's Whart. Crim. Law, Form No. 638. §1713. 2 See Kerr's Whart. Crim. Law, § 1713. 1 Com. V. Hutchins, 5 Pa. L. J. 321; Com. v. Pray, 30 Mass. (13 Pick.) 359; Baker v. State, 53 In Com. V. Hutchinson, 5 Clark n. J. L. (24 Vr.) 45, 20 Atl. 858; (Pa.) 321, 3 Am. L. Reg. 113, United States v. Royall, 3 Cr. Judge Galbraith denied the indicta- C. C. 618, Fed. Cas. No. 16201; billty of a common scold, on the R. v. Foxby, 6 Mod. 11, 87 Eng. ground of the uncertainty of the Repr. 776; R. v. TJrlyn, 2 Wm. punishment to be inflicted; but Saund. 308, 85 Eng. Repr. 1107; this holding has been overruled in ^- v- Hardwick, 1 Sid. 282, 82 Eng. Com. V. Mohn, 52 Pa. St. 243, 91 ^^P""- ^^^''' ^- "■ hooper, 2 Str. Am. Dec 153. ^2^^' ^^ ^'^^^ ^^^'- ^^^'^- ^- "■ Taylor, 2 Str. 849, 93 Eng. Repr. 3 By fine and imprisonment.— gg^. j- Anson v. Stuart, 1 T. R. James v. Com., 12 Serg. & R. (Pa.) 745^ 99 Eng. Rep. 1357. 236; Com. v. Mohn, 52 Pa. St. 243, Compare: Com. v. Mohn, 52 Pa. 91 Am. Dec. 153. St. 243, 91 Am. Dec. 153. (596) § 504 COMMON SCOLD. 597 common nuisance of the public* The technical term "common scold" was required to be used; no other form of expression could be substituted therefor.* Modern liberality in criminal pleading is making seri- ous inroads into the staid and musty forms of the com- mon law requiring strict technical allegation in strict technical words, and it is highly probable that an indict- ment or information not containing the technical phrase, "common scold," but framed in such appropriate lan- guage as showed that at the time and place named ac- cused was a common scold and a public nuisance, would be upheld,* when the charge showed the place to be a public place and the offensive language used within the hearing of citizens present, and to their great annoy- ance ;® but the careful and conservative pleader will not omit the time-honored technical phrase, notwithstanding the fact that there are parallel cases in which formal technical words and phrases formerly necessary have been held to be immaterial in charging burglary,* mur- der,'' rape,* robbery,* and so forth. 2 Baker v. State, 53 N. J. L. held In Com. v. Mohn, 52 Pa. St. (24 Vr.) 45, 20 Atl. 858; Com. v. 243, 91 Am. Dec. 153, citing Bar- Mohn, 52 Pa. St. 243, 91 Am. Dec. ker v. Com., 19 Pa. St. 413; but 153; R. T. Cooper, 2 Str. 1246, 93 the reasoning of the court seems Eng. Repr. 1160. to place the ruling on the ground Indictment need not lay the that the acts described constituted offense ad noncumentum omnium a public nuisance. ligeonim, etc., but that diversorum s gee Com. v. Linn, 158 Pa. St. Is sufficient, for the reason that 22, 22 L. R. A. 353, 27 Atl. 843. it appears from the nature of the e Mully v. Com. 45 Mass. (4 offense that it could not be a com- i^g^p j 357 mon nuisance. — 2 Hawk. P. C. 323. , _, , , '' „* ^ „„ m „„ , . ^ , „ ..„„ ,„ ' Caldwell v. State, 28 Tex. App. 3 "Calumniatrix" or "communis , . ■ J. j.„ t • 566, 14 S. W. 122. rixa used In an indictment in- stead of "ripatrlx,"— Old English 8 People v. McDonald, 9 Mich, law latin for a scolding woman,— 150. held to render indictment bad, and Compare, however, Davis v. judgment arrested on motion.— State, 42 Tex. 226. R. T. Foxby, 6 Mod. 11. State v. Robinson, 29 La. Ann. 4 Such an indictment was up- 364. 598 CRIMINAL PROCEDURE. §§ 505-507 § 505. Ajs-gbb and malice. The indictment or informa- tion need not allege either anger or malice, neither of these being necessary to constitute the offense,^ it being sufficient simply to aver that accused is a common scold.^ § 506. AiiLEGATioN OF sPEcirio ACTS. The offense con- sisting in a course of conduct/ the specific act consti- tuting the alleged offense need not be set out in the in- dictment or information,^ though the specific facts or particulars necessary to show a course of conduct should be set out.* § 507. Joinder op defendants. From the very nature of the offense it is peculiar to the accused, and another can not be involved therein. Another may be guilty of a like offense, but can not be guilty of the same offense. Hence two defendants can not be joined in an indict- ment or information charging the offense of being a com- mon scold. ^ 1 United States ▼. Royall, 3 Cr. 2 Baker v. State, 53 N. J. L. (24 C. C. 618, Fed. Cas. No. 16201. Vr.) 45, 2i0 All. 858. 2 See authorities, supra, § 504 ; 3 R. v. Urlyn, 2 Wm. Saund. also State v. O'Mally, 48 Iowa 501; 308, 85 Bug. Rep. 1107. J' Anson v. Stuart, 1 T. R. 748. i See, supra, § 352; Lindsey t. 1 See Com. v. Pray, 30 Mass. (13 State, 48 Ala. 169; R. v. Dovey, 15 Pick.) 359; Baker v. State, 153 Jur. 230, 2 Eng. L. & Eq. 532; N. J. L. (24 Vr.) 45, 20 Atl. 858; R. v. Hayes, 2 Moo. & Ry. 155; James v. Com., 12 Serg. & R. (Pa.) R. v. Philips, 2 Str. 921, 93 Eng. 220; R. T. Hannon, 6 Mod. 311. Repr. 943. CHAPTER XXXin. INDICTMENT — SPECIFIC CRIMES. Criminal Conspiracy. § 508. In general — Charging the offense. § 509. Form and sufficiency of indictment. § 510. Time of conspiracy. § 511. ■ Place of conspiracy. § 512. Names of conspirators. § 513. Aider of insufficient charge by other averments. § 514. Combination or confederacy of parties. § 515. Object or purpose of combination. § 516. Means to be employed to accomplish object. § 517. Knowledge and intent. § 518. Name of person intended to be injured. § 519. Joinder of defendants. § 520. Joinder of counts. § 520a. Same. §521. Duplicity. § 522. Surplusage. § 523. Overt act — Common law rule. § 524. Under statute or court rule. § 525. Accomplishment and advantage. § 526. Specific instances. § 527. Conspiracy to commit crime. § 528. Conspiracy to cheat and defraud generally. § 529. Conspiracy to defraud the government. § 530. Conspiracy to defraud the United States govern- ment. § 531. Conspiracy to injure person or reputation. § 532. Conspiracy to injure property or business. § 533. Conspiracy to blackmail and extort money. § 534. Conspiracy to interfere with civil rights. § 535. Conspiracy in restraint of trade or commerce. § 536. Conspiracy to impede due administration of laws or to obstruct justice. § 537_ Conspiracy to boycott, control wages or workmen, strike, and the like. (599) 600 criminaij procedure. §508 § 508. In genebai. — Chakging the offense.' Tlie gen- eral rules in criminal pleading govern in the case of a charge of conspiracy. The indictment or information should allege an intent to do an unlawful act, or to ac- complish a lawful purpose by unlawful means ;^ and where the act or end to be accomplished is in itself lawful, but the means to be used are unlawful, the means intended to be or actually used must be set out as a component part of the offense.* In those cases in which the offense consists in the conspiracy itself, and not in the acts done or means used to accomplish the purpose, an indictment charging in general terms will be sufficient where it describes an unlawful conspiracy for the accom- plishment of a bad purpose by an unlawful act.* 1 For forms of indictment for criminal conspiracy, in all its ram- ifications, see Forms Nos. 656-702, 2006-2009. 2 IOWA— State V. Harris, 38 Iowa 246. MB. — State v. Roberts, 34 Me. 320. MICH. — People v. Richards, 1 Mich. 217, 51 Am. Dec. 75; Alderson v. People, 4 Mich. 414, 69 Am. Dec. 321. N. H. —State V. Straw, 42 N. H. 394; State V. Parker, 43 N. H. 85. VT. —State V. Stewart, 59 Vt. 273, 59 Am. Rep. 710, 9 Atl. 559. FED.— Pettibone v. United States, 148 TJ. S. 197, 37 L. Ed. 419, 13 Sup. Ct. Rep. 542; trmted States v. Gard- ner, 42 Fed. 829. ENG.— R. v. Seward, 1 Ad. & El. 713, 28 Eng. C. L. 185; R. v. Gill, 2 Barn. & Aid. 205, 20 Rev. Rep. 467; R. v. Jones, 4 Barn. & Ad. 345, 24 Eng. C. L. 71; R. V. Best, 2 Ld. Raym. 1167, 92 Eng. Repr. 272. 3 Com. V. Hunt, 45 Mass. (4 Mete.) Ill, Thatch. Cr. Cas. 609, 38 Am. Dec. 346; People v. Rich- ards, 1 Mich. 216, 51 Am. Dec. 75; People v. Arnold, 46 Mich. 268, 9 N. W. 406; See Cole v. People, 84 111. 219 (dis. op.); Snow v. Wheeler, 113 Mass. 186; People v. Barkelow, 37 Mich. 455; State v. Parker, 43 N. H. 83; United States V. Crulkshank, 92 U. S. 542, 23 L. Ed. 588. See, also, infra, § 516. 4 ILL. — Spies V. People, 122 111. 1, 3 Am. St Rep. 320, 6 Am. Cr. Rep. 570, 12 N. E. 865, 17 N. E. 898. MASS. — Com. V. Judd, 2 Mass. 329, 3 Am. Dec. 54; Com. v. Hunt, 45 Mass. (4 Mete.) Ill, Thatch. Cr. Cas. 609, 38 Am. Dec. 346; Com. v. Andrews, 132 Mass. 263. MICH.— People V. Arnold, 46 Mich. 271. N. J.— Wood V. State, 47 N. J. L. (Is Vr.) 464. N. Y. — Ynguanzo v. Solomon, 3 Daly 157. PA. — Clary V. Com., 4 Pa. St. -210; Com. v. Goldsmith, 12 Phila. 632. VT.— State V. Stewart, 59 Vt. 273, 59 Am. Rep. 710, 9 Atl. 559. FED.— United States v. Stevens, 44 Fed. 141. ENG.— R. V. Peck, 9 Ad. & El. 686, 36 Eng. C. L. 240;. R. v. Gill, 2 Barn. & Aid. 204; R. v. Harris, 1 Car. & M. 661, 41 Eng. §508 CRIMINAL CONSPIRACT. 601 Ordinary and concise language should be employed in the indictment or information, and it should be such as is sufficient to enable a person of ordinary understand- ing to comprehend and know what is intended to be charged against the accused,^ and should be so precise and definite as to enable the accused to make his defense and, on acquittal or conviction, permit him to set up the plea of former jeopardy to a subsequent indictment based on the same facts.^ While an indictment or infor- C. L. 358; Walsby v. Auley, 3 El. & Bl. 516; Hilton v. Eckersley, 6 El. & Bl. 47, 88 Eng. C. L. 47, 119 Eng. Repr. 781; R. v. Eccles, 1 Leach C. C. 274; R. v. Bykerdyke, 1 Moo. & R. 179; R. v. Rowlands, 17 Q. B. 671, 79 Eng. C. L. 670; R. V. Ferguson, 2 Stark. 489, 3 Eng. C. L. 500; R. v. Mawbey, 6 T. R. 619, 101 Eng. Repr. 736; Mogul Steamship Co. v. McGregor, 15 Q. B. Div. 476; Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551; R. V. Selsby, 5 Cox C. C. 495; R. V. Druitt, 10 Cox C. C. 592; R. V. Bunn, 12 Cox C. C. 316. 6 United States v. Cella, 37 App. D. C. 423, certiorari denied in 223 TJ. S. 728, 56 L. Ed. 633, 32 Sup. Ct Rep. 526; Lanasa v. State, 109 Md. 602, 71 Atl. 1058; People v. Miles, 192 N. Y. 541, 84 N. E. 1117, affirming 123 App. Div. 862, 22 N. Y. Cr. Rep. 9, 108 N. Y. S. 510; Smith T. tr. S., 157 Fed. 721; Heike v. United States, 112 C. C. A. 615, 192 Fed. 83, affirming 175 Fed. 852. An averment that the accused and one Samuels "did conspire and agree together" sufficiently charges the crime of conspiracy. — People V. Smith, 147 111. App. 146. The Indictment will be held good if it substantially charge the particular offense for which he is to be or has been tried; and though defective it will be upheld where the rights of the defendants could not have been prejudiced by any imperfection. — T a p a c k v. United States, 220 Fed. 445. Critical or grammaticai objec- tions can not prevail where one of ordinary intelligence can not be misled. — ^Powers v. Com., 110 Ky. 386, 53 L. R. A. 245, 61 S. W. 735, 63 S. W. 976. Term by which offense l. 461, 1 Atl. 509; State v. Barr, (N. J. L.) 40 Atl. 772. N. Y.— People V. Sheldon, 139 N. Y. 251, 36 Am. St Rep. 690, 34 N. B. 785; People V. Willis, 158 N. Y. 392, 53 N. B. 29, reversing 4 Misc. 537, 54 N. Y. Supp. 129; People v. Gos- lin, 171 N. Y. 627, 63 N. B. 1120; People V. Coney Island Jockey Club, 68 Misc. 302, 123 N. Y. Supp. 669. There can be no conviction un- less overt acts are charged and one or more thereof are proved as laid.— People v. Coney Island Jockey Club, 68 Misc. (N. Y.) 302, 123 N. Y. Supp. 669; Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, Ann. Cas. 1914A, 614, 32 Sup. Ct. Rep. 793; United States V. Burkett, 150 Fed. 208; Thomas v. United States, 88 C. C. A. 447, 156 Fed. 897, 17 )L. R. A. (N. S.) 720; Arnold v. Well, 157 Fed. 429; United States V. Atlantic Journal Company, 185 Fed. 656; United States v. Mc- Clarty, 191 Fed. 318; United States V. Rogers, 226 Fed. 512. 9 Tillinghast v. Richards, 225 Fed. 226. 1 IND. — Muller v. State, 79 Ind. 198; Shercliff v. State, 96 Ind. 369; State V. Bruner, 135 Ind. 419, 35 N. E. 22. KY. — Com. v. Bryant, 10 Ky. Law Rep. 426, 12 S. W. 276. MASS. — Com. v. Judd, 2 Mass. 329, 3 Am. Dec. 54; Com. v. Hunt, 45 Mass. (4 Mete.) Ill, 38 Am. Dec. 346. N. H.— State v. Straw, 42 N. H. 395. VT.— State V. Noyes, 25 Vt. 416; State v. Keach, 40 Vt. 113. FED.— United States v. Burkett, 150 Fed. 208; United States v. Stamatopoulos, 164 Fed. 524; United States v. Wupperman, 215 Fed. 135. 634 CRIMINAL PEOCEDUEB. § 526 accused received or was to derive any pecuniary or other advantage therefrom.^ § 526. Specific instances. The limits of this treatise will not permit of a systematic treatment of the requisites and sufficiency of an indictment or information charging a conspiracy to commit each and every crime and offense in relation to which a criminal conspiracy may be entered into ; attention is necessarily confined to the main groups or classes of crimes and offenses to accomplish which criminal conspiracies are entered into most frequently. The discussion already given and rules laid down in this title, together with what follows herein, are thought to be sufficient to guide the pleader in any particular in- stance which may arise in practice. It is sufficient to state in this place that in each particular crime or offense the purpose or object of the corrupt combination must be set forth by alleging the particular crime or offense that was to be accomplished or committed under and in pur- suance of the agreement ;^ a statute dispensing with such allegation has been held to be unconstitutional,^ for the reason that the accused would have no means of knowing 2 state V. Bacon, 27 R. I. 252, v. Kellogg, 61 Mass. (7 Gush.) 61 Atl. 653; United States v. Allen, 473; Com. v. O'Brien, 66 Mass. (12 Fed. Gas. No. 14442; United States Gush.) 84; Com. v. Barnes, 132 V. Newton, 52 Fed. 275; R. v. Bs- Mass. 242. MICH.— Alderman v. daile, 1 Fost. & F. 213. ^^°^^^' * Mich. 414, 69 Am. Dec. 321. N. C— State v. Trammel!, 24 IGOLO.-Lipschitz V. People, j^ ^ ^^ Ired. L.) 379. WIS.- 25 Colo. 261, 53 Pac. 1111. ILL.— gj^te v. Crowley, 41 Wis. 271, 22 Towne V. People, 89 111. App. 258. Am. Rep. 719. FED.— Pettibone IND.— Landringham v. State, 49 y. United States, 148 U. S. 197, Ind. 186; State v. McKInstry, 50 37 L. Ed. 419, 13 Sup. Gt. Rep. Ind. 465; Miller v. State, 79 Ind. 542; United States v. Taffee, 86 198. IOWA— State v. Savoye, 48 Fed. 113; United States v. Melfl, Iowa 562. MX). — State v. Buchanan, 118 Fed. 899. 5 Harr. & J. 217, 9 Am. Dec. 534. 2 See Landringham v. State, 49 MASS. — Com. V. Hunt, 45 Mass. Ind. 186, 1 Am. Cr. Rep. 105; State (4 Mete.) Ill, 38 Am. Dec. 346; v. McKinstry, 50 Ind. 465; Scud- Com. V. Eastman, 55 Mass. (1 der v. State, 62 Ind. 13; Miller t. Cush.) 189, 48 Am. Dec. 596; Com. State, 79 Ind. 198. § 527 CRIMINAL CONSPIEACT. 635 before the trial with what crime or offense he stood charged, and for that reason would not be able to prepare his defense.* Where the crime is known to the common law, a designation by its common law name will be suffi- cient; otherwise the indictment or information must charge every element of the crime as fully as if it were an indictment for its perpetration.* § 527. CoNSPiKACY TO COMMIT CRIME. ^ Where a criminal conspiracy consists in an unlawful agreement or combination of two or more persons to compass or promote a criminal purpose,^ that purpose must be fully and clearly set forth in the indictment or information,^ and, under statute,* facts and circumstances constituting the intended crime should be alleged.^ Where the crimi- nality of the offense consists in an agreement to compass or promote some purpose not in itself criminal by the use of criminal and unlawful means, such means must be 3 Landiingham v. State, 49 Ind. Mete.) Ill, 38 Am. Dec. 346, over- 186, 1 Am. Or. Rep. 105. ruling Thatch. Cr. Cas. 609; Mar- 4COLO. — Llpschitz V. People, tens v. Reilly, 109 Wis. 464, 84 25 Colo. 261, 53 Pac. 1111. ILL.— N. W. 840. West V. People, 137 111. 189, 27 Compare: People v. Arnold, 46 N. E. 34, 34 N. E. 254. IND.-Scud- Mich. 268, 9 N. W. 406; State v. der V. State, 62 Ind. 13. IOWA— Witherspoon, 115 Tenn. 138, 90 State V. Carroll, 85 Iowa 1, 51 S- ^- ^^2. N W. 1159. MASS. — Com. v. * N. Y. Code Crim. Proc, §275. Eastman, 55 Mass. (1 Cush.) 189, ^ Pe°Ple v. Willis, 24 Misc. 48 Am. Dec. 596. N. H.-State v. (N. Y.) 537, 13 N. Y. Cr. Rep. Parker, 43 N. H. 83. PA.-Hart- 346, 54 N. Y. Supp. 129, affirmed mann V. Com., 5 Pa. St. 60. o^i ^'^^^ P°'°t l""' reversed on others, 34 App. Div. 203, 14 N. Y. 1 As to forms in conspiracy to ^^ ^^^ ^^^^ g^ j^ Y. Supp. 642, commit crime, see Forms Nos. ^gg j^ ^ ggg^ 53 j^ j, 39. 667-685. Charging conspiracy to remove 2 Combination of fire insurance ^„a secrete another's goods so companies to injure public hy rais- that he might falsely and fraudu- Ing rates is an indictable offense. lently obtain insurance, does not —Fire Ins. Cos. v. State, 75 Miss, sufficiently allege Intent to assist 24, 22 So. 99. in committing felony. — Com. v. 3 Com. V. Hunt, 45 Mass. (4 Barnes, 132 Mass. 242. 636 CRIMINAL PEOCEDURB. §527 set out in the indictment or information;* however, it seems that the specific means to be employed need be alleged in those cases only where the conspiracy is to do a lawful act in an unlawful manner.''^ A criminal act^ must be shown by the indictment or in- formation to have been the purpose of the agreement or combination,® and it must be alleged that the act was wilful and corrupt,^" except in those cases where the facts alleged necessarily import wilfulness.^^ Criminal act or offense is required to be set forth in general terms, only,^^ it not being necessary to describe 6 See authorities cited in foot- notes 1 and 7, this section. 7 People V. Petheram, 64 Mich. 252, 31 N. W. 188. 8 Not every conspiracy or com- bination is criminal, and punish- able as a criminal conspiracy. Thus: Agreement among carpenters that no union carpenter would use and work up material coming from a designated shop after a given date for the reason that the proprietor employed non - union men, is not a conspiracy. — State V. Van Pelt, 136 N. C. 633, 1 Ann. Cas. 495, 68 L. R. A. 760, 49 S. E. 177. Combination of mercliants to compei another dealing in certain goods to sell at . prices fixed by them, and upon his refusal so to do to prevent its members from selling goods to him is, upon gen- eral legal principles, contrary to public policy, but not criminal. — Brown v. Jacobs Pharmacy, 115 Ga. 429, 90 Am. St. Rep. 126, 57 L. R. A. 547, 141 S. E. 553. Combination of members of labor union to maintain wages or limit number of apprentices is not criminal. See, infra, § 637. Combination to injure business of another may be unlawful, and ' even tortious, without being crim- inal. See, infra, § 532. 9 State V. Stevens, 30 Iowa 391; Com. V. Wallace, 82 Mass. (16 Gray) 221; United States v. Walsh, 5 Dill. 58, Fed. Cas. No. 16636; United States v. Watson, 17 Fed. 145. 10 Woods V. State, 47 N. J. L. 461, 5 Am. Cr. Rep. 123, 1 Atl. 509; Madden v. State, 57 N. J. L. 324, 30 Atl. 541. 11 Van Gesner v. United States, 82 C. C. A. 180, 153 Fed. 46. 12 ALA. — Thompson v. State, 106 Ala. 67, 17 So. 512. ARK.— Bundy v. State, 95 Ark. 460, 130 S. W. 522. D. C— Geist v. United States, 26 App. Cas. 594; Hyde v. United States, 27 App. Cas. 362. IND.— See Reinhold v. State, 130 Ind. 467, 30 N. E. 306. IOWA— State V. Potter, 28 Iowa 554 ; State V. Savoye, 48 Iowa 562; State v. Soper, 118 Iowa 1, 91 N. W. 774; State V. Clemenson, 123 Iowa 524, 99 N. W. 139; State v. Poder, 154 Iowa 686, 135 N. W. 421. KY.— Lane v. Com., 134 Ky. 519, 121 S. W. 486. LA.— State v. Slutz, 106 La. 182, 30 So. 298. ME.— §527 CRIMINAL CONSPIRACY. 637 the act with the same precision as in an indictment or in- formation charging the criminal act itself,^* except in those states in which a conspiracy to' commit a crime is made a felony and an indictment or information charging the same is required to set out the essential elements of the felony as fully as they must be alleged in an indict- ment charging the commission of the felony." Where the crime or offense intended to be committed is not desig- nated by its legal name, the facts necessary to constitute state V. Ripley, '31 Me. 386. MASS. — Com. V. Eastman, 55 Mass. (1 Cush.) 189, 48 Am. Dec. 596; Com. v. Rogers, 181 Mass. 184, 63 N. E. 421. MICH.— Alder- man V. People, 4 Mich. 414, 69 Am. Dec. 321; People v. Dyer, 79 Mich. 480, 44 N. W. 937. N. Y.— People Y. Willis, 158 N. Y. 392, 14 N. Y. Cr. Rep. 72, 53 N. B. 29, affirming 34 App. Div. 203, ,14 N. Y. Cr. Rep. 414, 54 N. Y. Supp. 642. PA. — ^Hartman v. Com., 5 Pa. St. 60 ; Hazen v. Com., 23 Pa. St. 355. TEX. — ^Brown v. State, 2 Tex. App. 115. FED. — ^Williamson v. United States, 207 U. S. 425, 52 L. Ed. 278, 28 Sup. Ct. Rep. 163; United States V. Adler, 49 Fed. 736; Haynes v. United States, 42 C. C. A. 34, 101 Fed. 817; Ching V. United States, 55 C. C. A. 304, 118 Fed. 538; Thomas v. United States, 84 C. C. A. 477, 156 Fed. 897, 17 L. R. A. (N. S.) 720; Mc- Conkey v. United States, 96 C. C. A. 501, 171 Fed. 829. It is sufficient to charge a con- spiracy to perpetrate a confidence game, the confidence game heing a felony. — People v. Bush, 150 111. App. 48. 13 Id. See, also. Van Gesner v. United States, 82 C. C. A. 180, 153 Fed. 46; Taggart v. United States, 84 C. C. A. 477, 156 Fed. 897; United States v. White, 171 Fed. 775; United States v. Dahl, 225 Fed. 909; Aczel v. United States, 232 Fed. 652. The particularity with which the overt act is set forth can not vitiate the indictment where the conspiracy charged was a plan to defraud and not to commit the oifense named. — United States v. Stamatopoulos, 164 Fed. 524. Conspiracy to bring about the receipt of a rebate or concession being charged, the indictment or information need not allege the particular device or method by which it was to be accomplished with all the particularity required in pleading the cordmission of the substantive offense. — Thomas v. United States, 84 C. C. A. 477, 156 Fed. 897, 17 L. R. A. (N. S.) 720. See Armour Packing Co. v. United States, 82 C. C. A. 135, 153 Fed. 1, 14 L. R. A. (N. S.) 400, holding that the device or means need not be pleaded at all. 14 Landrlngham v. State, 49 Ind. 186, 1 Am. Or. Rep. 105; Scudder v. State, 62 Ind. 13; Smith v. State, 93 Ind. 67; Green v. State, 157 Ind. 101, 60 N. E. 941; Eacock V. State, 169 Ind. 488, 82 N. B. 1039. 638 CRIMINAL PROCEDURE. § 527 every essential element thereof must be alleged as fully as though the charge was the commission of the offense or crime itself. ^^ Crime against United States being charged as the object of the conspiracy, such conspiracy must be sufficiently alleged in the charging part; any defect in such alle- gation can not be aided by an averment of an act done under or in pursuance of the conspiracy;^" but it has been held that it is not necessary to show in the indict- ment why or how the overt act could or did aid in carry- ing out the conspiracy,^'^ though other cases hold that the indictment must show a connection between the act , done and the plan or method of the conspiracy,^® on the ground that it is for the court and not for the pleader to determine relevancy.^® Merger of conspiracy to commit crime in the consum- mated crime, there can be no punishment for the con- spiracy.^" It has been held by a line of well-reasoned cases that where the conspiracy is to commit a felony i5Imboden v. People, 40 Colo. of the Indictment in what man- 142, 90 Pac. 608. ner the act described would tend IG United States v. Britton, 108 *» effect the object of the con- V. S. 199, 27 L. Ed. 698, 2 Sup. Ct. spiracy, and there is considerable jjgp 53j^ authority to the effect that if any ,, .i , ^. . TTT act is set forth and is alleged by 17 United States y.Wupperman. ^^^ ^^^^^^ ^^ ^^^^ 215 Fed. 135. In an indictment charging a pursuant to the conspiracy or to effect its object, this is enough, conspiracy to conceal property ^j^^^^j^ ^^^^^ .^ ^^ apparent con- from a trustee in bankruptcy it is ^^^^.^^ ^^^^^^^ ^^^ ^^^^^ ^^^ ^^^ not necessary to allege the ap- ^^^ ^^.^^^ ^^.^ ^^^^^ ^^^^^^^ pointment of the trustee.-Steig- .^ principle, for relevancy is for man v. United SUtes, 220 Fed. 63. ^^^ ^^^^ ^^ ^^^ ^^^ ^^^ p,^^^^^ isTillinghast v. Richards, 225 jf t^e act must be qualified by Fed. 226. circumstances to make it relevant 19 In the above case. Brown, J., it should be pleaded, not simplici- says: "The case of United States ter, but with the circumstances V. Donau, 11 Blatchf. 168, Fed. which make it relevant." See, Cas. No. 14983, decided June 2, also, United States v. Ruroede, 1873, has many times been cited 220 Fed. 211. as justifying the proposition that 20 Com. v. Kingsbury, 5 Mass. it need not appear upon the face 106, 15 Am. Cr. Rep. 86. §527 CRIMINAL CONSPIRACT. 639 which is a higher crime than the conspiracy, and the fel- ony is actually accomplished, the conspiracy thereupon becomes immediately merged in the executed felony,^^ where the accused is charged with both the conspiracy and the felony, otherwise there will be no merger.^^ But the doctrine of merger does not apply in those cases where the conspiracy and the crime to be committed are both of the same degree or grade,^^ whether of misde- 21 ALA. — state v. Murphy, 6 Ala. 765, 41 Am. Dec. 79. ARK.— Elsey V. State, 47 Ark. 572. MB.— State V. Mayberry, 48 Me. 218. MASS. — Com. V. Kingsbury, 5 Mass. 106, 15 Am. Cr. Rep. 86; Com. V. Goodhue, 43 Mass. (2 Mete.) 193. MICH. — People v. Richards, 1 Mich. 216, 51 Am. Dec. 75. N. Y.— Elkin v. People, 28 N. Y. 177; People t. Mather, 4 Wend. 215, 21 Am. Dec. 122; Peo- ple V. McKane, 7 Misc. 478, 31 Abb. N. 0. 176, 9 N. Y. Cr. Rep. 140, 28 N. Y. Supp. 397; People v. Willis, 24 Misc. 537, 13 N. Y. Cr. Rep. 346, 54 N. Y. Supp. 129. PA. — Hartman v. Com., 5 Pa. St. 60. VT.— State v. Noyes, 25 Vt. 415, 421. VA.— Anthony v. Com., 88 Va. 847, 14 S. B. 834. Conspiracy to defraud insur- ance company punishable though no felony perpetrated. — Graff v. People, 208 111. 312, 70 N. B. 299, affirming 108 111. App. 168. Conspiracy to commit theft is not merged in the theft, and may be punished as a distinct offense. — State V. Setter, 57 Conn. 461, 14 Am. St. Rep. 121, 18 Atl. 782; R. V. Button, 11 Ad. & B. N. S. (11 Q. B.) 929, 63 Bng. C. L. 927; R. V. Neale, 1 Den. C. C. 36. 22 United States v. Gardner, 42 Fed. 829. "Question of merger applies oniy when the same act consti- tutes both offenses. But when the indictment charges that the de- fendants at one time were guilty of conspiracy, and at another time were guilty of perjury, there is no merger." — Johnson v. State, 29 N. J. L. (Dutch.) 453. 23 ALA. — State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79. KY.— Com. V. Blackburn, 62 Ky. (1 Duv.) 4. MB. — State v. Murray, 15 Me. 100. MASS. — Com. v. Kingsbury, 5 Mass. 108; Com. v. Bakeman, 105 Mass. 53; Com. v. Walker, 108 Mass. 309; Com. v. Dean, 109 Mass. 349. MICH. — People v. Richards, 1 Mich. 216, 51 Am. Dec. 75. N. Y.— People v. Mather, 4 Wend. 215, 21 Am. Dec. 122. PA.— Hartman v. Com., 5 Pa. St. 60; Com. V. Parr, 5 Watts & S. 345; Com. V. Delany, 1 Grant Cas. 224. VT.— State v. Noyes, 25 Vt. 415. FED. — United States v. Martin, 4 Cliff. 156, Fed. Cas. No. 15728. Burglary and larceny are crimes of the same magnitude, being dis- tinct felonies of the same grade, and for that reason are not sub- ject to the doctrine of merger. — • Bell V. State, 48 Ala. 684, 17 Am. Rep. 40, 2 Am. Cr. Rep. 627; How- ard V. State, 8 Tex. App. 447; Smith V. State, 22 Tex. App. 350. Trespass a felony by statute does not merge in a felony com- 640 CRIMINAL PKOCEDUEE. §528 meanor^* or felony.^'' In those cases wliere a conspiracy to commit a felony is regarded as an attempt to commit the felony, the authorities very largely predominate which hold that there is no merger in the accomplished felony ;^® and where, under the statute, some overt act is necessary to constitute the crime of conspiracy, the conspiracy is not merged in the executed crime.^'' — Conspiracy to cheat and defraud genbb- §528. - ALLY.^ It has been said that cheating and defrauding a person of property or money, though never right, was not necessarily an offense at common law; the transaction might be dishonest and immoral, and still not be unlaw- ful in the sense in which that term is used in criminal law.^ The general rule in this country, however, is that a conspiracy to cheat and defraud another out of his mltted In connection with the trespass. — ^White v. Fort, 10 N. C. (3 Hawks.) 251. 24 People V. Richards, 1 Mich. 216, 51 Am. Dec. 75; People t. Mather, 4 Wend. (N. Y.) 265, 21 Am. Dec. 122. See, also. State t. Murphy, 6 Ala. 765, 41 Am. Dec. 79; State v. Murray, 15 Me. 100; Com. V. Gillispie, 7 Serg. & R. (Pa.) 469, 10 Am. Dec. 475; Com. V. Delany, 1 Grant Cas. 224; Com. V. McGowan, 2 Pars. Sel. Eq. Cas. 341. 25 Thus, it has been held that a conspiracy to cheat and defraud by false pretenses and devices is not merged in the actual cheating and defrauding thereby (State v. Mayberry, 48 Me. 218); that a conspiracy to impede an officer in the discharge of his official duties Is not merged in the crime of actually Impeding him in those duties (State v. Noyes, 25 Vt. 415), and the like. 28 CONN. — State v. Shepard, 7 Conn. 54; State v. Setter, 57 Conn. 461, 14 Am. St. Rep. 461, 18 Atl. 782. ILL.— Barnett v. People, 54 111. 325. IND.— Bonsall v. State, 35 Ind. 460. MASS.— Com. v. Mc- Pike, 57 Mass. (3 Cush.) 181, 50 Am. Dec. 727; Com. v. Walker, 108 Mass. 309; Com. v. Dean, 109 Mass. 349. MICH. — People v. Bristol, 23 Mich. 118. N. Y.— Peo- ple V. Smith, 57 Barb. 46. 27 People V. Rathbun, 44 Misc. (N. Y.) 88, 18 N. Y. Cr. Rep. 454, 89 N. Y. Supp. 746. 1 As to forms in conspiracy to cheat and defraud, see Forms Nos. 656-665. 2 State V. Hewett, 31 Me. 396. In this case the indictment charged the defendants with "de- vising and intending to injure and defraud, and did unlawfully con- spire, combine, confederate and agree together the said A to in- jure, cheat and defraud of a cer- tain horse, the property of the said A,'' etc.; which was held in- 528 CRIMINAL CONSPIRACY. 641 money or property is an indictable offense,' whether the object or means to be employed in its consummation is punishable as a crime or not.* At common law an indictment or information charging a conspiracy to cheat and defraud need not set out the means to be used in effecting the object,** a general charge being sufficient — e. g., by means of divers false and fraudulent devices." This doctrine has been followed by some of the courts in this country,'' but the better doc- sufiBcient because it stated the purpose only, without setting out the means to be used. 3 State V. Gannon, 75 Conn. 206, 52 Atl. 727; State v. Howard, 129 N. C. 684, 40 S. E. 71. 4 State V. Gannon, 75 Conn. 206, 52 Atl. 727. 5R. V. Gompertz, 9 Ad. & B. (9 Q. B.) 824, 58 Eng. C. L. 824; Sydserfe v. R., 11 Ad. & E. (11 Q. B.) 245, 63 Eng. C. L. 245; R. V. Gill, 2 Barn. & Aid. 204; La- tham V. R., 2 Best & S. 635. Compare: R. v. Parker, 3 Ad. & E. N. S. (3 Q. B.) 290, 43 Eng. C. L.. 744; R. v. Kenrict, 5 Ad. & E. N. S. (5 Q. B.) 61, 48 Eng. C. L. 60. ' 6 Charging accused unlawfully, fraudulently, and deceitfully did conspire, combine, confederate, and agree together to cheat and defraud prosecutor out of his goods and chattels, or moneys, held to be sufficient. — R. v. Gom- pertz, 9 Ad. & E. N. S. (9 Q. B.) 824, 58 Eng. C. L. 823; Sydserft v. R., 11 Ad. & E. N. S. (11 Q. B.) 245, 63 Eng. C. L. 245. 7 See: COLO. — Moore v. Peo- ple, 31 Colo. 336, 73 Pao. 30; Im- boden v. People, 40 Colo. 142, 90 Pac. 608. ILL. — Thomas v. People, 113 111. 531; People v. Smith, 239 I. Crim. Proc— 41 111. 91, 87 N. B. 885, affirming 144 111. App. 129; People v. Nail, 242 111. 284, 89 N. E. 1012; People v. Poindexter, 243 111. 68, 90 N. E. 261; People v. Bush, 150 111. App. 48. MD.— State v. Buchanan, 5 Harr. & J. 317, 9 Am. Dec. 534; Blum V. State, 94 Md. 375, 56 L. R. A. 322, 51 Atl. 26. MASS.— Com. V. "Wallace, 82 Mass. (16 I Gray) 221; Com. v. Meserve, 154 Mass. 64, 27 N. E. 997. MICH.— People T. Richards, 1 Mich. 216, 57 Am. Dec. 75; People v. Clark, 10 Mich. 310; People v. Arnold, 46 Mich. 268, 9 N. W. 406; People v. Butler, 111 Mich. 483, 69 N. W. 734; People v. Summers, 115 Mich. 537, 73 N. W. 889. N. J.— State V. Young, 37 N. J. L. (8 Vr.) 184; Wood V. State, 47 N. J. L. 180, 184. N. C— State v. Brady, 107 N. C. 822, 12 S. E. 325; State v. How- ard, 129 N. C. 584, 40 S. E. 71. PA. — Com. V. McKisson, 8 Serg. & R, 420, 11 Am. Dec. 630; Com. V. Goldsmith, 12 Phila. 632. R. I. — i State V. Bacon, 27 R. I. 252, 61 Atl. " 653. WASH.— State v. Messner, 43 Wash. 206, 86 Pac. 636. WIS.— State T. Crowley, 41 Wis. 271, 22 Am. Rep. 719, 2 Am. Cr. Rep. 33. FED. — United States v. Dennee, 3 Woods 47, Fed. Cas. No. 14948. ENG.— R. V. Gill, 2 Bam. & Aid. 642 CRIMINAL PEOCEDTJEE. §528 trine is thought to be that the indictment or information must set out the false pretenses, tokens, and devices agreed to be used to accomplish the purpose or effect the end,* and it must show that the conspiracy was to cheat and defraud in some of the modes made criminal by statute.® 204; R. V. Hamilton, 7 Car. & P. 448, 32 Eng. C. L. 579; R. v. Sta- pylton, 8 Cox C. C. 69, 6 W. R. 60; Latham v. R., 9 Cox C. C. 516. Conspiracy to cheat and de- fraud by false pretenses being charged, indictment or informa- tion need not specify pretenses used, — People v. Arnold, 46 Mich, 268, 9 N. W. 406. Conspiracy to defraud being charged, indictment need not set out the means agreed upon to carry the conspiracy into effect. — PeoDle V. Butler, 111 Mich. 483, 69 N. W. 734; United States v. Dennee, 3 Woods 47, Fed. Gas. No. 14948. 8 See: KT. — Com. v. Ward, 92 Ky. 158, 17 S. W. 283. MB.— State V. Roberts, 34 Me. 320; State v. Mayberry, 48 Me. 218. MASS.— Com. V. Prius, 75 Mass. (9 Gray) 127; Com. v. Wallace, 82 Mass. (16 Gray) 221. MICH.— Alderman V. People, 4 Mich. 414, 69 Am. Dec. 321. N. H. — State v. Parker, 43 N. H. 83. N. Y. — Lambert v. Peo- ple, 9 Cow. 578; People v. Brady, 56 N. Y. 182; People v. Olson, 15 N. Y. Supp. 778. VT.— State v. Keach, 40 Vt. 113. Wliere means enters into a con- spiracy to defraud, though not themselves within the legal defini- tion of crime, indictment or in. formation must show what they are. — People v. Barkelow, 37 Mich. 455. 9 State V. Ripley, 31 Me. 386; State V. Hewett, 31 Me. 396 ; State V. Roberts, 34 Me. 320; Com. v. Hunt, 45 Mass. (4 Mete.) Ill, 38 Am. Dec 346, reversing Thatch. Cr. Cas. 609 ; Com. v. Eastman, 55 Mass. (1 Cush.) 190, 48 Am. Dec. 596; Com. v. Shedd, 51 Mass. (7 Cush.) 514; Alderman v. People, 4 Mich. 414, 69 Am. Dec. 321; Lam- bert V. People, 9 Cow. (N. Y.) 578; Hartmann v. Com., 5 Pa. St. 60. Indictment charging conspiracy to cheat A out of his property by false pretenses by accused, where the acts charged as done were a representation to A that he was about to be prosecuted by B for an assault upon B's infant daugh- ter with intent to rape; that by the testimony of the daughter he would be convicted and sent to state's prison, and that he must leave the state, whereas accused well knew that B had no intention of prosecuting A; the charges not being of existing facts, but simply as to things alleged a third per- son had threatened to do, the indictment was insufficient, as an Indictment for false pretenses can not be predicated upon represen- tations as to what a third person has threatened to do. — People v. Richards, 1 Mich. 216, 51 Am. Dec. 75. § 528 CRIMINAL CONSPIKAOT. 643 Particular rights, property, goods, money, and so forth, to obtain whicli, or the injury or destruction of which, was the object of the conspiracy, need not be set forth and particularly described, where a conspiracy to cheat and defraud is alleged.^" Ownership of the property to be obtained, it seems, should be alleged.^^ Object of the conspiracy need not be alleged as spe- cifically and with as much particularity as in those cases where the indictment or information is for the offense of defrauding,^^ but it must be made to appear that the conspiracy was in fact fraudulent.^* Person to be cheated. It has been said that an indict- ment or information charging conspiracy to cheat and de- fraud will be insufficient where it does not set out the person to be cheated or defrauded ;^* but other cases hold that an allegation to cheat and defraud divers citizens and the public generally is sufficient without naming any particular person or persons.*" Using mails to defraud being charged, the exact scheme agreed upon to defraud or obtain money by false repre- 10 COLO. — Imboden v. People, United States, 26 App. Gas. D. C. 40 Colo. 142, 90 Pac. 608. IND. — 594; Com. v. Meserve, 154 Mass. Relnliold v. State, 130 Ind. 467, 30 64, 27 N. E. 997; Latbam v. R., 5 N. E. 306. MD.— State v. Dent, Best & S. 635, 117 Bng. 0. L. 635, 3 Grill & J. 8; Lanasa v. State, 9 Cox C. C. 516. 109 Md. 602, 71 Atl. 1058. MASS.— 13 Tyner v. United States, 23 Com. V. Ward, 1 Mass. 473. N. H.— App. Cas. D. C. 324. State V. Straw, 42 N. H. 393. 14 Bulfer v. People, 141 111. App. PA. — ^Rogers v. Com., 5 Serg. & 70; State v. Jones, 13 Iowa 269; R. 463; Com. v. Goldsmith, 12 Wood v. State, 47 N. J. L. 461, Phila. 622. ENG. — R. v. Blake, 1 Atl. 509; United States v. Green, 6 Ad. & E. (6 Q. B.) 126, 51 Eng. 199 U. S. 601, 50 L. Ed. 328, 26 C. L. 701; Rex v. Hamilton, 7 Car. Sup. Ct. Rep. 748, affirming 136 & P. 448, 32 Eng. C. L. 701. Fed. 618 ; United States v. Milner, 11 R. V. Parker, 3 Ad. & E. 36 Fed. 890; Pereles v. Weil, 157 (3 Q. B.) 292, 43 Eng. C. L. 741; Fed. 419; United States v. Moore, R. V. Bullock, Dears. C. C. 653, 173 Fed. 122. 25 L. J. M. C. 92. 15 People v. Arnold, 46 Mich. i2Lorenz v. United States, 24 268, 9 N. W. 406; McKee t. State, App. Cas. D. C. 337; Geist v. Ill Ind. 378, 12 N. E. 510. 6M CRIMINAL PBOCEDUEE. §529 sentations must be set out, and it must be alleged that a letter or postal card was deposited in the mail in further- ance of and for the purpose of executing such scheme.^® Such an indictment must charge acts which, if committed, would constitute an offense under the statute ; but it need not be alleged that the accused specifically conspired to commit each element of the offense.^'' §529. CONSPIEACY TO DEPKAUD THE GOVEENMENT. Under a statute making it criminal to conspire to commit a crime^ or to cheat and defraud^ there may be a con- spiracy to cheat and defraud the government of city,* 16 United States v. Wupperman, 215 Fed. 135. An indictment for a conspiracy to misuse the malls in a scheme to defraud is sufilclent where It alleges the conspiracy to defraud by using the post office and that in carrying out the scheme they did the acts subsequently charged, and where it further sets out that they deposited a letter In the post office, setting out the letter. — Ex parte King, 200 Fed. 622. Letter should be set out if pos- sible or sufficiently identified (Jr described, but it is not necessary to allege how the letter would or was intended to aid in the scheme. — United States v. Wupperman, 215 Fed. 135. Under U. S. Rev. Stats., §5480 (5 Fed. Stats. Ann., 1st ed., p. 973), there must be alleged in the indictment and proved on the trial: (1) That the accused had devised a scheme or artifice to de- fraud; (2) that they intended to effect this scheme by opening, or intending to open, correspondence •with person's through the post office; (3) that in carrying out such scheme such persons must either have deposited a letter or packet in the post office or taken or received one therefrom. And the indictment must allege a combination between the accused to do the things required to con- stitute the offense denounced by the statute. — Stokes v. United States, 157 U. S. 187, 39 L. Ed. 667, 15 Sup. Ct. Rep. 617. The above ruling is considered in McConkey v. United States, 96 C. C. A. 501, 171 Fed. 829, and the language construed to mean simply that the acts which the indictment charges the accused to have conspired to commit must, if committed, constitute an offense under Rev. Stats., § 5480; that it does not mean that it must be distinctly and separately charged that the accused conspired to commit each separate element of the offense, such elements being separately stated. 17 McConkey v. United States, 96 C. C. A. 501, 171 Fed. 829. 1 See, supra, § 527. 2 See, supra, § 528. 3 Municipal board combining to purchase city supplies at exces- sive prices, or to pay salaries to § 530 CRIMINAL CONSPIRAOT. 645 county* or state.® Thus, a conspiracy to isstie a pay cer- tificate on the state treasury for the purpose of getting money out of the state treasury without an equivalent rendered therefor is a criminal conspiracy which is com- plete on the corrupt combination, and the indictment or information charging the same need not set forth spe- cifically the date, number, amount, and so forth, of the pay certificate issued in pursuance of such conspiracy.® § 530. CONSPIKACY TO DEFKATJD THE UnITED StATES GovEENMENT.^ It being the settled doctrine of our juris- prudence that there are no common law crimes against the government of the United States, an act or omission, to be criminally punishable in the federal courts, must have been declared to be an offense by an act of con- gress.^ This fact materially modifies the common law rule as to conspiracies to defraud the government.* Such offense, being purely a matter of statute, the offense, as well as the form and sufiiciency of the indictment charg- ing the same, is controlled entirely by the federal statute relating to and denouncing the crime,* and the require- persons not rendering any sei^ 662; McDonald v. People, 126 111. vices. — Madden v. State, 67 150, 18 N. E. 817. N. J. L. (28 Vr.) 324, 30 Atl. 541. 5 As to form in conspiracy to Combination of individuals to defraud state, see Form No. 666. cause municipality to pay largely « State v. Cardoza, 11 S. C. 195. 1 As to form of indictment in in excess of actual value of work of constructing a public works, and divide the excess among conspiracy to defraud United States, see Forms Nos. 696, 697. 2 United States v. Walsh, 5 Dill. themselves, by means of prede- gg^ ^^^ f^^ jjg_ ^gggg termined bids, all in excess of 3 United States v. Walsh, 5 Dill, what they should be, held not to 55^ Fed. Cas. No. 16636. charge a criminal conspiracy to 4 Existing act necessary; a con- cheat and defraud vmder Indiana spiracy to defraud depending upon statute. — State v. Brunner, 135 g, future act of congress to make Ind. 419, 35 N. E. 22. See, also, jt effective is not punishable as Com. V. Ward, 92 Ky. 158, 17 S. W. a criminal conspiracy. — United 283. States v. Grafton, 4 Dill. 145, 17 4 As to defrauding county by Am. Law Rep. (N. S.) 127, 23 Int. false bills for supplies, see Ochs Rev. Rec. 186, 4 Cut. L. J. 441, v. People, 124 111. 399, 16 N. E. Fed. Cas. No. 14881. 646 CRIMINAL PEOCEDURB. § 530 ments of that statute must be fully met and complied with in every essential regard. It is sufficient to follow the language of the statute,^ where that statute contains a definition of the crime and sets out all the essential ele- ments going to constitute such crime ; but the offense must be sufficiently set forth in the charging part of the indict- ment, for it can not be aided^ by a subsequent averment of an overt act done by any one of the conspirators in pursuance of the alleged conspiracy.'^ The federal stat- ute^ not containing a definition, and not setting forth the constituent elements of the crime of conspiracy to de- fraud or injure the United States government, an indict- ment following the language of that statute, simply, will be wholly insufficient ; it must, in addition, set forth fully and clearly all the acts and elements necessary to consti- tute the crime sought to be charged.® An overt act by one or more of the conspirators, while the conspiracy is still existent,^" is necessary to the vital- 5 Technical term or phrase used, Whart. Crim. Law, p. 2440), for- or word or words of double sig- mer § 5440 TJ. S. Rev. Stats., 2 Fed. nificance used, the language of the Stats. Ann., 1st ed., p. 247. statute will not be suflaoient. — 9 United States v. Cruikshank, United States v. Martin, 4 Cliff. 92 U. S. 542, 23 L. Ed. 528; 3 63, Fed. Cas. No. 15728. United States v. Simmonds, 96 oAs to order of insufficient U. S. 360, 24 L. Ed. 819; United charge by other averments, see. States v. Carll, 105 U. S. 611, 26 supra, § 513; also, Joplin Mercan- L. Ed. 1135; United States v. Brit- tile Co. V. United States, 236 U. S. ton, 107 U. S. 655, 27 L. Ed. 520, 531, 59 L. Ed. 705, 35 Sup. Ct. Rep. 2 Sup. Ct. Rep. 512; United States 291. V. Britton, 108 U. S. 199, 27 L. Ed. 7 United States v. Britton, 108 703, 2 Sup. Ct. Rep. 531; Petti- U. S. 199, 27 L. Ed. 608, 2 Sup. Ct. bone v. United States, 148 U. S. Rep. 531; In re Benson, 58 Fed. 197, 37 L. Ed. 419, 13 Sup. Ct. Rep. 971. 542; United States v. Martin, 4 Indictment must be tested by Cliff. 156, Fed. Cas. No. 15728; the averments concerning the con- United States v. Walsh, 5 Dill. 58, spiracy unaided by those in re- 60, Fed. Cas. No. 16636; In re spect to overt acts committed Wolf, 27 Fed. 613; United States thereunder. — Dwinnell v. United v. Trumbull, 46 Fed. 755; In re States, 108 C. C. A. 624, 186 Fed. Benson, 58 Fed. 971. 754. 10 "The conspiracy alone is not 8 §37 U. S. Grim. Code (3 Kerr's sufficient under this section (§37 §530 CRIMINAL CONSPIRACT. 647 izing of tlie orime,^^ and that fact must be distinctly alleged in the indictment j^^ but it is not necessary to allege that the contemplated fraud was actually com- mitted,^^ or that it should appear on the face of the in- dictment that the object of the conspiracy "would be accomplished by the overt acts alleged.^* The overt act must be alleged to have been committed within the juris- diction of the court to which the indictment is presented, but it is not necessary to allege that the conspiracy was formed or entered into in that jurisdiction, because the overt act, as above pointed out,*® is the essential thing to vitalize the offense, and an overt act having been com- mitted, in pursuance of the conspiracy or confederation, U. S. Crlm. Code) , but requires the overt act to give it vitality. The overt act, then, becomes a neces- sary element of the offense, and a part of It. . . . The unlawful confederation of conspiracy of the parties must continue the per- formance of an overt act to effect the object of the conspiracy, to be an offense. If either of the par- ties should withdraw from the conspiracy during the locus poeni- tentise, or before the overt act, such party would be released from the consequences of such act and the prior agreement." — United States V. Linton, 223 Fed. 677, 679. 11 Hyde v. Shine, 199 U. S. 62, 50 L. Ed. 90, 25 Sup. Ct. Rep. 760; Dimond v. Shine, 199 U. S. 88, 50 L. Ed. 90, 25 Sup. Ct. Rep. 760; Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 Sup. Ct. Rep. 793, Ann. Cas. 1914A, 614; Ex parte Black, 147 Fed. 837. 12 Pettibone v. United States, 148 U. S. 197, 37 L. Ed. 419, 13 Sup. Ct. Rep. 542; Dealy v. United States, 152 U. S. 539, 38 L. Ed. 545, 14 Sup. Ct. Rep. 680; United States V. Nunnemacher, 7 Biss. Ill, 120, Fed. Cas. No. 15902; United States v. Goldberg, 7 Biss. 175, Fed. Cas. No. 15223; United States V. Martin, 4 Cliff. 156, Fed. Cas. No. 15728; United States v. Walsh, 5 Dill. 58, Fed. Cas. No. 16636; United States v. Boyden, 1 Ix)w. 266, Fed. Cas. No. 14632; United States v. Dennee, 3 Woods 47, 50, Fed. Cas. No. 14948; United States V. Sacia, 2 Fed. 754; United States V. Sanche, 7 Fed. 715; United States v. Watson, 17 Fed. 148; United States v. Gordon, 22 Fed. 250; In re Wolf, 27 Fed. 606; United States v. Reichert, 32 Fed. 142. 13 United States v. Newton, 48 Fed. 218; Gantt v. United States, 47 C. C. A. 210, 108 Fed. 61. 14 United States v. Donau, 11 Blatchf. 168, Fed. Cas. No. 14983; United States v. Graff, 14 Blatchf. 381,^391, Fed. Cas. No. 15244; United States v. Bouden, 1 Low. 266, Fed. Cas. No. 14622; United States V. Sanche, 7 Fed. 719. 15 See, supra, footnote 11 and text going therewith. 648 CMMINAL PEOCEDUEE. § 530 "within the jurisdiction of the court, vitalizes the crime ■within that jurisdiction as fully as though the conspiracy had been originally entered into therein.^^ Instances of sufficient and insufficient indictments, under court rulings, may be of practical utility ; but space will not permit of an exhaustive citation or discussion. A charge of conspiracy to defraud the United States by "certifying that certain false and fraudulent accounts and vouchers for materials furnished for use in the con- struction of " a named public building in the course of erection in a designated city, "and for labor performed on said building, were true, genuine, and correct," held to be bad for uncertainty.' '' Charging conspiracy to de- fraud by presenting false, fictitious and fraudulent claims to the United States surveyor-general for allowance and payment, must further allege that the surveyor-general was authorized and empowered to allow and approve such claims ;^* but a charge of conspiracy to defraud by bribing a board of examining surgeons to make a false report, on an application for a pension, to the commis- sioner of pensions, need not allege that such comanis- sioner had power to grant the pension, because that power is conferred by federal statute, of which statute the court must take judicial notice ;^* and a charge is suf- ficient which alleges accused conspired to procure a pen- sion for one of them in the name of a dead soldier, and in pursuance thereof knowingly made and presented to the commissioner of pensions a false affidavit in support of such claim to a pension, such false affidavit and the pre- 16 Hyde v. United States, 225 1 7 United States v. Walsh, 5 U. S. 347, 367, 5 L. Ed. 1114, 1126, Dill. 58, Fed. Cas. No. 16636. 32 Sup. Ct. Rep. 793, Ann. Cas. 18 United States v. Relchert, 32 1914A, p. 614; Brown v. Elliott, Fed. 142. 225 U. S. 392, 401, 56 L. Ed. 1136, 19 United States v. Van Leuven, 1140, 32 Sup. Ct. Rep. 812; United 62 Fed. 62, distinguishing United States V. Linton, 22 Fed. 677. States v. Reichert, 32 Fed. 142. § 530 CEIMINAL OONSPIEACT. 649 sentment thereof being, by statute,*"* both, made a crim- inal offense.*^ A charge of conspiracy to defraud the United States of duties, to which it was entitled by law, by destroying certain papers for the purpose of suppress- ing evidence of the fraud, in violation of the provisions of statute,^* need not set out facts showing the fraud, of the commission of which the destroyed papers would be evidence ; nor set forth the contents of such papers so that the court should be enabled to see whether they con- tained evidence of the alleged fraud.*' A charge that ac- cused tendered an agreement to pay money to "certain United States officials, to-wit, the officers of court of the United States, acting under the authority of the govern- ment of the United States in and for" a designated divi- sion of a named state, is insufficient as a description of an overt act to effect the object of the conspiracy to de- fraud the United States, not being sufficiently definite to identify either the agreement or the tender or to deter- mine whether the tender was made to an official or to some one else.** Charging a conspiracy in the formal manner between accused and an officer of the govern- ment, whereby accused was to pay to the officer a commis- sion on the purchase price of each and every one of cer- tain articles purchased by the government through the influence of said officer, is sufficient, notwithstanding the fact that the officer's assent is not directly averred.*^ Charging a conspiracy to commit the offense of introduc- ing intoxicating liquors into Indian country need not allege that the intention was to import from without the state of Oklahoma.*® It is sufficient to charge a con- 20 XI. S. Rev. Stats., § 4746, 5 24 United States v. Mllner, 36 Fed. Stats. Ann., 1st ed., p. 665. Fed. 890. 21 United States v. Adler, 49 25 United States v. Green, 136 Fed. 736. Fed. 618, affirmed. Green v. Mc- 22 U. S. Rev. Stats., § 5443, 2 Dougall, 199 U. S. 601, 50 L. Ed. Fed. Stats. Ann., 1st ed., p. 773. 328, 26 Sup. Ct. Rep. 748. 23 United States v. De Grieff, 26 Joplin Mercantile Co. v. 16 Blatcht 20, Fed. Gas. No. 14936. United States, 131 C. C. A. 160, 650 CMMINAIi PROCEDURE. § 530 spiracy to defraud the United States by procuring a stated number of persons to enter at a land office, under color of the pre-emption laws, certain public lands of the United States, solely for the purpose of selling the same on speculation to the accused and other persons to the grand jury unknowjif and it is not necessary to allege that the land was subject to homestead or other entry, because the conspiracy constitutes the offense, and it need not appear that the overt act tended to effect the purpose of the conspiracy, or that it was successful.^* It has also been held that a charge of conspiracy to defraud by mak- ing false entries of tracts of desert land, and to obtain title thereto fraudulently, need not allege that the ac- cused ever caused any fraudulent entries to be made, or took any steps to that end; nor need it be alleged that accused agreed to procure any person to do all the things essential to the making of entries under the Desert Land Law.^® But charging a conspiracy to defraud the United States by procuring the dismissal of certain suits brought by the United States to recover certain lands "alleged to have been fraudulently and unlawfully obtained," is in- sufficient to charge a conspiracy to defraud, by reason of the use of the word "alleged," leaving the question of fraud an open one.^" Charging a confederated effort to deprive the federal government of the right and privi- lege of proper service in any governmental department, is sufficient.^^ Charging railway officials with conspiracy to defraud the United States by deceiving the postal au- thorities through sending over the line large quantities of old newspapers, and so forth, in order to increase the 213 Fed. 926, affirmed, 236 U. S. 29 Chaplin v. United States, 193 531, 59 L. Ed. 705, 35 Sup. Ct. Rep. Fed. 879, certiorari denied, 225 291. U. S. 705, 56 L. Ed. 1266, 32 Sup. 27 United States v. Gordon, 22 Ct. Rep. 838. Fed. 250. so United States v. Milner, 36 28 Gantt V. United States, 47 Fed. 890. C. C. A. 210, 108 Fed. 61. See, 3i United States v. Haas, 163 also, footnote 13, this section. Fed. 908. § 531 CRIMINAL CONSPIRACY. 651 weight of tile mail-matter at the time of weighing the mails for the purpose of fixing the compensation for car- rying the mails by such line, is a sufficient description of the offense charged, and of a conspiracy to defraud; it is not necessary to allege accomplishment of the con- spiracy, or what particular officers of the United States it was the intent to deceive.^^ The subject-matter of a con- spiracy to defraud described in the indictment as "the taxes arising from, and imposed by law upon, certain di- vers proof gallons and quantities of distilled spirits, dis- tilled in the United States, then and there situate in certain bonded warehouses, to-wit," specifically describ- ing the warehouses, held to be sufficient; it not being nec- essary to set out the precise kinds, quantities, and qilali- ties of the liquors, the general description being sufficient to show that the liquors in question were liable to taxes.^* § 531. Conspiracy to injure person or reputa- tion. A corrupt combination of persons to injure another without just cause, is a conspiracy to inflict malicious in- jury under the statute;^ and aja indictment charging a conspiracy to accuse of, or to have prosecuted for, crime,^ charges a criminal offense, and will be sufficient where regular in form and meets the requirements of the stat- ute.^ Thus, charging substantially in the language of the statute a conspiracy "with intent falsely, fraudulently and maliciously" to cause a designated person to be 32 United States v. Newton, 48 2 As to forms for conspiracy to Fed. 218. See, also, footnote 13, falsely charge one with crime, see this section. Forms Nos. 651-655. Increased weight sufficient to 3 People v. Dyer, 79 Mich. 480, entitle the railroad to increased 44 N. W. 937. compensation, need not be averred. Charging substantially in the jj language of the statute a consplr- „„ TT .^ ^ oi i -n J 1 ^'^^ to procure another to be ar- 33 United States v. Boyden, 1 j. j * ^i, „ rested for the offense of larceny. Low. 266, Fed. Cas. No. 14632. „^„„ ^^„^^i„„ .^,. ^„ [ ' well Knowing that he was not 1 State ex rel. Burner v. Huegln, guilty of said offense" is suffl- 110 Wis. 189, 62 L. R. A. 700, 85 cient.— Elkln v. People, 28 N. Y. N. W. 1046. 177. 652 CRIMINAL PEOCEDUEE. ' § 531 prosecuted for an attempt to Mil, "of wMch said crime the said" person named "was innocent," is sufficient without an allegation that the accused knew, or had reasonable ground to believe, that he was innocent,* for the reason that it is not necessary to allege the innocence of the person against whom the conspiracy is directed.® Charging an officer making the arrest, the person prose- cuting, and other persons concerned in the proceeding, with conspiracy by criminal process to cause the false imprisonment of a named person for an improper pur- pose, is good;* but the indictment must allege and the proof show an actual conspiracy, because of the fact that if each of the accused acted illegally and maliciously in the premises, but without previous concert and combi- nation, it will not be sufficient.'' Common slander may display as much baseness and malignity of purpose, as much falsehood in its perpetra- tion, and be as pernicious in its dissemination as any of the other crimes mentioned in this section, but though contra bonos mores is not indictable f however, a charge of a conspiracy to slander another by accusing him of an indictable offense, charges a crime, and is good.® 4 state V. Locklln, 81 Me. 251, illegal.— State v. Weed, 21 N. H. 16 Atl. 895. 262, 53 Am. Dec 188. 5 Johnson V. State, 26 N. J. L. ^ bewail v. Jenkins, 26 Pa. St. 159 (2 Dutch.) 313. „'* J o ^ T, ^ '^ 8 Anderson v. Com., 5 Rand. eSlomer v. People, 25 111. 70, (Va.) 627, 16 Am. Dec. 776. 76 Am. Dec. 786. See O'Donnell 9 state v. Hickling, 41 N. J. L. V. People, 110 ni. App. 250 (con- (12 Vr.) 208, 32 Am. Rep. 198; spiracy to pervert justice indict r y Klmberley, 1 Lev. 62; R. v. able). Best, 2 Ld. Raym. 1167, 92 Eng. Arresting officer not joining In Repr. 272, 1 Salk. 174, 91 Eng. tiie conspiracy, it is otherwise, Repr. 160. and he will be protected, where Charging conspiracy to slander the virlt is regular upon its face without sufficiently pleading tlie and shows jurisdiction of the slander as against either of the court or officer issuing, even accused is insufficient. — Severing- though the officer had knowledge haus v. Beckman, 9 Ind. App. 388, that the prosecutor's object was 36 N. E. 930. § 531 CRIMINAL CONSPIEAOT. 653 Thus, charging a conspiracy to bring a named person into disrepute by spreading the accusation that he is the father of a bastard child^" or of a child likely to become a bastard/^ or with keeping a bastard,^^ has been up- held as charging a crime ; but a charge of conspiracy in prosecuting another in bastardy proceedings, can not be sustained where the prosecution was on behalf of the woman interested, and the accused honestly believed from her statements that the accusation was true, and were thereby induced to act in the matter.^* Seduction of a female being an indictable offense,^* an indictment which charges a conspiracy to seduce a named female from her virtue and to enable one of the accused to carnally know her, by effecting a pretended marriage with her and thus gaining her own and her parents' con- sent thereto, in the belief that the marriage was legal, and in furtherance of such conspiracy with procuring and presenting a false and forged marriage license, repre- senting it to be true and genuine, and falsely and fraudu- lently representing that one of the accused was a jus- tice of the peace and authorized by law to solemnize marriages, who actually performed a pretended marriage ceremony, in consequence of all of which the said female and her parents were deceived, etc., is a good indictment, both in matter and form.^^ Marriage relation is one of the most sacred rights pro- tected by our laws, and an indictment charging a con- spiracy to cause it to falsely appear of record that a cer- 10 R. V. Best, 2 Ld. Raym. 1167, is Heapes v. Dunham, 95 111. 583. 92 Eng. Repr. 272; 6 Mod. 137. 14 Smith v. People, 25 111. 17, See Lewis v. Lentall, 1 Sid. 68. 76 Am. Dec 780; Anderson v. 11 Johnson v. State, 26 N. J. L. Com., 5 Rand. 627, 16 Am. Dec. (2 Dutch.) 313; R. v. Best, 2 Ld. 776; R. v. Delaval, 3 Burr. 1434, Raym. 1167, 92 Eng. Repr. 272, 97 Eng. Repr. 913; R. v. Mears, 1 Salk. 174, 91 Eng. Repr. 160. 2 Den. C. C. 79; R. v. HoweJl, As to form of indictment, see 4 Post. & F. 160. Form No. 653. IB State v. Murphy, 6 Ala. 765, 12 R. V. Armstrong, 1 Ventr. 304. 41 Am. Dec. 79. 654 CRIMINAL PROCEDURE. §532 tain man was married to one of the accused, and thus to prevent him from contracting another marriage, is suffi- cient where it sets out overt acts to carry the conspiracy into effect by one of the accused personating the party to be injured, another performing the alleged ceremony and certifying the same for record, and the woman sup- posed to be married causing the false certificate to be re- corded, and publicly assuming to be the wife of such per- son.^* ■ Conspiracy to injure property or busi- §532. - NESS. A combination and confederation of persons to ruin the business of another is unlawful,^ even though it may not be criminal.^ Thus, a combination in business, 16 Com. V. Waterman, 122 Mass, 43. 1 Beck V. Railway Teamsters' Protective Union, 118 Mich. 497; 74 Am. St. Rep. 421, 42 L. R. A, 407, 77 N. W. 13. Combination of persons to in jure another's business is not ren- dered lawful by the fact that the acts contemplated might lawfully be done by an individual. — Loewe V. California State Federation of Labor, 137 Fed. 7. Combination of employees to compel railroad to stop using cars manufactured by certain corpora- tion, unlawful. — Thomas v. Cincin- nati, N. O. & T. P. R. Co., 62 Fed. 803, 4 Inters. Com. Rep. 78«. Combination of persons to In- duce carrier not to handle freight from another carrier is unlawful. —Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co., 54 Fed. 730, 5 Inters. Com. Rep. 522, 19 L. R. A. 387. Combination of persons to pro- cure employees to quit employ- ment or services, unlawful. — ^Ar- thur V. Oaks, 11 C. C. A. 209, 24 U. S. App. 293, 63 Fed. 310, 4 Inters. Com. Rep. 744, 25 L. R. A. 414. Combination of printers to in- terfere with another printer's business and induce his employ- ees to leave him in order to com- pel him to do printing at their price is unlawful. — Employing Printers' Club v. Doctor Blosser Co., 122 Ga. 512, 106 Am. St. Rep. 137, 2 Ann. Cas. 604, 69 L. R. A. 93, 50 S. B. 353. 2 Injunction lies to restrain con- spiracy to injure a person's busi- ness, though act is not criminal. — Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 128 Am. St. Rep. 492, 22 L. R. A. (N. S.) 607, 114 S. W. 997; Longshore Printing Co. v. Howell, 26 Ore. 527, 46 Am. St. Rep. 640, 28 L. R. A. 464, 38 Pac. 547. Injunction lies to prevent com- bination of persons from injuring another's business by Intimidating employees. — American Steel & Wire Co. T. Wire Drawers & Die § 532 CRIMINAL CONSPIEACT. 655 by corporations or individuals, to operate a certain class of business in a particular manner and to draw business from other and competing corporations or individuals, is not an actionable or a criminal conspiracy;* however, such a combination not in free competition of trade, nor for the sole benefit of the business, but to induce the with- drawal of custom from another, solely for the purpose of wantonly injuring such other, is entirely a different prop- osition.* Charging that two or more named persons con- certed together, using substantially the language of the statute, for the purpose of maliciously injuring another in his business, is good.^ Charging accused did conspire, confederate, and agree together to prevent and deter, by violence and threats and intimidation, certain named per- sons from continuing in or further engaging in the manu- facture of a named article or commodity, is sufficient.* Charging an agreement between several independent con- cerns, each publishing a newspaper and furnishing thereby a means of advertising, to compel a fourth per- son engaged in like business to' reduce his rates for ad- vertising or lose customers, states a malicious purpose to injure another in his business within the inhibition of the statute.'^ Information charging conspiracy to prevent named persons from fishing in the waters of Puget Sound, because they did not belong to a certain association, is sufficient without alleging that the persons against whom Makers' Union, 90 Fed. 608; 112 Am. St. Rep. 922, 6 Ann. Cas. Union Pac. R. Co. v. Reuf, 120 602, 4 L. R. A. (N. S.) 1144, 63 Atl. . Fed. 102. 225. „^ ^ ^^. . , m /-i~ „ '' State ex rel. Burner v. Huegln, « J . . iTr .Yw'vf fill' 110 Wis. 189, 62 L. R. A. 700. 85 ' Standard Oil Co 50 W. Va. 611, ^^^^^ Wisconsin. S8 Am. St. Rep. 895, 40 S. B. 591. ^^^ ^ ^ ^^^^ ^^ ^_ ^^ ^^^^ ^5 * Id- Sup. Ct. Rep. 3, affirming 113 Wis. 5 State ex rel. Burner v. Huegin, 419^ gg n. W. 1135. See Hawarden 110 Wis. 189, 62 L. R. A. 700, 85 y. Youghiogheny & L. Coal Co., N. W. 1046. Ill Wis. 550, 55 L. R. A. 831, 87 8 State V. Duncan, 78 Vt. 264, N. W. 472, 656 CEIMINAIi PEOCEDURB. § 532 the conspiracy was directed had a lawful right to engage in the fishing business.* Corporations are within the protection of the rule of law treated in this section, and an indictment charing a conspiracy to injure business and property through caus- ing a decline in the market-value of named stocks by spreading divers false and injurious rumors, "well know- ing the premises, and that the said false and injurious rumors would occasion a decline of the stock," sufficiently states a criminal conspiracy and offense under a statute* denouncing and prohibiting the circulation of such false and injurious rumors and statements;^" charging con- spiracy to falsely represent to the members and share- holders of a corporation, named that it was insolvent, for the purpose of securing a sufficient number of members to petition for a receiver, with the fraudulent intent to injure the business and property of the corporation, suffi- ciently charges a criminal conspiracy to injure business and property." A charge of conspiracy to obstruct the business of a corporation, and so forth, under statute,^^ need not allege specific overt acts done in pursuance of the conspiracy ;^* and an allegation of conspiracy to pre- vent a corporation from taldng into its employment cer- tain designated persons or class of persons, need not set out the terms of the intended employment.^* Employees and workmen, it has been said, may lawfully associate themselves together, combine and agree not to work for or deal with certain men or classes of men, or work under certain wages, or without specified condi- 8 state V. Mardeslch, 79 Wash. ii Towne v. People, 89 111. App. 204, 140 Pac. 573. 258. 9 As N. Y. Pen. Code, § 435. 12 As Mich. Stats. 1887, § 9275. 10 People V. Goslln, 67 App. DIv. is People v. Petheram, 64 Mich. (N. Y.) 16, 16 N. Y. Cr. Rep. 255, 252, 31 N. W. 188. 73 N. Y. Supp. 520, affirmed, 171 14 State v. Stewart, 59 Vt. 273, N. Y. 627, 63 N. E. 1120. 59 Am. Rep. 710, 9 Atl. 559. § 532 CRIMINAL CONSPIRACY. 657 tions/^ because a combination of men to advance their own good is not unlawful unless they use improper means, even if their union prevents other men from taking their places;^® consequently, members of a labor union may lawfully agree not to work for an employer who employs nonunion men, or uses materials supplied by a person em- ploying nonunion men;" or seamen may combine and agree not to ship at less than a specified rate of wages ;^ * but a conspiracy by workmen to injure a man's business by strikes, boycotts, and so forth, is criminal,^® because any combination of persons to injure another without any just or legal cause, such as an injury that is not an inci- dental effect of the promotion of the legitimate interests of the members of the combination, is a conspiracy to inflict a malicious injury upon another at common law, and is such an injury under statute where it relates to such other's reputation, business, trade or profession.^" Indictment or information alleging a conspiracy to pre- vent an employer from carrying on his business, charges a crime both at common law and under the statute f- so also does an indictment charging a combination of two or more persons to constrain an employer to discharge particular workmen, by threatening to prevent his ob- is carew V. Rutherford, 106 227, 107 Am. St. Rep. 28, 58 Atl. Mass. 1, 14, 8 Am. Rep. 287. 769. 16 AUis- Chalmers. Co. v. Iron An Indictment charging that de- ■ -r^r . iirn T-i /I 1/71 fGudants "did then and there un- Molders' Union, 150 Fed. 171. , , „ ,,. lawfully comhme, conspire, con- 17 J. F. Parkinson Co. v. Build- federate, and agree together to ing Trades Council, 154 Cal. 608, prevent, hinder, and deter by vlo- 16 Ann. Gas. 1165, 21 L. R. A, lence and threats and intimidation (N. S.) 564, 98 Pac. 1027. the said (the company against 18 Brown V. Matherson, 96 Mass. whom conspiracy was entered) (14 Allen) 503. 19 See, infra, § 537 from further engaging and contin- uing in the business of manufac- turing granite, to the great dam- 20 State ex rel. Durner t. Hue- ^^^ ^^ ^^^^„ company, is good.— gin, 110 Wis. 189, 62 L. R. A. 700; gjate v. Duncan, 78 Vt. 364, 6 Ann. 85 N. W. 1046. Cas. 602, 112 Am. St. Rep. 922, 21 State V. Stockford, 77 Conn. 4 L. R. A. (N. S.) 1144, 63 Atl. 225, I. Crlm. Proo. — 42 658 CRIMINAL PROCEDURE. § 532 taining others ;^^ or charging a combination to prevent, by violence and intimidation, an employer from retaining in his employment certain persons, or other employees from entering his service.^* The indictment need not set out the means by which the conspiracy was to be accom- plished,^* or allege knowledge on the part of the accused of the wrongful character of the matters and things charged against them.-^ An indictment was held good and sufficient which charged that the accused, with divers others unknown, on the day and at the place named, being workmen and journeymen in the art and occupation of bootmakers, unlawfully, perniciously, and deceitfully de- signing and intending to continue, keep up, form, and unite themselves into an unlawful club, society, and com- bination, and make unlawful by-laws, rules, and orders among themselves, and thereby govern themselves and other workmen in the said art, and imlawfuUy and un- justly to extort great sums of money by means thereof, did unlawfully assemble and meet together, and being so assembled, did unjustly and corruptly conspire, combine, confederate, and agree together that none of them should thereafter, and that none of them would, work for any master or person whatsoever, in the said art, mystery, and occupation, who should employ any workman or jour- neyman, or other person in the said art, who was not a member of said club, society, or combination, after notice given him to discharge such workman from the employ- ment of such master ; to the great damage and oppression, etc.2« 22 See Purvis v. Local No. 500, 24 State v. Noyes, 25 Vt. 415, U. B. C. & J., 214 Pa. St. 438, 112 422; State v. Stewart, 59 Vt. 273, Am. St. Rep. 757, 6 Ann. Cas. 275, 59 Am. Rep. 710, 9 Atl. 559. 12 L. R. A. (N. S.) 642, 63 Atl. 585. 25 State v. Stewart, 59 Vt. 273, 23 State V. Stewart, ,59 Vt. 273, 59 Am. Rep. 710, 9 Atl. 559. 59 Am. Rep. 710, 9 Atl. 559. . 26 Com. v. Hunt, 45 Mass. (4 Compare: State v. Van Pelt, Mete.) Ill, 38 Am. Dec. 346, over- 136 N. C. 633, 1 Ann. Cas. 495, 68 ruling Thatch. Cr. Cas. 609. We L. R. A. 700, 49 S. E. 177. are Inclined to agree with Mr. § 533 CRIMINAL CONSPIEACT. 659 § 533. CONSPIEAOY TO BLACKMAIL AND TO EXTOET MONEY. An indictment or information charging a con- spiracy to blackmail and to extort money, charges an offense at common law, and need not set out the unlawful means to be used in carrying the conspiracy into effect;^ but an allegation as to the means employed will not ren- der bad an indictment or information otherwise suffi- cient.^ The allegation should be that two or more accused conspired to extort money from a named person* by false charges ;* it is unnecessary to aver that the intended vic- tim was innocent or in terms that he was falsely charged.® Thus, an indictment charging a conspiracy between a man and a woman to extort money from a named person by "charging and accusing" that he had committed adul- tery with the woman, "with the intent thereby then and there unjustly and unlawfully to obtain and acquire to them divers sums of money from" the named individ- ual "for compounding the said pretended adultery so falsely and maliciously charged on him as aforesaid," Chief Justice Shaw in the view 3 No person named from whom that the preamble and introduc- money, etc., to be extorted, the In- tion to this Indictment, being mere dictment or information can not recitals, are not traversable, and ^^ sustained.— Com. v. Andrews, therefore could not be looked to in aid of an imperfect averment of the facts constituting the description 132 Mass. 263. Criminality of charge not nec- essary, because the offense con- sists in the corrupt combination of the offense sought to be ^^ ^^.^^^ ^^^ designated person charged; but that, stripped of the ^^ ^^^^^ charges.-R. v. Respal, 1 introductory recitals and unneces- ^^^ gj ggg^ gg ^^ ^^^ ^^^^ sary qualifying epithets attached g^g^ 3 ^^^ ^^^^^ ^^ ^^^ ^^^^ to the facts, the averment is good. ggg. The manifest intention of the as- ^^^^ ^ O'Brien, 66 Mass. (12 sociation as set out was an un- ^^^^^ g^. ^^^ ^_ Andrews, 132 lawful purpose. jja,ss. 264. 1 Johnson v. State, 26 N. J. L.. 5 Johnson v. State, 26 N. J. L. (2 Dutch.) 323; R. v. HolUnberry, (2 Dutch.) 323; R. v. Spragg, 2 4 Bam. & C. 329, 10 Eng. C. L. B^-r. 993, 97 Eng. Repr. 669; R. ^. 323. Best, 1 Salk. 174, 91 Eng. Repr. 2 See State v. Glidden, 55 Conn. 16ff, 2 Ld. Raym. 1167, 92 Eng. 46, 3 Am. St. Rep. 23, 8 Atl. 890. Repr. 272. 660 CRIMINAL PEOCEDUEE. § 534 was held to sufficiently charge the offense of conspiracy to extort money.* Surplusage' in an indictment .charging a conspiracy to extort money will be disregarded. Thus where the alle- gation charged accused conspired "by false pretenses and subtle means and devices, to extort from" a named person designated moneys, and the proof failed to show that accused employed any false pretenses in the attempt to obtain the money, the court held that the allegation as to the use of false pretenses should be rejected as sur- plusage.® Conspiracy to extort money under cover of office being charged in an indictment, by taking from certain named persons and others unknown, "as and for fees and re- wards,^ emoluments, and pay for obtaining and procuring the electing of them," naming the persons, "to the position of School teachers " in a designated public school or schools, is sufficient without an allegation that the pay- ment and payments was and were not made voluntarily, or stating that the money was exacted and taken as and for a fee for official services.® § 534. CONSPIEAOY TO INTEEFEEE WITH CIVXL BIGHTS. An indictment charging a conspiracy to "injure, oppress, threaten, or intimidate" a named person in the free ex- ercise of any right or privilege secured by the constitu- tion or laws of the United States, must allege that the person or persons conspired against were citizens of the United States ;i and the indictment must show on its face such acts that, if proved as alleged, will support a convic- tion for the offense charged.'' 6 Com. V. Andrews, 132 Mass. 9 Com. v. Brown, 23 Pa. Sup. 263. Ct- 4''0- 1 United States v. Patrick, 53 7 As to surplusage generauy, ^^^ ^^g see, supra, § 200. 2 United States v. Crulkshank, 9R. V. Yates, 6 Cox C. C. 441. 92 U. S. 542, 23 L. Ed. 588. § 534 CEIMINAL CONSPIBAOT, 661 Elective franchise.^ An indictment under federal stat- ute, sec. 5520,* charging a conspiracy to prevent a named voter from giving his advocacy and support in favor of a named candidate, need not set out the acts of advo- cacy and support which were to be prevented by the con- spiracy f and it is not necessary either to allege or prove that the conspiracy was against the named voter alone, it being sufficient if he was among the voters actually conspired against f and an indictment under section 5508 of the same statute,'^ charging that accused conspired to injure, and so forth, certain designated male citizens over the age of twenty-one years "in the free exercise and en- joyment of a right and privilege secured to them," is insufficient by reason of its failure to designate the par- ticular right and privilege in which they were to be in- jured f but a charge, under this statute, of a conspiracy "to injure, oppress, threaten and intimidate" designated "colored men in the exercise of their right to vote, to which right they were entitled by law, on account of race and color," was held to be sufficient "without charging in terms the right injured was the right to vote.' Rights on public domain.^" An indictment under fed- eral statutes, sec. 5508,". charging conspiracy to prevent a named citizen from enjoying his right to prospect for minerals and perfect his title to a mining claim upon the public lands, imder the laws of the United States, 3 As to forms of indictment for TJ. S. Grim. Code, § 19, 3 Kerr's conspiracy to prevent enjoyment WTiart. Crlm. Law, p. 2429. of elective franchise, see Forms 8 McKenna v. United States, 62 Nos. 701, 702. C. C. A. 88, 127 Fed. 88. See 4 XT. S. Rev. Stats., § 5520, 2 Fed. United States v. Cruikshank, 92 Stats. Ann., 1st ed., p. 871. U. S. 542, 28 L. Ed. 588. 5 United States v. Goldman, 3 » United States t. Lackey, 99 Woods 187, Fed. Gas. No. 15225. Fed. 952. « United States v. Butler, 1 lo As to form of indictment for Hughes 457, Fed. Gas. No. 14700. conspiracy to prevent homestead T U. S. Rev. Stats., § 5508, 1 Fed. entry, see Form No. 700. Stats. Ann., 1st ed., p. 802, now ii See footnote 6, this section. 662 CRIMINAL PEOCEDUEE. § 535 must set out the acts constituting the conspiracy ;^^ but an indictment charging a conspiracy to prevent a named person from exercising his right to secure a homestead upon the public domain, by accused who went disguised upon the land upon which he had made a homestead entry, and with force and arms drove him from the same, was held to sufficiently charge the offense under this stat- ute.i» § 535. Conspiracy in restraint or trade or com- merce.^ Agreements or combinations in restraint of trade, or contrary to public policy, though invalid, are not necessarily illegal in the sense of giving a right to an injunction or a right to an action for damages by a third party for injury,^ or laying the parties liable to a criminal prosecution for conspiracy. The test of legality, under the federal anti-trust law of 1890,^ is whether it is the necessary effect of such agreement and combination to stifle, or directly and substantially restrict, free com- petition in commerce among the states ;* undue restraints 12 Haynes v. United States, 42 terpretation goes far to nullify the C. C. A. 43, 101 Fed. 817. wholesome provisions of the act 13 United States v. Waddell, 112 by declaring and giving a mean- U. S. 76, 28 L. Ed. 673, 5 Sup. Ct. ing which does not destroy the Rep. 35. individual's right to contract to 1 As to forms for Indictments, the injury and restraint of free see Forms Nos. 686-689. competition in interstate and for- 2 National Fireproofing Co. v. eign trade and commerce. See Mason Builders' Assn., 94 G. C. A. United States v. American To- 535, 169 Fed. 263, 26 L. R. A. bacco Co., 221 U. S. 106, 55 L. Ed. (N. S.) 154. 663, 31 Sup. Ct. Rep. 632, and 3 Act July 2, 1890, ch. 647, 26 Standard Oil Co. v. United States, Stats, at Li. 209, 7 Fed. Stats. 221 U. S. 1, 55 L. Ed. 619, 31 Sup. Ann., 1st ed., p. 340. Ct. Rep. 502, 34 L. R. A. (N. S.) This act condemns combina- 834. tions in restraint of interstate or 4 Whitwell v. Continental To- foreign trade or commerce, or the bacco Co., 60 C. C. A. 290, 125 Fed. monopolization, or any attempt to 458, 64 L. R. A. 694. See Yazoo monopolize, any part of such in- & M. Valley R. Co. v. Searles, 85 terstate or foreign trade or com- Miss. 539, 68 L. R. A. 715, 37 So. merce; but the court's judicial in- 939; Cumberland T. & T. Co. v. § 535 CRIMINAL CONSPIRACY, 663 upon competition or upon interstate commerce, only, under the interpretation of the federal supreme court, are inhibited by this statute.® Thus it has been held that a rule of a board of trade requiring the members thereof to charge a uniform commission for services in making sales does not violate the statute denouncing and punish- ing trusts and monopolies.* In indictment or information charging a criminal con- spiracy in the entering into an agreement in restraint of trade, and in pooling and fixing the price of an article of trade or commerce, it is necessary to aver the names of all the parties to such a conspiracy known to the prose- cution ;'' but it is not essential to the sufficiency of such indictment or information that all of such parties be jointly charged with the commission of the offense.* An indictment or information framed under the federal stat- ute above named should contain a distinct averment, in the words of the statute or in equivalent language, that state, 100 Miss. 112, 39 L. R. A. opinion of Mr. Justice Harlan is (N. S.) 281, 54 So. 670. a monument of legal learning, and Reasonable restraint of trade fully lays down the rules as to permissible where such only as judicial prerogative and power in affords fair protection to interest Interpreting and applying stat- of party in favor of whom given, utes, and shows plainly the ma- and not so large as to interfere jority opinion overstepped this with public interest. — Cumberland judicial power and usurped the T. & T. Co. V. State, 100 Miss. prerogative of another depart- 112, 39 L. R. A. (N. S.) 281, 54 ment of the government— that of So. 670. the legislative department. 5 Standard Oil Co. v. United 6 State v. Duluth Board of States, 221 V. S. 1, 55 L. Ed. 619, Trade, 107 Minn. 539, 23 L. R. A. 31 Sup. Ct. Rep. 502, 34 L. R. A. (N. S.) 1277, 121 N. W. 395. (N. S.) 834; United States v. 7 State v. Dreany, 65 Kan. 292, American Tobacco Co., 221 U. S. 12 Am. Or. Rep. 626, 69 Pac. 182. 106, 55 L. Ed. 663, 31 Sup. Ct. Rep. 8 State v. Dreany, 65 Kan. 292, 632. 12 Am. Or. Rep. 626, 69 Pac. 182. These cases severely criticized See People v. Richards, 67 Cal. because the Supreme Court, by 412, 56 Am. Rep. 716, 725, 7 Pac. judicial construction, wrote into 828; Heine v. Com., 91 Pa. St. the statute words congress had 145; United States v. Miller, 3 on two different occasions refused Hughes 553, Fed. Cas. No. 15774. to insert therein. The dissenting See, also, supra, § 519. 664 CRIMINAL PBOCEDUEE. § 536 by means of the act or acts charged the accused had mo- nopolized, or had combined or conspired to monopolize, trade and commerce among the several states and with foreign nations, where such is the fact.* "Elkins Act"^^ charged to have been violated, the in- dictment will be good where it is so framed as to show a conspiracy among the accused, or the accused and other persons or corporations named though not made parties to the prosecution, to defeat the provisions of the inter- state commerce law ;^^ and where the charge is of a con- spiracy to induce a named party or firm or corporation to receive rebates in violation of the act, it will be sufficient without setting out the name of the party who it was proposed should give the rebate, where the giver or givers ■ are described as the railroads and their connecting lines engaged in interstate commerce between the point or points of shipment and the point of destination at which the rebate or rebates was or were to be paid.** § 536. CONSPIKACY TO IMPEDE DXTB ADMINISTKATION OF LAWS OR TO 0BSTKX7CT JUSTICE.* An indictment or infor- mation charging a conspiracy to impede the due admin- istration of the laws, or to obstruct or defeat justice, need not allege the consummation of the corrupt agreement,^ because the conspiracy is the gist of the offense f neither 9 United States v. Greenhut, 50 Fed. 698; Wabash R. Co. v. Han- Fed. 469. nahan, 121 Fed. 563. 10 Act Feb. 19, 1903, ch. 708, 32 12 Thomas v. United States, 84 Stats, at L. 847, 10 Fed. Stats. C. C. A. 477, 156 Fed. 897, 17 Ann. 1st ed., p. 170. L. R. A. (N. S.) 720. 11 Thomas v. United States, 84 1 As to forms of Indictment or C. C. A. 477, 156 Fed. 897, 17 information on a charge of a con- L. R. A. (N. S.) 720. See Toledo, spiracy to impede due adminis- A. A. & N. M. R. Co. V. Pennsyl- tration of the laws or to obstruct vania Co., 54 Fed. 730, 19 L. R. A. or defeat justice, see Forms Nos. 387, 5 Inters. Com. Rep. 522; 690-694. Waterhouse V. Comer, 55 Fed. 149, 2 As to accomplishment of ols 19 L. R. A. 403, 5 Inters. Com. ject, see, supra, § 525. Rep. 564; United States V. Howell, 3 State v. Noyes, 25 Vt. 415; 56 Fed. 21, 4 Inters. Com. Rep. United States v. Hirsch, 100 U. S. 818; United States v. Cassidy, 67 33, 25 L. Ed. 539 (although to §536 CRIMINAL CONSPIEAOT. 665 is it necessary to allege the means* by wMch the con- spiracy was to be carried into effect,^ or any overt act or acts' in pursuance of the conspiracy — ^in the absence of such a requirement in the statute under which the indictment or information is drawn;'' but in those cases in which guilty knowledge and intent^ form an ingredient of the offense, the scienter must be alleged.® Thus, where the charge is a conspiracy to interfere with an officer in the due discharge of his official duty — e. g., resisting an officer — the indictment must allege that the accused knew that the person was a public officer and the nature of the duties he was called upon to discharge.^" complete the conspiracy some act to effect the object is necessary) ; Pettibone v. United States, 148 tr. S. 197, 202, 37 L. Ed. 419, 422, 13 Sup. Ct. Rep. 542. 4 As to allegation of means by which conspiracy to be effected, see, supra, § 516. 5 State V. Bartlett, 30 Me. 132; State V. Ripley, 31 Me. 386; State V. Noyes, 25 Vt. 415, 422. 6 State V. Ripley, 31- Me. 389. See, also, supra, §§ 523, 524. Suppressing testimony — Suffi- ciency of Indictment charging con- spiracy to induce witness to sup- press his testimony alleging that accused "did unlawfully, wilfully, and corruptly, hire, persuade," and so forth, "the said witness to withdraw himself from the juris- diction, state and county, and withhold his testimony from the grand jury, was upheld, the court saying that the overt acts re- quired by the statute to be alleged in the indictment were clearly and distinctly alleged.— People v. Chase, 16 Barb. (N. Y.) 498. 7 People V. Chase, 16 Barb. (N. Y.) 498; Pettibone v. United States, 148 U. S. 197, 37 L. Ed. 419, 13 Sup. Ct. Rep. 542; Mussel Slough Case, 6 Sawy. 612, 5 Fed. 680. 8 As to knowledge and intent, see, supra, § 517. 9 Pettibone v. United States, 148 U. S. 197, 37 L. Ed. 419, 13 Sup. Ct. Rep. 542. 10 See State v. Perry, 109 Iowa 353, 80 N. W. 401; Com. v. Kirby, 56 Mass. (2 Cush.) 577; State v. Hilton, 26 Mo. 199; State v. Phipps, 34 Mo. App. 400; State V. Reason, 40 N. H. 367; Yates v. People, 32 N. Y. 509; State v. Smith, 11 Ore. 205, 8 Pac. 343; State V. Maloney, 12 R. I. 251; State V. Hailey, 2 Strobh. L. (S. C.) 73; Duncan v. State, 26 Tenn. (7 Humph.) 148; Koran v. State, 7 Tex. App. 183; State v. Downer, 8 Vt. 424, 30 Am. Dec. 482; State v. Burt, 25 Vt. 373; State V. Carpenter, 54 Vt. 551; Com. V. Isreal,,4 Leigh (Va.) 675; Pettibone v. United States, 148 U. S. 197, 37 L. Ed. 419, 13 Sup. Ct. Rep. 542; United States v. Bittinger, 21 Int. Rev. Rec. 342, 15 Am. L. Reg. (N. S.) 49, Fed. 666 CRIMINAL PROCEDURE. § 536 Instances — impeding administration of the laws: Charging a conspiracy to defraud the devisees of a named person by destroying the last will and testament of such person, is sufficient to charge acts the tendency of which is to corrupt or impede the course of justice.^^ Charging accused with entering into an agreement by the terms of which A was to secure a public office for B on the terms and conditions that B should make no appoint- ment of subordinates in such office without A's approval, and should dismiss such subordinates as A should direct, and that B should place his resignation from such office in A's hands whenever the latter should so demand, is a sufficient charge of a conspiracy to impede the due admin- istration of the law.^^ Charging a conspiracy to violate the election laws by procuring the concealment of the list of voters from the public until after an election, is suffi- cient without charging a conspiracy to fraudulently pro- cure designated results at such election, as the election or defeat of specified candidates, of which such conceal- ment was a part ;^^ eAddence of the latter fact being ad- missible on the trial without such an allegation.^* Obstructing or defeating justice. Charging a con- spiracy to obtain a certain counterfeit bill from the hands of one to whom it had been uttered, to the end that it might be secreted or destroyed and not be available as evidence upon a criminal prosecution in relation to maJc- ing, having or passing such counterfeit bill, is sufficient to charge a conspiracy to obstruct the administration of public justice.^' Charging accused with having conspired Cas. No. 14598; United States v. pointment to public office, see Kee, 39 Fed. 603; R. v. Osmer, 5 Form No. 694. East 304. 13 People v. McKane, 143 N. Y. 11 State V. DeWitt, 2 Hill L. 455, 9 N. Y. Cr. Rep. 377, 38 N. E. (S. C.) 282, 27 Am. Dec. 371; 950. O'Hanlon v. Myers, 10 Rich. L. I4 1d. (S. C.) 128. 15 State v. Bartlett, 30 Me. 132. 12 People V. Squire, 20 Abb. As to indictment for suppres- N. C. 368, 6 N. Y. Cr. Rep. 262. sion of evidence, see Form No. As to conspiracy to secure ap- 691. § 537 CRIMINAL CONSPIKACT, 667 to induce named persons to secrete themselves or to leave the state so that they could not be secured as -witnesses at the trial of a named person or persons then under indict- ment and soon to be tried in the criminal court, sufficiently charges a criminal conspiracy to obstruct the adminis- tration of justice.^® Charging a conspiracy to destroy a criminal warrant and a recognizance thereunder for the appearance of a defendant in a criminal proceeding, the indictment referring to the warrant and recognizance by way of recital, only, without stating by whom the warrant was issued, or before whom the recognizance was taken, and without setting forth the substance of the warrant and recognizance, is insufficient.^'' Charging that, before a trial was had before a jury in a justice's court, accused unlaAvfuUy conspired and agreed with others named or declared to be unknown, for a promised consideration, to enable others to be selected and sworn as jurors to try the cause, and to procure to be rendered a verdict for the defendant in said action, setting out the means by which the conspiracy was consummated, held sufficient;^* such an indictment or information need not allege that the justice of the peace had jurisdiction to try the cause.^^ § 537. Conspiracy to boycott, control wages or WORKMEN, STRIKE, AND THE LIKE. The Criminal character of a boycott has been discussed and the authorities cited elsewhere ;^ suffice it to say in this place that a conspiracy by means of a boycott^ to intimidate and force another to 16 Tedford v. People, 219 111. 23, 2 Boycott Is a combination of 76 N. E. 60; People v. Chase, 16 persons to cause loss to another Barb. (N. Y.) 495. . unless he complies with their de- 17 State V. Enloe, 20 N. C. (4 mands. — Gray v. Building Trades Dev. & B.) 373. Council, 91 Minn. 171, 103 Am. isO'Donnell v. People, 110 111. St. Rep. 477, 1 Ann. Cas. 172, 63 App. 250, affirmed in Gallagher v. L. R. A. 753, 97 N. W. 663. People, 211 III. 158, 71 N. E. 842. Boycott by member of a trades 19 Id. union is unlawful, and may be re- 1 See 2 Kerr's Whart. Grim. Law, strained by court of equity. — p. 1787. American Federation of Labor v. 668 CRIMINAL PEOCEDUEE. §537 do an act lie lias a legal rigM to abstain from doing, or to abstain from doing an act he has a legal right to do,* is an indictable offense.* An indictment or information charging such a conspiracy is governed by the ordinary rules governing indictments and informations, already fully discussed in this title, and need not specifically set out the kind of threats made or the method of intimida- tion employed;^ but it must be alleged in the indictment or information, and proved on the trial, that the actual object of the association was criminal, whether that was the avowed object or not.* Combination to control wages, by workmen, was a crim- inal conspiracy indictable at common law ;'' but it is now the well established law in this country that trades unions and labor organizations may combine to maintain wages, or to limit the number of apprentices, without becoming liable to a charge of criminal conspiracy;* that is to say agreements and combinations among workmen, for the Buck's stove & Range Co., 33 App. D. C. 83, 33 L. ,R. A. 748; Longshore Printing Co. v. Howell, 26 Ore. 527, 46 Am. St. Rep. 640, 38 Pac. 547; Hopkins v. Oxley Stave Co., 28 C. C. A. 40, U. S. App. 709, 83 Fed. 912. 3 State V. Glidden, 55 Conn. 46, 3 Am. St. Rep. 23, 8 Atl. 890; State V. Donaldson, 32 N. J. L. (3 Vr.) 151, 90 Am. Dec. 649; People V. Wilzig, 4 N. Y. Cr. Rep. 403; People v. Trequler, 1 Wheel. Cr. Cas. (N. Y.) 142; Com. v. Sheriff, 15 Phila. (Pa.) 393; Old Dominion Steamship Co. v. Mo- Kenna, 30 Fed. 89, 18 Abb. N. C. 262; Wright on Crim. Consp., p. 145. i Funk V. Farmers Elevator Co., 142 Iowa 621, 24 L. R. A. (N. S.) 108, 121 N. W. 53; Branson v. Industrial Workers, 30 Nev. 270, 95 Pac. 354. Conspiracy to boycott by threat- ening customers, whereby a per- son's business is greatly Injured, Is an indictable offense. — Crump v. Com., 84 Va. 940, 10 Am. St. Rep. 896, 6 S. E. 620. B State v. Stewart, 59 Vt. 273, 291, 59 Am. Rep. 710, 719, 9 Atl. 559; Crump v. Com., 84 Va. 927, 10 Am. St. Rep. 895, sub nom. Crump's Case, 6 S. E. 620. 8 Com. V. Hunt, 45 Mass. (4 Mete.) Ill, 38 Am. Dec. 346, re- versing Thatch. Cr. Cas. 609. 7 People V. Fisher, 14 Wend. (N. Y.) 9, 28 Am. Dec. 501. See, also, discussion and au- thorities cited in 2 Kerr's Whart. Crim. Law, § 1633. 8 Longshore Printing Co. v. Howell, 26 Ore. 527, 46 Am. St. Rep. 640, 28 L. R. A. 464, 38 Pac. 547. § 537 CEIMINAIi CONSPIKACT. 669 purpose of controlling the wages they shall receive, are not unlawful in the sense that they are criminal combina- tions, unless they are for the purpose of acts or omissions, either as ends to he attained or as means to be used, which would be unlawful apart from the agreement or combina- tion;® and particularly is this true so long as the work- men are free from engagement, and have an option to enter an employment or not as they see fit,^" although the case may be different when they are already under an engagement and the contract wage is sought to be forced up by them. The purpose of the association must be pro- moted and accomplished in an orderly and peaceful man- ner within their rights as citizens, and without trampling upon or infringing upon the rights of any other citizen or class of citizens ; whenever they overstep these boun- daries their acts become unlawful, and an agreement or combination to maintain or advance wages, to be accom- plished by unlawful means, becomes' a criminal conspiracy amenable to the criminal courts. Combination to control workmen may or may not be unlawful and render the members of the organization lia- ble to indictment and prosecution for a criminal con- 9 Cole V. Murphy, 159 Pa. St. their own protection and to ob- 420, 39 Am. St. Rep. 686, 28 Atl. tain such wages as they choose to 190. agree to demand." — R. v. Row- 10 See Com. v. Hunt, 45 Mass. l^^^^s, 17 Ad. & E. N. S. (17 Q. B.) (4 Mete.) Ill, 130, 38 Am. Dec. 346, reversing Thatch. Cr. Cas. 671, 79 Eng. C. L. 670, 5 Cox C. C. 436, 460. „ i^ , ^ ..«o "With respect to the law, relat- 609; Carew v. Rutherford, 106 j^^ ^^ combination of workmen, Mass. 1, 8 Am. Rep. 287; State v. nothing can be more clearly estab- Donaldson, 32 N. J. L. (3 Vr.) 151, Ushed in point of law than that 90 Am. Dec. 649; Master Steve- workmen are at liberty, while dores' Assn. v. Walsh, 2 Daly they are perfectly free from en- (N. Y.) 1; R. V. Rowlands, 17 Ad. gagement, and have the option & E. N. S. (17 Q. B.) 671, 79 Eng. of entering an employment or C. L. 670, 5 Cox C. C. 436, 460; not, have a right to agree among R. V. Duffleld, 5 Cox C. C. 404, 431; themselves not to go into employ- R. V. Hibbert, 13 Cox C. C. 82. ment unless they get a certain "The law is clear that work- rate of wages." — B.. v. Duflield, 5 men have a right to combine for Cox C. C. 404, 431. 670 CRIMINAL PROCEDURE. § 537 spiracy.^^ The objects of labor organizations and trades unions can not be promoted by making war upon non- union laboring men, or by illegal interference with the rights and privileges of such non-union men;^^ they must depend for their membership upon the free choice of each member, and his perfect freedom of action, and not resort to any violence, threats, intimidation, or other com- pulsory methods in matters concerning membership or the enforcement and observance of their rules and regula- tions.^* Thus, a combination of workmen to compel an employer to discharge another workman or workmen because they are non-union men, or for any other reason, and to employ such workmen, only, as the combination shall direct or approve, renders them liable to prosecu- tion on the charge of a criminal conspiracy ;^* and a com- bination of two or more to hinder and prevent the employ- ment of certain persons by intimidation, threats, or vio- lence, is an indictable criminal conspiracy.^^ Indictment or information- charging conspiracy to cause employment of members of a certain organization 11 Cessation of work by two or 505; Erdman v. Mitchell, 207 Pa. more employees, under agree- St. 79, 99 Am. St. Rep. 783, 63 ment, upon employer's refusal L. R. A. 534, 56 Atl. 327. to discharge another employee, 13 Longshore Printing Co. v. whereby the work was stopped, Howell, 26 Ore. 527, 46 Am. St. held not to be a conspiracy. — Rep. 640, 28 L. R. A. 464, 38 Pac. Clemmitt v. Watson, 14 Ind. App. 547. 38, 42 N. E. 367. 14 State v. Glldden, 55 Conn. 45, Labor union forbidding mem- 3 Am. St. Rep. 23, 8 Atl. 890. bers to work with members of a Conspiracy to obtain from em- rival organization, and to procure pioyer money which he is under discharge of such other employees no obligation to pay, by inducing by threat to strike, held not to be his workmen to leave him, and a criminal conspiracy. — National deterring others from entering his Protective Assn. v. Gumming, 170 employment, or by threatening to N. Y. 315, 88 Am. St. Rep. 648, do so, is unlawful. — Carew v. 58 L. R. A. 135, 63 N. B. 369. Rutherford, 106 Mass. 1, 8 Am. 12 Lucks V. Clothing Cutters & Rep. 287. T. Assn., 77 Md. 396, 39 Am. St. 15 State v. Stewart, 59 Vt. 273, Rep. 421, 19 L. R. A. 408, 26 Atl. 59 Am. Rep. 710, 9 Atl. 559. § 537 CRIMINAL CONSPIRACY. 671 only, must set forth the means intended to be nsed;^' but an indictment or information under a statute punishing a conspiracy to obstruct individuals in the regular opera- tion of their business, by interfering with employees and the like, need not set out the means to be used to accom- plish the object or end of the conspiracy.^'' An indictment charging a conspiracy to prevent an employer from retaining or employing certain persons, or to deter em- ployees from entering his services, need not allege the means to be employed;^* and where the charge is a con- spiracy to force workmen to quit employment by the use of threats and intimidation, the indictment need not allege the nature of the threats and intimidation.^® The reason in both the foregoing cases is the fact that such acts in themselves constitute a common-law conspiracy.^" Conspiracy to keep operative out of employment, or to drive him out of present employment, it has elsewhere been pointed out,^^ is criminal.^^ An indictment or infor- mation charging conspiracy to drive a named mechanic or other employee out of present employment, and to prevent his securing future employment, because of his failure or refusal to join a labor-union organization, may charge the object or purpose of the conspiracy in the alternative to be to prevent such mechanic or other em- ployee "from obtaining work or employment or continu- ing in such work or employment" with a designated 16 Com. V. Hunt, 45 Mass. (4 59 Am. Rep. 710, 9 Atl. 559; R. v. Mete.) Ill, 38 Am. Dec. 346, re- Rowlands, 17 Ad. & EI. N. S. (17 versing Thatcher Cr. Gas. 609. Q- B.) 671, 79 Eng. C. L. 670, IT People V. Petheram, 64 Mich. ^ ^°^ ^- ^- 466- 252 31 N. W. 188. '' ^^^ ^ Kerr's Whart. Grim. Law, § 1635. 18 State V. Stewart, 59 Vt. 273. ^^ conspiracy by member* of 59 Am. Rep. 710, 9 AU. 559. ^^^^^^ y„,^„ ^^ j^j^^^ non-unionist 19 R. V. Rowlands, 17 Ad. & El. workman by depriving him of em- N. S. (17 Q. B.) 671, 79 Eng. G. L. pioyment, held an indictable mis- 670, 5 Cox 0. C. 466. demeanor.— E. v. Gibson, 16 Ont. 20 State V. Stewart, 59 Vt. 273, Rep. 704. 672 CRIMINAL PEOCEDUEE. § 537' person or corporation, "or in any other shops or works ' ' f^ and it is not necessary to set out the contem- plated means to be used.^* Conspiracy to strike and injure an employer in his property and business by leaving his employment in a body, to compel such employer to do or refrain from doing an act which he has the legal right to do or to refrain from doing, it has been pointed out elsewhere,^^ is an indictable offense. This was the common-law doctrine, and is still the law in many jurisdictions of the Union; but it may be said now to be the general rule of law in this country that strikes among workmen are not neces- sarily either unlawful or criminal,^' though they may become both illegal and criminal by reason of the means employed to enforce or attain their object.^^ But a con- spiracy of the members of a labor union to compel the members of another union to join the former in a strike and boycott is unlawful,^^ and a combination and con- spiracy to cause a strike to be declared for the purpose of destroying the business or property^® of another without 23 state V. Dyer, 67 Vt. 690, 10 Union, 165 Ind. 429, 6 Ann. Gas. Am. Cr. Rep. 227, 32 Atl. 814. 829, 2 L. R. A. (N. S.) 795, 75 N. E. 24 State V. Van Pelt, 136 N. C. ^'^'^- Pic^^ett v. Walsh, 192 Mass. 633, 1 Ann. Gas. 495, 68 L. R. A. ^^^' ^^^ Am. St. Rep. 272, 7 Ann. 760, 49 S. B. 177; Crump v. Com., C^^. 638, 6 L. R. A. (N. S.) 1077, 84 Va. 927, 10 Am. St. Rep. 895, '^^ N. B. 753; Morris Run Coal Co. sub nom. Crump's Case. 6 S. E. ^- ^''^' ^0 Pa. Co. Ct. 648, 14 Pa. 620- Reg. V. Selsby, 5 Cox 0. C. ^'^*- ^^P- ^O*: Allis-Chalmers Co. 495; Rex v. Eccles, 1 Leach C. C. "*"• ^'^°'^ Holders' Union, 150 Fed. 179. 27 Longshore Printing Co. v. Howell, 26 Ore. 527, 46 Am. St. Law, § 1633. Rgp_ 545^ gS L. R. A. 464, 38 Pac. 26 Strike to procure economic 547. advantage or other rights to the 28 Plant v. Woods, 176 Mass. strikers, under orders, to he car- 492, 79 Am. St. Rep. 330, 51 L. R. A. ried out, and actually carried out, 339, 57 N. B. 1011. In a peaceable manner, is not un- 29 As to conspiracy to injure the lawful. — See Karges Furniture Co. property or business of another, V. Amalgamated Woodworkers' see, supra, \ 532. 277. 25 See 2 Kerr's Whart. Crim. § 537 CRIMINAL CONSPIKACY. 673 just cause is both unlawful and criminal;^" and it is an indictable offense for employees to combine and notify their employer that they will leave his services in a body unless certain other employees are discharged.*^ Indictment or information charging a conspiracy to strike must allege facts and acts showing the object and purpose of the combination were unlawful and criminal, or that the object was to be or was attained by means un- lawful and criminal.*^ I. W. W. organisations are criminal conspiracies ab initio, because of the objects and purposes of the organ-: ization; they can and should be suppressed under exist- ing laws in every state in the Union. The object and purpose of the organization are not for the betterment and uplift of laboring men or the improvement of labor conditions, but for the purpose of sowing the seeds of dissension and discord throughout the land, for attacking the established order of things, insulting the flag of the country, and denouncing the government and the laws of the land. The members of the organization claim alle- giance to no country, adherence to no established form of government, respect neither the laws nor the rights of others, abuse the constitutional guaranty of the freedom of speech for the purpose of vilification of and vitupera- tion against governments and laws. "Freedom of speech" carries with it a corresponding obligation in the exercise of the right to keep within the law of the land ; it does not . mean a license to attack, and an attempt to overthrow, ; laws and institutions, and organized society itself. The ' organization is, in the very purpose and object of its existence, a social and national menace, for the suppres- 30 state V. Stockford, 77 Conn. 3i State v. Donaldson, 32 N. J. L. 236, 107 Am. St Rep. 28, 58 Atl. (3 Vr.) 151, 90 Am. Dec. 649. 769. 32 See Wright's Crlm. Conttp.. I. Crltn. Proc— 43 passim. 674 CRIMINAIi PBOCEDUKB. § 537 sion of which there are abundant law-powers in every state in the Union; all that is required is prosecuting officers who will vigorously and conscientiously perform their statutory and sworn duties to the oonununity in which they are elected. CHAPTER XXXrV. INDICTMENT — SPECIFIC CHIMES. Counterfeiting. § 538. In general. § 539. Joinder of defendants. § 540. Form and sufiieiency of the indictment — In general. § 541. Following language of statute. § 542. Intent to defraud. § 543. Description of subject-matter of counterfeiting. § 544. Existence and incorporation of bank. §545. Value. § 546. Time and place. § 547. Current according to law, custom or usage. § 548. Joinder of counts. § 549. Duplicity, repugnancy and uncertainly. § 550. Having counterfeit money in possession. § 551. Passing counterfeit money. § 552. Bartering or selling counterfeit money. § 553. Making or having in possession counterfeiting tools. § 538. In generax,.^ Making counterfeit money, having counterfeit money in possession with intent to pass the same, passing or selling counterfeit money, and having in possession tools adapted to and intended to be used in the manufacture of counterfeit money, are distinct offenses classified under the general head of counterfeit- ing, and treated as branches or phases of that offense. An infamous crime: There are some circuit and district court decisions to the effect that counterfeiting, in any of its braaiches or phases, is not an "infamous crime" - 1 As to forms of indictment for . 2 As to what are infamous counterfeiting in all its branches crimes, see, supra, S 126. or phases, see Forms Nos. 703-741. (675) 676 CRIMINAL PEOCEDUEE. § 539 Avitliin the meaning of the federal constitution,' and for that reason can be prosecuted in the federal courts on information instead of by indictment;* and these cases have misled some editors'* and text writers* into the error of declaring such doctrine to be the law. This precise question having been presented to the federal supreme court in 1884, that court discussed and rejected the doctrine of the circuit and district court cases, specifically- holding that (1) a charge of counterfeiting is a charge with an infamous crime, and (2) the charge can be prose- cuted on presentment by indictment only/ Offense against whom: It has been said that an indict- ment in a state court for the crime of counterfeiting may charge the offense to have been committed against the sovereignty of the people of the state instead of against the sovereignty of the United States.^ ^ 539. Joinder op defendants. The general rules of law, already discussed,^ governing joining defendants in criminal cases, apply in a charge of counterfeiting; and two or more persons may be jointly indicted on a charge of making counterfeit money,^ or on the charge of utter- 3 U. S. Const., Amendment V, IT. S. 429, 29 L. Ed. 93, 5 Sup. Ct. 9 Fed. Stats. Ann., 1st ed., p. 256. Rep. 1190. 4 See United States v. Field, 21 8 Harlan v. People, 1 Doug. Blatchf. 330, 16 Fed. 778; United (Mich.) 207. States V. Coppersmith, 2 Flipp. i See, supra, §§ 351-359. 546, 4 Fed. 198; United States v. Joint indictment and arraign- Baugh, 4 Hughes 501, 1 Fed. 784; ment shown hy record, which United States v. Burgess, 3 McC. then recites that the trial pro- 278, 9 Fed. 896; United States v. ceeded against one of them, court Yates, 6 Fed. 861; United States will presume that an order for V. Petit, 11 Fed. 58; In re Wilson, separate trials was made. — State 18 Fed. 33. v. Hess, 5 Ohio 5, 22 Am. Dec. 767. 5 See 9 Fed. Stats. Ann., 1st ed., 2 State v. Calvin, 1 R. M. Charlt. p. 260. (Ga.) 151; Rosnick v. Com., 2 Va. «11 Cyc. 311. Cas. 356; United States v. Add- 7 Ex parte Wilson, 114 U. S. atte, 6 Blatchf. 76, Fed. Cas. No. 417, 29 L. Ed. 89, 5 Sup. Ct. Rep. 14422; United States v. Burns, 5 935; United States v. Petit, 114 McL. 23, Fed. Cas. No. 14691; §539 COUNTERFEITING. 677 ing^ or passing* counterfeit money, or on the charge of having counterfeit money in possession with intent to pass the same,^ or with making or having in posses- sion instruments or tools adapted to and used for the purpose of counterfeiting,* whether indicted as prin- cipaF or as accessory.® Thus, where there is a joint and several possession of counterfeit bank bills or bank notes, two or more persons may be jointly indicted for having the same in such possession;® and where two persons jointly make counterfeit coins, and utter them in different shops, and apart from each other, intend- ing to share in the proceeds, they may be jointly in- dicted for all utterings and passings -j^" but it seems that where two persons in possession of counterfeit money jointly pass some of the coin in a shop, then separate and individually pass and utter and pass other of the coun- terfeit coins, they can not be jointly indicted for the United States v. White, 25 Fed. 716. s R. V. Skerrit, 2 Car. & P. 427, 12 Eng. C. L. 203; R. v. Jones, 9 Car. & P. 761, 38 Eng. C. L. 325; R. V. M^est, 2 Cox C. C. 237; R. v. Greenwood, 2 Den. C. C. 453, 5 Cox C. C. 521; R. V. Hiirse, 2 Mac. & Rob. 360; R. v. Else, Rus. & Ry. C. C. 142. 4 Stete V. Calvin, 1 R. M. Charlt. (Ga.) 151; State v. Mix, 15 Mo. 156; R. V. Jones, 9 Car. & P. 761, 38 Eng. C. L. 325. 5 People V. Ah Sam, 41 Cal. 645, 649; People v. McDonnell, 80 Cal. 285, 13 Am. St. Rep. 159, 8 Am. Cr. Rep. 147, 22 Pac. 190; Hess v. State, 5 Ohio 5, 22 Am. Dec. 767. Possession of counterfeit bond, not signed and executed, not an oifense. See United States v. Sprague, 11 Biss. 381, 48 Fed. 831; United States v. Williams, 14 Fed. 550, 554. 6 Sutton V. State, 9 Ohio 133. 7 People V. Ah Sam, 41 Cal. 645; Hess V. State, 5 Ohio 5, 22 Am. Dec. 767; Sutton v. State, 9 Ohio 133; State v. Bowman, 6 Vt. 596; United States v. Addatte, 6 Blatchf. 76, Fed. Cas. No. 14422. 8 State V. Calvin, 1 R. M. Charlt. (Ga.) 151; State v. Mix, 15 Mo. 153; Com. v. Bradley, 16 Pa. Sup. Ct. 561; United States v. White, 25 Fed. 716. Joinder of accessory with prin- cipal in same indictment, but in a separate count. Is not prejudicial to him where he has had a sep- arate trial; the indictment will not be quashed and the judgment will not be arrested. — Com. v. Bradley, 16 Pa. Sup. Ct. 561. 9 Hess V. State, 5 Ohio 5, 22 Am. Dec. 767. 10 R. y. Hurse, 2 Mac. & Rob. 360. 678 CEIMINAli PROCEDUBE. § 540 separate Titterings and passings, for the reason that their previous concert in the joint uttering and passing in the first instance will not be extended to the utterings and passings separately.^^ § 540. FOKM AND SUFFICIENCY OF THE INDICTMENT In GENERAL. In an indictment charging counterfeiting in any of its branches or phases, as in an indictment charging any other common-law or statutory offense, certainty and clearness are essential to sufficiency ;^ all the elements^ of the particular branch or phase of counterfeiting sought to be charged must be set forth^ so plainly that the accused mil understand* and the court will judicially know with what particular offense he stands charged^ and the jury will not be misled.* The offense must be charged by direct averment and not by way of recital.'^ Amendments and corrections before returned into court will not vitiate an indictment charging couterfeiting in any of its branches.^ Thus, where the indictment charged accused with uttering and publishing a counterfeit $10 bank note purporting to be issued by the Lafayette Bank of Cincinnati, and before the indictment was returned into court the prosecuting attorney added, in pencil, an "s" to the word "promise" in "promise to pay," the amendment was held to be immaterial.® 11 R. V. West, 2 Cox C. C. 237. 13 Am. Dec. 738 ; United States v. 1 See Com. v. Bailey, 1 Mass. 7, Howell, 64 Fed. 110; Hanger v. 2 Am. Dec 3; Rosen v. United United States, 97 C. C. A. 372, States, 161 U. S. 29, 40 L. Ed. 606, 173 Fed. 54. 16 Sup. Ct. Rep. 480. 5 See, supra, § 193, footnote 1. 2 See, supra, § 194. 6 See authorities in footnote 3. 3 Swain v. People, 5 HI. 178; 7 State v. Newland, 7 Iowa 242, State V. McKenzie, 42 Me. 392; 71 Am. Dec. 444; Com. v. Bailey, Benson v. State, 5 Minn. 19; Scott 1 Mass. 62, 2 Am. Dec. 3; State v. V. Com., 14 Gratt. (Va.) 687. Haider, 2 McC. L. (S. C.) 377, 4 The indictment must be suffi- 13 Am. Dec. 738; State v. Perry, ciently certain to enable the ac- 2 Bail. L. (S. C.) 17. cused to prepare for trial and to 8 As to amendments and inter- protect him from future prosecu- lineations, see, supra, § 326. tion for the same offense. — State 9 May v. State, 14 Ohio 461, 45 V. Haider, 2 McC. L.. (S. C.) 377, Am. Dec. 548. In this case the §540 COUNTERPEITING. 679 "Feloniously" need not be used in the description of the act complained of in any of the branches of connter- feitingji" where not made an element of the offense charged by the statute nnder which the indictment is drawn;" and in those cases in which the word is need- lessly inserted it may be treated as snrplusage.^^ Second and subsequent offenses being made more heavily punishable than first offenses of the character charged, the indictment should specifically allege the former conviction or convictions on charge of a similar offense committed by the accused, where it is sought to secure an imposition of the heavier penalty.^* court say: "With, the letter 's,' in pencil marks, there is variance, If the letter is held to form a part of the indictment, and we are in- clined to think that it does. But if not, the sound and sense are, in substance, still the same. In- deed the grammatical construction of the sentence is the same. Bank is a collective noun ; its verb may be singular or plural; promise, or promises, is all the same in sub- stance, sense, and sound; and the note is sufficiently, in' our opinion, described, to give in evidence to the jury," citing Quigley v. People, 3 111. 302; Stevens v. Stebbins, 4 111. 26. 10 Perdue v. State, 21 Tenn. (2 Humph.) 494; Wilson v. State, 1 Wis. 184. Compare: Dictum in Nicholson V. State, 18 Ala. 529, B4 Am. Dec. 168. 11 Miller v. People, 3 111. 233; Quigley v. People, 3 111. 301. "Did" omitted before the words "feloniously utter and publish" is fatal and judgment will be ar- rested therefor. The omission of the positive averment that he "did" the act is not supplied by the concluding averment "that at the time of the uttering etc. the prisoner well knew, etc." — State V. Haider, 2 McCord (S. C.) 377, 13 Am. Dec. 738. Compare: May v. State, 14 Ohio 461, 45 Am. Dec, 548, "the" omitted before "Lafayette Bank of Cin- cinnati." As to omission of formal and other words, see, supra, § 324. 12 See State v. Judd, 132 Iowa 296, 11 Ann. Cas. 91, 109 N. W. 892. 13 See, as bearing on question of procedure in case of former conviction: People v. Carlton, 57 Cal. 559; Maguire v. State, 47 Md. 485; Plumbly v. Com., 43 Mass. (2 Mete.) 413; Garvey v. Com., 74 Mass. (8 Gray) 382; Larney v. Cleveland, 34 Ohio St. 599; Rauch V. Com., 78 Pa. St. 490; State v. Freeman, 27 Vt. 523; Rand v. Com., 9 Gratt. (Va.) 938; R. v. Page, 9 Car. & P. 756, 38 Eng. C. L. 437; R. v. Jones, 9 Car. & P. 761, 38 Eng. C. L. 441; R. v. Tandy, 2 Leach C. C. 833; R. v. Michael, 2 Leach C. C. 938, Russ. 680 CRIMINAL PROCEDURE. §541 • Conclusion, in those cases in which, the counterfeiting charged was created by statute, must be contrary to the form of the statute/* but it is otherwise where the offense was indictable in the state at common law prior to the passage of the statute ;^'' and where the indictment is in the state court it may charge the offense to have been against the sovereignty of the people of the state.^® — Following language of statute. The gen- §541. - eral rule is that an indictment charging a statutory offense may do so in the words — or substantially in the words, or in words of the same legal import^ — of the statute de- scribing and denouncing the offense ;2 and an indictment is good which follows the form prescribed by code or & Ry. 29; R. v. Turner, 1 Moo. 47; R. V. Booth, Russ. & Ry. 7; R. V. Allen, Russ. & Ry. 513; R. v. Willis, L. R. 1 C. C. 363; R. v. Thomas, L. R. 2 C. C. 141. 14 The general rule regarding statutory offenses, and not pecu- liar to counterfeiting. See People V. Enoch, 13 Wend. (N. T.) 159, 27 Am. Dec. 197; Hess v. State, 5 Ohio 5, 22 Ann. Dec. 767; Com. V. Searle, 2 Binn. (Pa.) 332, 4 Am. Dec. 446; Chipman v. Com., 5 Whart. (Pa.) 427, 34 Am. Dec. 565; Warner v. Com., 1 Pa. St. 154, 44 Am. Dec. 114. Compare: State v. Toadvlne, 1 Brev. (S. C.) 16 (a conclusion con- trary to the statute is insufficient) . "Against the form of the stat- ute" sufficient, although the of- fense charged is inhibited by sev- eral statutes. — State v. Wilhor, 36 Am. Dec. 245. More than one statute, conclu- sion need not be in the plural, "against the statutes." — State v. Dayton, 23 N. J. L. (3 Zabr.) 43, 53 Am. Dec. 270. IB Com. V. Searle, 2 Blnn. (Pa.) 332, 4 Am. Dec 446. Where a statute creates or pro- hibits an offense and inflicts a punishment therefor, the indict- ment must conclude "against the form of the statute." But where the statute only inflicts a pun- ishment on what was an of- fense before, there is no necessity of mentioning the statute. — Com. V. Searle, 2 Binn. (Pa.) 332, 4 Am. Dec. 446. 16 See, supra, § 538, footnote 8. 1 See Buckley v. State, 2 G. Greene (la.) 163; People v. Stew- art, 4 Mich. 658; State v. Bow- man, 6 Vt. 594; United States v. Burns, 5 McL. 23, Fed. Cas. No. 14691. 2 People V. White, 34 Cal. 183; Hopkins v. Com., 44 Mass. (3 Mete.) 460; Hess v. State, 5 Ohio 5, 22 Am. Dec. 767; Long v. State, 10 Tex. App. 186. See, supra, §§ 269, 280. § 542 counterpeithtg. 681 statute.' An indictment charging counterfeiting, in any of its branches, may follow the language of the statute under which drawn in those cases where such statute sets forth clearly and fully all the essential elements of the particular crime sought to be charged ;* but in those cases in which such statute does not clearly and fully, directly and explicitly, set forth all the essential elements of the offense sought to be charged, an indictment in the language of the statute will be insufficient, unless it fur- ther sets forth and properly charges those essential ele- ments.^ Where the language of the statute sufficiently describes the offense, but contains a proviso or excep- tion — e. g., possession without "lawful authority,"* or passing "ignorantly, innocently," and the like — such ■ proviso or exception must be expressly and properly negatived.^ § 542. Intent to depbaud. In the absence of a stat- utory provision or requirement, an indictment charging counterfeiting in any of its branches or phases need not allege the act complained of was done "with intent to de- fraud";^ but in those cases where the statute makes an in- tent to defraud an element of the particular branch or phase of the crime charged, such intent must of course be alleged.^ In the latter case, it is thought, an allegation that the particular act complained of was done "with the 8 Johnson v. State, 35 Ala. 370. and when should be negatived, 4 Hess V. State, 5 Ohio 5, 22 see, supra, §§ 288-291. Am. Dec. 767; State v. Brown, i Hess v. State, 5 Ohio 5, 22 4 R. I. 528, 70 Am. Dec. 168. Am. Dec. 767; United States v. 5 Bell T. State, 10 Ark. 536; Peters, 2 Abb. (U. S.) 494, Fed. United States v. Carll, 105 U. S. Cas. No. 16035; United States v. 611, 26 L. Ed. 1135. Otey, 12 Sawy. 416, 31 Fed. 68. 6 "Without excuse" held suffi- 2 Mattison v. State, 3 Mo. 421; cient pleading under such a Stat- State v. Seran, 28 N. J. L. (4 ute.— R. V. Harney, 11 Cox C. C. Dutch.) 519; Williams v. State, 28 662. Tenn. (9 Humph.) 80; Owen v. T Matthews v. .State, 10 Tenn. State, 37 Tenn. (5 Sneed) 493; (2 Yerg.) 233. State v. O'Neil, 1 Tenn. Cas. 39, As to provisos and exceptions Thomp. Tenn. Cas. 62. 682 CRIMINAL PEOCEDUEB. §543 intent to defraud" will be sufficient;* and that neither the facts to prove the intent, nor the means by which the in- tent was, or was to be, executed, need be set forth.* Person intended to he defrauded: Some particular per- son must be named,® where the charge is of uttering and passing counterfeit money, as the person to whom the counterfeit was, or was intended to be passed — ^i. e., the name of the person who was to be or was defrauded — and where the name of that person is unknown the indictment should so state,® except in those cases where the intent is not made an essential part of the offense by the statute under which the indictment is drawn, in which case the name of the person need not be alleged.'' ■Description of subject-matter of coun- §543. - TEEFEiTiNG. An indictment charging counterfeiting in any of its branches or phases must contain a description of the alleged counterfeit instrument,^ unless the instru- 3 "Falsely" or "falsely and fraud- ulently" making of a counterfeit being alleged, held to imply intent to defraud. See State v. Calvin, 1 R. M. Charlt. (Ga.) 151; United States V. Bums, 5 McL. 23, Fed. Cas. No. 14691; United States v. King, 5 McL. 208, 211, Fed. Cas. No. 15535; United States v. Otey, 12 Sawy. 416, 31 Fed. 68; United States V. Abrams, 18 Fed. 823; United States v. Russell, 22 Fed. 300. 4 United States v. Ulrici, 3 Dill. 532, 535, Fed. Cas. No. 16594; Mc- Carty v. United States, 41 C. C. A. 242, 101 Fed. 113. 5 Buckley v. State, 2 G. Greene (la.) 162; State v. Odel, 3 Brev. (S. C.) 552. Compare: State v. Barrett, 8 Iowa 536. Whether Intent to defraud must be towards person named or an- other quEere. See Wilkinson y. State, 10 Ind. 372; Brown v. Com., 2 Leigh (Va.) 769. e State v. Weller, 20 N. J. L. (Spenc.) 521; State v. Odel, 3 Brev. (S. C.) 552; United States V. Shellmire, Baldw. 370, Fed. Cas. No. 16271; United States v. Be- jando, 1 Woods 294, Fed. Cas. No. 14561. T Hess v. State, 5 Ohio 2, 22 Am. Dec. 767; United States v. Peters, 2 Abb. (U. S.) 494, Fed. Cas. No. 16035; United States v. Otey, 12 Sawy. 416, 31 Fed. 68. 1 See: ARK.— Gabe v. State, 6 Ark. 519. IND.— State v. Atkins, 6 Blackf. 458; Hampton v. State, 8 Ind. 228; Wilkinson v. State, 10 Ind. 372; Armitage v. State, 13 Ind. 442; McGregor v. State, 16 Ind. 9. IOWA — State v. Barrett, 8 Iowa 536. KY.— Clark v. Com., 55 Ky. (16 B. Mon.) 206; Mount v. §543 COUNTERFEITING. 683 ment is destroyed, lost, or in the possession of the ac- cused, in either of which instances the special fact must be averred to excuse Avant of description and setting out of same.^ The description of the instrument must be such as will enable the accused to know with reasonable certainty the specific offense with which he is charged — i. e., the particular thing he is charged with making, hav- ing, uttering, passing, selling, and the like — and suffi- ciently specific and certain that an acquittal or a con- viction will be a bar to another prosecution for the same act and offense.^ Com., 62 Ky. (1 Duv.) 90. MASS.— Com. V. Bailey, 1 Mass. 62, 2 Ami. Dec. 3; Com. v. Stevens, 1 Mass. 203; Com. t. Houghton, 8 Mass. 107; Com. v. Stearns, 51 Mass. (10 Mete.) 256; Com. v. Taylor, 59 Mass. (5 Cush.) 605; Com. v. Clancy, 89 Mass. (7 Allen) 537; Com. V. Hall, 97 Mass. 570. MO.— Hobbs V. State, 9 Mo. 859; Stata. V. Smith, 31 Mo. 120. N. H.— State V. Carr, 5 N. H. 367. N. J.— State V. Robinson, 16 N. J. L. (1 Har.) 510; Stone v. State, 20 N. J. L. (Spenc.) 406. N. C— State V. Dourdon, 13 N. C. (2 Dev. L.) 443. OHIO— McMillen v. State, 5 Ohio 269; Griffin v. State, 14 Ohio St. 61. TENN. — State v. Shelton, 26 Tenn. (7 Humph.) 31; Hooper v. State, 27 Tenn. (8 Humph.) 100. VT.— State v. Wil- kins, 17 Vt. 151. VA.— Com. v. Ervin, 2 Va. Cas. 337; Brown v. Com., 2 Leigh 773; Hendricks v. Com., 5 Leigh 707; Buckland v. Com., 8 Leigh 753. 2 See Armitage v. State, 13 Ind. 442; Com. v. Houghton, 8 Mass. 107; Hooper v. State, 27 Tenn. (8 Humph.) 101; Kirk v. Com., 9 Leigh (Va.) 627. 3 See Mount v. Com., 62 Ky. (I Duv.) 90; Waller v. Com., 97 Ky. 509, 30 S. W. 1023; Com. v. Fields, 5 Ky. Law Rep. 610; Com. V. Stevens, 1 Mass. 203; State v. Keneston, 59 N. H. 36. Insufficient description simply to charge accused feloniously ten- dered in payment to a designated person an "altered bank-bill" of a designated bank, alleging sci- enter and intent to defraud the person named, but containing no other or further description of the subject-matter of the alleged of- fense, omitting to give the date, denomination or number of the bill, or any other description as would distinguish the bill in ques- tion from any other bill of the same bank. — Mount v. Com., 62 JKy. (1 Duv.) 90. Sufficient description: Where the money was described as "cer- tain pieces of false and counter- feit coin, in imitation of the sil- ver coin current within the state by law and usage, to wit, five pieces called 25-cent pieces, and five pieces called dimes," it was sufficient. — State v. Keneston, 59 N. H. 36. — "United States notes" of a designated denomination, held to 684 CEIMINAIi PBOCEDUEB. §543 BanJc-hill or bank-note being the subject-matter of the indictment, it must be set forth in the indictment either by tenor* or in haec verba,® or the omission excused by proper averment f and the indictment should allege it to be "a certain false, forged and counterfeit paper, pur- porting to be a bank-bilF of the United States for," giv- ing the denomination, "and purporting to be signed by," dtfteignating the president and cashier of the particular bank, "as president" and "as cashier," otherwise the indictment will be insufficient.* be a sufficient description of the subject-matter. — United States v. Howell, 64 Fed. 110. 4 Setting forth according to tenor a bank-bill or bank-note, the indictment need not allege its de- struction or loss. — State v. Potts, 9 N. J. L. (4 Halst.) 26, 17 Am. Dec. 449. "Tenor" implies merely setting out the material parts of the con- tract as expressed on the face of the bill, and does not include the immaterial parts. — State v. Dour- don, 13 N. C. (2 Dev. L.) 443. 5 Altered bill should be set out in the indictment in the exact condition it was in when uttered or passed. — Townsend v. People, 4 111. 326. ■ Facsimile or copy should be set forth. — State v. Bonney, 34 Me. 383. "Purport and effect" not suffi- cient. An exact copy must be set out, or want of it excused.^State V. Atkins, 5 Blackf. (Ind.) 458; United States v. Fisher, 4 Hiss. 59, Fed. Cas. No. 15105. Pasting counterfeited Instru- ment In indictment and Its suffi- ciency or insufficiency as a plead- ing. See United States v. Fisher, 4 Hiss. 59, Fed. Cas. No. 15105. estate v. Potts, 9 N. J. L. (4 Halst.) 26, 17 Am. Dec. 449. Where the grand jury have no knowledge or information as to where or in whose possession or under whose control the counter- feited bank notes now are and have been since they were in the possession of the accused is a sufficient excuse why a fuller and better description could not be given. — United States v. Howell, 64 Fed. 110. 7 Describing as a "promissory note" a bank-bill or bank-note al- leged to be counterfeit is sufficient in a charge of passing same. See Brown v. Com., 8 Mass. 64; Com. V. Carey, 19 Mass. (2 Pick.) 47; Com. V. Woods, 76 Mass. (10 Gray) 477; Com. v. Thomas, 76 Mass. (10 Gray) 484; Com. v. Paulus, 77 Mass. (11 Gray) 305 Com. V. Ashton, 125 Mass. 384 Com. V. Gallagher, 126 Mass. 54 Hobbs V. State, 9 Mo. 855; State V. Ward, 6 N. H. 529; Stone v. State, 20 N. J. L. (Spenc.) 407; State V. T witty, 9 N. C. (2 Hawks.) 449; R. v. Palmer, 1 Bos. & P. N. R. 96, 127 Bng. Repr. 395; R. V. Holden, 2 Taunt. 334, 127 Eng. Repr. 1107. 8 Com. V. Clancy, 89 Mass. (7 §543 COUNTERFEITING. 685 Material parts of bank-bill or bank-note are all that are required to be set out;® the number of the bill, words and figures in the margin, and the like, not being an integral part of the bill, need not be set out in the in- dictment.^" Coin, the subject-matter of the charge of counterfeit- ing in any of its branches or phases, the coin may be de- scribed under its proper denomination as a coin showing value of the genuine coin,^^ stating whether the coin coun- Allen) 537; United States v. Howell, 78 V. S. (11 Wall.) 432, 20 L. Ed.- 195. "Signed by A, president, and B, secretary," signifies the bank-bill is genuine. — United States v. Can- tril, 8 U. S. (4 Cr.) 167, 2 L. Ed. 584. 9 Com. V. Bailey, 1 Mass. 62, 2 Am. Dec. 3. 10 See: ARK. — Gabe v. State, 6 Ark. 519. DEL.— State v. Tin- dal, 5 Harr. 488. GA.— Haupt v. State, 108 Ga. 53, 75 Am. St. Rep. 19, 34 S. E. 313 (in forging same). IND. — Hampton v. State, 8 Ind. 336. MASS. — Com. v. Bailey, 1 Mass. 62, 2 Am. Dec. 3; Com. v. Stevens, 1 Mass. 203; Com. v. Taylor, 59 Mass. (5 Cusb.) 605; Com. V. Emigrant Industrial Sav. Bank, 98 Mass. 12, 93 Am. Dec. 126. N. H.— State v. Carr, 5 N. H. 367. N. Y. — Wilson v. People, 5 Park. Cr. Rep. 178. OHIO— Griffin V. State, 14 Ohio St. 55; State v. Ankrim, Tap. 112; State v. Kin- ney, Tap. 167. VT. — State v. Wheeler, 35 Vt. 261. FED.— United States v. Bennett, 17 Blatchf. 357, Fed. Gas. No. 14572. Certificate of registration re- quired by law to be indorsed on the bill. — Wilson v. People, 5 Park. Cr. Rep. (N. Y.) I78. Engraver's name omitted from the bank-note does not vitiate the indictment. — ■ State v. Tindal, 5 H:arr. (Del.) 488. Figures in margin of counter- feit note may be omitted. — State V. Kinney, Tap. (Ohio) 167. Indorsement on counterfeit bill need not be set out. — Hess v. State, 5 Ohio 5, 22 Am. Dec. 767; State V. Tutt, 2 Bail. L. (S. C.) 44, 21 Am. Dec. 508; Buckland v. Com., 8 Leigh (Va.) 732. iVIottoes on margin need not be set out. — United States v. Ben- nett, 17 Blatchf. 357, Fed. Cas. No. 14572. Name of state In upper margin must be included. — Com. v. Wil- son, 68 Mass. (2 Gray) 70. Notices required by law to be put upon the bill. — ^Wilson v. Peo- ple, 5 Park. Cr. Rep. (N. Y.) 178. Number of biil not essential, and may be omitted. — Com. v. Stevens, 1 Mass. 205; Com. v. Emigrant Industrial Sav. Bank, 98 Mass. 12, 93 Am. Dec. 126. Ornamental devices of the notes need not be set out. — 'Hampton v. State, 8 Ind. 336. 11 Gentry v. State, 6 Ga. 604; State V. Williams, 8 Iowa 536; Com. V. Steams, 51 Maas, Q:n law charging the fighting of a duel is insufficient. An indictment under statute must distinctly aver that accused "challenged"^ another to fight a duel with deadly weapons,^ and should set out the exact date* and place^ of the offense charged ; but an allegation that on a given date, at a designated place, the accused gave to a person named a challenge to equipollent with the usual charge in an indictment for an affray or common assault. It does not as- certain with sufficient precision the act for which the party is prosecuted. It is uncertain what degree of evidence would he re- , quired to make it out, and the consequences of a judgment are not ascertained." — Com. v. Lam- bert, supra. "Attempt to provoke a breach of the peace is the gravamen of the charge, and the means used are the acts by which the offense is committed or aggravated. But we have been unable to find a precedent of an indictment for fighting a duel, treating and de- scribing the act of fighting a duel as a distinct offense to which pun- ishment attaches." — ^Ibid. 11 See Com. v. Lambert, 36 Va. (9 Leigh) 603. 12 R. V. Williams, 5 Camp. 506, 11 Rev. Rep. 781; R. v. Phillips, 6 East 464, 102 Eng. Rep. 1365. 13 Com. V. Lambert, 36 Va. (9 Leigh) 603. 1 See, supra, § 579. 2 Statute providing that "any person who shall by word, mes- sage, letter or any other way, chal- lenge another to fight a duel," etc., indictment failing to ex- plicitly aver that accused "chal- lenged" the designated person, held to be insufficient. — State v. Gibbons, 4 N. J. L. (1 South.) 40. As to the challenge, see, infra, §581. 3 See Com. v. Rowan, 33 Ky. (3 Dana) 395; Com. v. Hooper, Thach. Cr. Cas. (Mass.) 400, 405. Challenge to fight with fists not a challenge to fight a duel. — State V. Fritz, 133 N. C. 725, 45 S. E. 957. Challenge in writing and writ- ten acceptance set out, neither of which mentions the weapons to be used, there being no allegation as to weapons, is insufficient under a statute making it unlawful to give or accept a challenge to fight with sword, pistol, or other deadly weapon (Com. v. Rowan, 33 Ky. (3 Dana) 395) ; but if it is averred that the intention was to fight with deadly weapons, indictment will be sufficient. — Com. v. Pope, 33 Ky. (3 Dana) 418. 4 Harris v. State, 58 Ga. 332. B See, Infra, § 582. 734 CRIMINAL PROCEDUEE. § 580 fight in single combat, has been held to be equivalent to an averment of a challenge to fight a dnel, and, being in the language of the statute, is sufficient.® Language of statute making it unlawful to give or accept a challenge to fight a duel with swords, pistols, or other deadly weapons, may be followed in an indict- ment or information charging that offense,'' but it is not necessary that the language of the statute shall be fol- lowed,* where the offense is othermse sufficiently charged. Accepting a challenge^ to fight a duel being charged, the indictment or information need not specifically aver that the parties understood the writing delivered to be, and that it was accepted as, a challenge to fight a duel;'" whether it was in fact such a challenge is a question for the jury.'' Aiding and abetting in a duel being charged, the indict- ment or information must clearly charge that the duel was fought;'^ and where accused is charged with hav- ing acted as a second,'^ the gist of the offense being the consent to so act, the indictment must allege the con- sent was given within the state.'* Carrying a cJiallenge^^ to fight a duel being charged, the indictment or information must allege, and the evi- dence must show, that accused knowingly did the act com- plained of;'" but it is not necessary to allege that the 6 Ivey V. state, 12 Ala. 276. i3 As to form of indictment for T Ivey V. State, 12 Ala. 276; acting as second, see Forms Nos. Com. V. Rowan, 33 Ky. (3 Dana) 852, 853. 395. 14 Harris v. State, 58 Ga. 332. 8 In re Wood, 3 City Hall Rec. 15 As to form of indictment for 139. carrying and delivering a chal- 9 As to form of indictment for lenge, see Forms Nos. 846-848. accepting challenge to fight a duel, 16 United States v. Shackelford, see Form No. 848. 3 Cr. C. C. 178, Fed. Cas. No. 10 Moody V. Com., 61 Ky. (4 16260. Mete.) 1; Heftren v. Com., 61 Ky. Fact letter unsealed and defen- (4 Mete.) 5. dant declared that he thought it 11 See, infra, § 581, footnote 6. was a legal notice, for jury in 12 Com. T. Dudley, 33 Va. (6 deciding whether accused knew it Leigh) 613. was a challenge. — United States § 581 DUELLING. 735 sender of the challenge was a citizen or resident of the state at the time of the carrying of the said challenge.^'' Sending a challenge to fight a duel being charged, the indictment or information need not set out a copy of the challenge, ^^ whether written^^ or verbal,^" but it may do so;^^ and it is thought to be the better practice, at least in cases of doubt, the challenge not explicitly set- ting forth a challenge to fight a duel with deadly weap- ons, especially where the instrument contains a provision as to seconds.^^ Place where duel to he fought, not being a part of the definition of the offense, and not an element therein, need not be averred in the indictment or information, or proved on the trial.^^ § 581. The cHAiiLEUGE. A challenge to fight a duel may consist of a writing or of spoken words, and also of acts accompanying the writing or words ;^ neither the writ- ing^ nor the verbal words* need be set out in the indict- V. Shackelford, 3 Cr. C. C. 178, 20 As to verbal challenge, see. Fed. Cas. No. 16260. Infra, § 581. 17 Under statute providing "any 21 Com. v. Pope, 33 Ky. (3 person resident in or being a citi- Dana) 418; Moody v. Com., 61 Ky. zen of ttie state," etc., because ^^ Mete.) 1. the words above quoted do not „„ „ ™ _, ... ^, apply to the bearer of a challenge ^^ ^efCren y. Com., 61 Ky. (4 but to the sender thereof.— State Mete.) 5. V. Cunningham, 2 Spears (S. C.) 23 Ivey v. State, 12 Ala. 276; 246. See Moody v. Com., 61 Ky. Davis v. State, 87 Ala. 12, 6 So. (4 Mete.) 1. 266; Harris v. State, 58 Ga. 332. 18 State v. Farrier, 8 N. C. (1 1 state v. Perkins, 6 Blackf. Hawks) 487; Brown v. Com., 4 (j^^ ■, 20 ; Com. v. Hart, 29 Ky. Va. (2 Va. Cas.) 516. (g j j Marsh.) 119; State v. 19 Id. Strickland, 2 Nott. & McC. (S. C.) Letter alleged as challenge, the ^^^ letter need not be set out or its ' „. . _, 2 See, supra, § 580. substance given. — State v. Far- rier, 8 N. C. (1 Hawks) 487; 3 State v. Perkins, 6 Blackf. Brown v. Com., 4 Va. (2 Va. Cas.) (Ind.) 20; State v. Strickland, 2 516. Nott. & McC. (S. C.) 181. 736 CRIMINAL PEOCEDUEE. § 582 ment ; that a letter* demanding satisf action"* was intended as a challenge need not be averred. Question whether challenge given to fight a duel by the writing, words, acts and actions complained of, is one for the jury to determine;® and to aid them in arriving at a determination the alleged written or verbal chal- lenge may be shown, and parol evidence introduced.'' § 582. The venue. An indictment or information charging a challenge to fight a duel may be returned into court or filed in the jurisdiction where the challenge was giveh,^ although the place of encounter was to be in an- other state or country.^ The venue must be properly laid^ by averring the state and county where the chal- lenge was given,* whether the encounter is to take place in that state or another.^ Consent to act as second charged, indictment may be returned and prosecution had in the jurisdiction in which the consent was given, the act of consent being the grava- men of the offense." 4 There need be no averment dressed to a person who receives that the letter was intended as a it in such other county, writer challenge and was so understood may he indicted in county where by the parties. — Moody v. Com., mailed; defendant's offense would 61 Ky. (4 Mete.) 1. have been the same though letter 5 Com. V. Pope, 33 Ky. (3 Dana) never delivered. — R. v. Williams, 5 418. Camp. 506, 11 Rev. Rep. 781. elvey v. State, 12 Ala. 276; 2 Ivey v. State, 12 Ala. 2i76; Ward V. Com., 132 Ky. 636, 116 Com. v. Boott, Thach. Cr. Cas. S. W. 786; State v. Strickland, 2 (Mass.) 390; State v. Farrier, 8 Nott. & McC. (S. C.) 181; State N. C. (1 Hawks) 487; State v. V. Herriott, 1 McMuU. (S. C.) 126. Taylor, 3 Brev. L. (S. C.) 243. T Com. V. Hart, 29 Ky. (6 J. J. 3 See Harris v. State, 58 Ga. Marsh.) 119; Com. v. Pope, 33 332; Gordon v. State, 4 Mo. 375; Ky. (3 Dana) 418; Com. v. State v. Warren, 14 Tex. 406. Hooper, Thach. Cr. Cas. (Mass.) . 4 Com. v. Boott, Thach. Cr. Cas. 400; State v. Taylor, 3 Brev. (Mass.) 390. (S. C.) 243; Herriott v. State, 6 Com. v. Boott, Thach. Cr. Cas. 1 McMull. (S. C.) 126. (Mass.) 390, 394, 399, 400; Gor- 1 Mailing letter, intended as a don v. State, 4 Mo. 375; State v. challenge to fight a duel, to be Warren, 14 Tex. 406. delivered in another county, ad- 6 Charging leaving state to give. § 582 DUELLING. 737 Carrying challenge charged, the venue is important; it must be alleged and proved on the trial that the act complained of occurred within the jurisdiction of the court.'' accept or fight a duel, which fails ris v. State, 58 Ga. 332. See, to state county from which ac- also, supra, § 580. cused departed, is insufficient. — 7 Gordon v. State, 4 Mo. 375. State V. Warren, 14 Tex. 406; Har- I. CHm. Proc. — 47 CHAPTER XXXIX. INDICTMENT SPECIPIO CEIME3. Embezzlement or Statutory Larceny. § 583. Form and sufficiency of indictment — In generaL §584. Certainty. § 585. Lan^age of the statute. § 586. Particular averments — Fiduciary relation. § 587. Receipt of property by accused. § 588. Description of property, generally. § 589. Money, and its value. § 590. Corporate or public money. § 591. ■■ Value of property or money. § 592. Ownership of property or money. § 593. Manner of conversion. § 594. Time of conversion. § 595. Place of conversion. § 596. Joinder. § 597. Duplicity and misjoinder. § 598. Continuing embezzlements. § 599. False pretenses and larceny. § 600. Election. § 583. Form and suFPicrENOT of indictment — Is gbn- EEAL.^ The offense of embezzlement, having been unknown to the common law,* being purely a creation of the stat- ute, there is no common law form.^ The indictment or information charging embezzlement must properly set out the special conditions of the statute under which drawn; that is, must embody the statutory characteris- tics of the offense sought to be charged.* Thus, the stat- 1 As to forms of indictment for 3 State v. Davis, supra, embezzlement In all Its phases, 4 People v. Cohen, 8 Cal. 42; see Forms Nos. 857-907. Com. v. Pratt, 132 Mass. 246; 2 State v. Wolff, 34 La. Ann. Coats v. People, 4 Park. Cr. Rep. 1153; State v. Davis, 37 R, I. 373, (N. Y.) 662; reversed on another 92 Atl. 821. point, 22 N. Y. 245. (738) §584 EMBEZZLEMENT. 739 ute specifying money or property "intrusted by the mas- ter or employer to the servant," the indictment or information must specifically allege that the money or property alleged to have been embezzled was intrusted to the accused by his employer or it will be insufficient to charge the offense under the statute." That is to say, in each instance all the circumstances of the particular phase of embezzlement charged which are set out in the definition of the offense must be set out.* §584. ■Certainty. The general rule must be ob- served which requires that every indictment shall contain a plain, brief and certain narrative, charging the offense with such clearness and precision that it may be under- stood,^ alleging all the requisite elements which consti- tute the offense, and the particular phase of the offense sought to be charged, every averment so stated that the accused may know just what he is charged with,^ that it B Ricord V. Central Pao. R. Co., 15 Nev. 167. 6 This is the general rule in all statutory crimes and offenses. See State v. Graliam, 38 Ark. 519 ; Wood V. State, 47 Ark. 488; Sloan V. State, 42 Ind. 570; State v. Casey, 45 Me. 435; Wood v. Peo- ple, 53 N. Y. 511, 1 Cow. Cr. Rep. 554; Phelps v. People, 72 N. Y. 334, 2 Cow. Cr. Rep. 383; State v. Rose, 90 N. C. 712; State v. Shu- ler, 19 S. C. 140. 1 State V. Hall, 45 Mont. 498, 125 Pac. 639. 2 Bulloch V. State, 10 Ga. 47, 54 Am. Dec. 369; State v. Steers, 12 Ida. 174, 85 Pac. 104; State v. Lottrldge, 29 Ida. 53, 155 Pac. 487; Sherban t. Com., 8 Watts (Pa.) 212, 34 Am. Dec. 460; State V. Whitworth, 30 Wash. 47, 70 Pac. 254. See, also, 1 Chit. Crim. Law 172; 2 Hale P. C. 169. Certainty to a common Intent is all that is required, not cer- tainty in every particular. — Sher- ban V. Com., 8 Watts (Pa.) 212, 34 Am. Dec. 460; State v. Clark, 2 Bail. L. (S. C.) 66, 23 Am. Dec. 117. Over-nice distinctions and ex- ceptions not to be encouraged. — Sherban v. Com., 8 Watts (Pa.) 212, 34 Am. Dec. 460. The Indictment is sufficient where it informs the accused of the time, place, circumstances, and conditions of his alleged un- lawful act and that the act is unlawful. He is then sufficiently informed as to what he is required to meet. — State v. Steers, 12 Ida. 174, 85 Pac. 104. When an Information contains a st-atemcnt of the acts in ordi- 740 CRIMINAL PEOCEDUBE. § 584 may be understood by the jury, and with that degree of certainty that the court may know how-to render judg- ment thereon and pronounce sentence according to the right in the case f and must be such that a conviction or acquittal may be pleaded as a bar to another prosecu- tion for the same offense.* The distinguishing feature between larceny and embezzlement, that is, the fiduciary capacity, must be clearly alleged.^ Statute relating to embezzlement consisting of several sections, each describing a separate and different phase of the crime, the indictment must be framed under the appropriate section to fit the facts in the case ; or at least the separate counts in the indictment charging the vari- ous phases to meet the facts as developed by the evidence, must be drawn under appropriate sections of the statute or statutes.® But it is not necessary to designate under which statute, or which section of a statute, the indict- ment or information is drawn f and when there are two or more statutes, or two or more sections of a statute, under which the indictment might be drawn, the trial court will not require the prosecutor to elect under which nary concise language and in such stronger than the proof of the a manner as to enable the ao- facts constituting the crime. — cused to know what was intended, state v. Dix, 33 Wash. 405, 74 and contains no prejudicial de- pg^g 57Q fects in matters of form, and apprises him of what he must meet, and is sufficiently definite to enable him later to plead for- .„„ ^ „„„ . mer conviction, it is sufficient and S*^*^, „^- J^f ' ^f, i^^" f!'' ''""■ not subject to demurrer.-State <=-''■ l^l^C, 901. 54 So. 796. V. Lottridge, 29 Ida. 53, 155 Pac. « State v. Palmer, 32 La. Ann. 437 565; Com. v. Butterick, 100 Mass. sSherban t. Com., 8 Watts 1, 97 Am. Dec. 65; Com. v. Pratt, (Pa.) 212, 34 Am. Dec. 460. 137 Mass. 98; State v. Messenger, 4 Woodward v. State, 103 Ind. 58 N. H. 348; State v. Barter, 58 127, 5 Am. Cr. Rep. 210, 2 N. E. N. H. 604. See Pullman v. State, 321' 78 Ala. 31, 56 Am. Rep. 21. Allegation of facts constitut- 7 State v. Leonard, 56 Wash. 83, Ing the alleged crime need be no 21 Ann. Cas. 69, 105 Pac. 163. SKribs V. People, 81 111. 599, 2 Am. Cr. Rep. 114; Axtell v. State, 173 Ind. 711, 91 N. E. 354; §585 EMBEZZLEMENT. 741 statute the prosecution will be had, even where the pun- ishment provided by the different statutes or sections of a statute are dissimilar in severity,* because it makes no difference to the accused that the penalty is different in the different statutes or sections of the same statute; those which concern him are the acts with the commis- sion of which he is charged.* § 585. Language of the statute. An indictment or information, charging embezzlement, is usually held to comply with the rule laid down in the preceding section where it follows the language of the statute under which drawn,^ or employs words substantially equivalent to or words more extensive than and necessarily including the words used in the statute,^ where the language of the statute sets forth every fact essential to constitute the 8 Id. 9 State V. Isensee, 12 Wash. 254, 40 Pac. 985; State v. Leonard, 56 Wash. 83, 21 Ann. Cas. 69, 105 Pac. 163. 1 ALA. — Lowenthal v. State, 32 Ala. 589. CAL. — People v. Gor- don, 133 Cal. 328, 85 Am. St. Rep. 174, 65 Pac. 746; People v. Fisher, 16 Cal. App. 271, 116 Pac. 688. GA. — Bulloch V. State, 10 Ga. 47, 54 Am. Dec. 369. ILL.— Ker v. People, 110 111. 630, 51 Am. Rep. 706, 4 Am. Cr. Rep. 211; affirmed, 18 Fed. 167, 119 U. S. 436, 30 L. Ed. 421, 7 Sup. Ct. Rep. 225; Meadowcraft v. People, 163 111. 56, 54 Am. St. Rep. 447, 35 L. R. A. 176, 45 N. E. 303; McCracken v. People, 209 111. 218, 70 N. E. 749; People V. Schreiber, 250 111. 349, 95 N. B. 189. IND. — State v. Beach, 147 Ind. 74, 36 L. R. A. 179, 43 N. B. 949, 46 N. B. 145. LA.— State v. Jones, 109 La. 125, 33 So. 108. MICH. — People v. Glazier, 159 Mich. 528, 124 N. W. 582. MISS.— Rlchberger v. State, 90 Miss. 806, 44 So. 772. MO.— State V. Mohr, 68 Mo. 303, 3 Am. Cr. Rep. 64; State v. Larew, 191 Mo. 192, 89 S. W. 1031; State v. Blakemore, 226 Mo. 560, 27L. R.A. (N. S.) 415, 126 S. W. 429. N. J.— Reynolds v. State, 65 N. J. L. 424, 47 Atl. 644. N. M. — State v. Probert, 19 N. M. 13, 140 Pac. 1108. FED. — United States v. Voorhees, 9 Fed. 143. An information in the language of the statute is sufficient on a motion In arrest of judgment with- out alleging the circumstances of the felonious conversion. — People V. Gordon, 133 Cal. 328, 85 Am. St. Rep. 174, 65 Pac. 746. 2 People V. Page, 116 Cal. 386, 48 Pac. 326; People v. Fisher, 16 Cal. App. 271, 116 Pac. 688; Bul- loch V. State, 10 Ga. 47, 54 Am. Dec. 369; Ker v. People, 110 111. 627, 51 Am. Rep. 706, 4 Am. Cr. Rep. 211; affirmed in 18 Fed. 167, and in 119 U. S. 436, 36 L. Ed. 421, 7 Sup. Ct. Rep. 225; McCracken V. People, 209 111. 215, 70 N. E. 742 CRIMINAL PROCEDURE. § 586 offense f and where so drawn can not be held to be insuffi- cient for vagueness, indefiniteness, or uncertainty.* Where there is an allegation that the accused obtained possession of the money, securities or other property, by virtue of his office or employment, it is unnecessary to follow the language in a form prescribed by statute.^ Allegation of means by which the embezzlement and conversion were accomplished is unnecessary, and where alleged may be treated as surplusage.® Thus, under the Illinois statute,^ it is sufficient to allege, generally, an embezzlement,* fraudulent conversion, or taking, with intent to convert to the accused's own use,, the money, funds, securities or other property of his employer to a specified amount or value, without specifying any par- ticulars of such embezzlement.* § 586. PaeticuliAii averments — Fidttciaey relation. In- asmuch as it is indispensable that there should subsist a fiduciary relation between the accused and the person 749; state v. Beach, 147 Ind. 74, 42 L. R. A. (N. S.) 601, 104 Pac. 36 L. R. A. 179, 43 N. E. 949, 46 596, 106 Pac. 1022; appeal dis- N. B. 145; Rlchberger v. State, 90 missed, 227 tJ. S. 150, 57 L. Ed. Miss. 806, 44 So. 772; Chamber- 458, 33 Sup. Ct. Rep. 220. lain V. State, 80 Neb. 812, 115 4 state v. Blaliemore, 226 Mo. N. W. 555; State v. Ross, 55 Ore. 56O, 27 L. R. A. (N. S.) 415, 126 450, 42 L. R. A. (N. S.) 601, 104 s. W. 429. Pac. 596. 106 Pac. 1022; appeal 5 Gleason y. State, 6 Ala. App. dismissed, 227 U. S. 150, 57 L. Ed. ^g gQ g^^ gj^g 458, 33 Sup. Ct. Rep. 220. See State V. Scoggins, 85 Ark. 43, 106 S. W. 969; Field v. United States, 27 App. Gas. (D. C.) 433; appeal dismissed, 205 U. S. 292, 51 L. Ed. '' Crim. Code, § 82. 807, 27 Sup. Ct. Rep. 543; Strob- 8 "Embezzled" funds, charged bar V. State, 55 Fla. 167, 47 So. 6; against accused, Indictment suffl- State V. Jamison, 74 Iowa 602, 38 cient. — United States v. Mason, N. W. 508; State v. Washington, 117 Fed. 558. 41 La. Ann. 778, 6 So. 633; Geb- 9 Ker t. People, 110 111. 627, 51 hardt V. State, (Tex. Cr. Rep.) 27 Am. Rep. 706, 4 Am. Cr. Rep. 211; S. W. 136; Evans v. State, 40 Tex. affirmed, 18 Fed. 167, 119 U. S. Cr. Rep. 54, 48 S. W. 194. 436, 30 L. Ed. 421, 7 Sup. Ct. Rep. 3 State V. Ross, 55 Ore. 450, 225. sjewett T. United States, 41 C. C. A. 88, 100 Fed. 832, 53 L. R.A. 568. §586 EMBEZZLEMENT. 743 whose property is converted before the crime of embez- zlement can come into being, the indictment or informa- tion must distinctly allege the existence of snch a relation, or set out facts which establish, in law, the exist- ence of such a relation, otherwise the instrument will be insufficient to show that the crime charged has been com- mitted;^ but to indicate this fiduciary relation it is suffi- cient to state, in the language of the statute under which the indictment or information is drawn, the position which the accused occupied at the time of the alleged embezzlement to the owner of the money, securities, or other property charged to have been embezzled and con- verted, without setting out the particulars of that rela- tion,^ it being sufficient to indicate it by the term or 1 ARIZ.— Hinds v. Terr., 8 Ariz. 372, 76 Pac. 469. ARK.— Tally v. State, 105 Ark. 28, 150 S. W. 110. CAL. — People v. Gordon, 133 Cal. 328, 85 Am. St. Rep. 174, 65 Pac. 746. GA.— Saunders v. State, 86 Ga. 717, 12 S. E. 1058. ILL.— Kibs V. People, 81 111. 599, 2 Am. Cr. Rep. 114. IND. — Axtell v. State, 173 Ind. 711, 91 N. B. 354. IOWA — State v. Jolinson, 49 Iowa 141. KY. — Com. V. Barney, 115 Ky. 475, 74 S. W. 181; Farmer v. Com., 28 Ky. Law Rep. 1369, 91 S. W. 1129. LA.— State v. Rou- bles, 43 La. Ann. 200, 26 Am. St. Rep. 179, 9 So. 435; State v. Ives, 128 La. 273, Ann. Gas. 1912C, 901, 54 So. 796. MB. — State v. Steven- son, 91 Me. 107, 39 Atl. 471. TEX. — State v. Jolinson, 21 Tex. 775; Griffin v. State, 4 Tex. App. 416; Gilliard v. State, (Tex. Cr. Rep.) 182 S. W. 1136. WYO.— McCann v. United States, 2 Wyo. 274; Wilbur v. Territory, 3 Wyo. 268, 21 Pac. 698. 2 Tally v. State, 105 Ark. 28, 150 S. W. 110; People v. Gordon, 133 Cal. 328, 85 Am. St. Rep. 174, 65 Pac. 746; People v. Goodrich, 142 Cal. 216, 75 Pac. 796; People v. O'Brian, 8 Cal. App. 641, 97 Pac. 679; Keys v. State, 112 Ga. 392, 81 Am. St. Rep. 63, 37 S. E. 762; State V. Nugent, 182 Ind. 200, 106 N. B. 361; Com. v. Hussey, 111 Mass. 432; State v. Chew Muck You, 20 Ore. 215, 25 Pac. 355; Webb V. York, 25 C. C. A. 133, 79 Fed. 616. The indictment need not set out all the facts and circumstances of the bailment. — State v. Chew Muck You, 20 Ore. 215, 25 Pac. 355. Where the indictment charges that the accused was intrusted with money "for the use and bene- fit" of the person who intrusted the money the nature of the trust is sufficiently averred. — Keys v. State, 112 Ga. 392, 81 Am. St. Rep. 63, 37 S. E. 762 (Indictment for larceny after trust). The affidavit charging the de- fendant with embezzlement of money held by him as bailee need not describe the precise charao 744 CRIMDSrAL PEOCEDXJBB. §586 phrase employed in the statute/ such as agent;* agent and bailee;^ agent and collector;* agent and employee;^ agent and servant;^ agent, servant, employee and bailee;® ter of the bailment. — Webb v. York, 25 C. C. A. 133, 79 Fed. 616. Contra: State v. Griffith, 45 Kan. 142, 25 Pac. 616; Com. v. Smart, 72 Mass. (6 Gray) 15. The fiduciary relation is suffi- ciently alleged by an allegation that the property was delivered to the accused on the trust and confidence that he would return it on demand. — Com. t. Hussey, 111 Mass. 432, citing Com. v. But- terick, 100 Mass. 1, 97 Am. Dec. 65. Contra: State v. Schoemperlen, 101 Minn. 8, 111 N. W. 577; Terri- tory V. Maxwell, 2 N. M. 250; Goodwyn v. State, (Tex.) 64 S. W. 251. An allegation that the accused is a bailee of the goods stolen is a conclusion of law and the facts constituting the bailment and the purpose or breach of the bailment must be set forth. — Wilbur v. Ter- ritory, 3 Wyo. 268, 21 Pac. 698. 3 People V. Dorthy, 20 App. Div. (N. Y.) 308, 13 N. Y. Cr. Rep. 173, 46 N. Y. Supp. 970; affirmed, 156 N. Y. 237, 13 N. Y. Cr. Rep. 30, 50 N. B. 800. 4ALA.— WaU V. State, 2 Ala. Or. 157, 56 So. 57. ARK.— Fleener V. State, 58 Ark. 98, 23 S. W. 1; State V. Scoggins, 85 Ark. 43, 106 S. W. 969. CAL. — People v. Tom- linson, 66 Cal. 344, 5 Pac. 509. FLA.— Strobhar v. State, 55 Fla. 167, 47 So. 4. ILL.— People v. O'Farrell, 247 111. 44, 93 N. B. 136. IND.— State v. Nugent, 182 Ind. 200, 106 N. E. 361. KY.— Com. v. Clifford, 96 Ky. 4, 16 Ky. Law Rep. 184, 27 S. W. 811. MO.— State v. Myers, 68 Mo. 266; State v. Dod- son, 72 Mo. 283. N. C— State v. Fain, 106 N. C. 760, 11 S. B. 593. PA. — Com. V. Newcomer, 49 Pa. St. 478; Com. v. Kleckner, 45 Pa. Sup. Ct 179. "Agent" nomen generalissimum, includes clerks and servants, but is by no means restricted to such persons. — People v. Allen, 5 Den. (N. Y.) 76, 79. The nature and purposes of the agency need not be set out. — State V. Myers, 68 Mo. 266. The terms of the agency or con- tract need not be set out — State V. Nugent, 182 Ind. 200, 106 N. E. 361. 5 People V. McLean, 135 Cal. 306, 67 Pac. 770. 6 State V. Mohr, 68 Mo. 303, 3 Am. Cr. Rep. 64; State v. Adams, 108 Mo. 208, 18 S. W. 1000. 7 Woodward v. State, 103 Ind. 127, 5 Am. Cr. Rep. 210, 2 N. B. 321; Mitchell v. State, 11 Ohio Cir. Dec. 446, 21 Ohio Cir. Ct. Rep. 24. 8 People V. Treadwell, 69 Cal. 226, 7 Am. Cr. Rep. 152, 10 Pac. 502; Lewis v. State, 54 Fla. 54, 45 So. 998; State v. Larew, 191 Mo. 192, 89 S. W. 1031; State v. Foumier, 12 Mont. 235, 29 Pac. 824. Where accused was set out as "agent, servant, and bailee," the word bailee may be regarded as surplusage. — State v. Fellows, 98 Minn. 179, 108 N. W. 825. 9 State V. Lillie, 21 Kan. 728. §586 EMBEZZLEMENT. 745 agent or attorney;^** assignee ;^^ attorney ;^^ bailee ;^^ bailee and trustee;^* cashier ;^^ clerk ;^* clerk and ser- vant ;^'^ clerk or agent ;^* commission merchant;^® con- 10 Characterizing tPie accused as agent or attorney under a charge of embezzlement by an agent or servant does not invali- date the information, althougb. the ■word "attorney" does not appear in the statute creating the offense. — Casleton v. State (Mo.), 164 S. W. 492. 11 State V. Nelson, 79 Minn. 373, 82 N. W. 674; State v. Whiteman, 9 Wash. 402, 37 Pac. 659. 12 People v. Tryon, 4 Mich. 665; Casleton v. State, (Mo.) 164 S. W. 492. 13 Storms V. State, 81 Ark. 25, 98 S. W. 678. ARK. — Tally v. State, 105 Ark. 28, 150 S. W. 110. CAL. — People v. Flores, 64 Cal. 426, 1 Pac. 498; People v. Gordon, 133 Cal. 328, 85 Am. St. Rep. 174, 65 Pac 746; People v. Goodrich, 142 Cal. 216, 75 Pac. 796; People V. O'Brian, 8 Cal. App. 641, 97 Pac. 679. DEL.— State v. Abbott, 5 Penn. 330, 63 Atl. 231. KAN.— State v. Combs, 47 Kan. 136, 27 Pac. 818 (such a designation is sufficient to resist a motion in ar- rest of judgment). MONT.— State V. Hall, 45 Mont. 498, 125 Pac. 639. TEX. — Gebhard v. State, (Tex.) 27 S. W. 136. UTAH— People v. Hill, 3 Utah 334, 3 Pac. 75. WYO.— Wilburn v. Territory, 3 Wyo. 268, 21 Pac. 698. Accused need not be named as bailee where indictment or infor- mation sets forth facts which clearly show that accused was constituted a bailee, and received the property embezzled in that ca- pacity. — People V. Johnson, 71 Cal. 384, 12 Pac. 261. Bailment or facts constituting a bailment must be alleged or the indictment will be insufficient. — Wilburn v. State, 3 Wyo. 268, 21 Pac. 698. 14 Peters v. State, 12 Ala. App. 133, 67 So. 723. isRitter V. State, 70 Ark. 472, 69 S. W. 262; Ballew v. State, 11 Okla. Cr. Rep. 598, 149 Pac. 1070. Information against the casliier of a banic for embezzling a bank deposit can not charge that the embezzlement was made from a depositor and also allege that the transaction was had with the ac- cused as an agent of the bank by a customer of the bank transact- ing the ordinary business of a de- positor. — Ballew v. State, 11 Okla. Cr. Rep. 598, 149 Pac. 1070. 16 State V. Lipscomb, 160 Mo. 125, 60 S. W. 1081; Budd v. State, 22 Tenn. (3 Humph.) 483, 39 Am. Dec. 189. "Clerk of an individual ledger" does not properly charge the de- fendant under a statute against embezzlement by a "cashier or any other of the officers, agents, or servants of said corporation." — Budd V. State, 22 Tenn. (3 Humph.) 483, 39 Am. Dec. 189. 17 Davis V. State, 108 Miss. 710, 67 So. 178, 662. 18 State v. Blakemore, 226 Mo. 560, 27 L. R. A. (N. S.) 415, 126 S. W. 429. 19 Bridgers v. State, 8 Tex. App. 145. 746 CRIMINAL PROCEDURE. §586 signee or factor;*" employee;*^ executor;** guardian;** president and director ;** president, director and agent ;** public officer;*® secretary ;*'' secretary, treasurer, and officer f^ servant ;*® surviving partner ;*" and the like. Particulars of fiduciary relation, or its origin,^^ as a general rule, need not be alleged,^* or the precise char- acter of the bailment or employment or trust averred,^* 20 Com. V. Meads, 29 Pa. Sup. Ct. 321, 14 York Leg. Rec. (Pa.) 130. 21 Ritter V. State, 111 Ind. 324, 12 N. E. 501. 22 People V. Gibson, 218 N. Y. 70, 112 N. B. 730. 23 State V. Whitehouse, 95 Me. 179, 49 Atl. 869. 24 Taylor v. Com., 119 Ky. 731, 75 S. W. 244. 25 Jewett V. United States, 41 C. C. A. 88, 53 L. R. A. 568, 100 Fed. 832; United States v. North- way, 120 U. S. 327, 39 L. Ed. 664, 7 Sup. Ct. Rep. 580. 26 People V. Doss, 39 Cal. 428; People V. Mohlman, 82 Cal. 585, 23 Pac. 145; People v. Page, 116 Cal. 386, 48 Pac. 326; State v. Bames, 39 La. Ann. 986, 3 So. 93; State V. Goss, 69 Me. 22, 3 Am. Or. Rep. 66; State v. Nicholson, 67 Md. 1, 8 Atl. 817; State v. Noland, 111 Mo. 473, 19 S. W. 715; Bode v. State, 80 Neb. 74, 113 N. W. 996; State V. Leonard, 56 Wash. 83, 21 Ann. Gas. 69, 105 Pac. 163. Describing a public officer as "superintendent of common schools," is a sufficient descrip- tion of his office. — People v. Doss, 39 Cal. 428. Indictment against public officer need not allege that he was duly elected or appointed or that he was duly qualified as such. — State V. Goss, 69 Me. 22, 3 Am. Cr. Rep. 66. 27 State V. Wise, 186 Mo. 42, 84 S. W. 954. 28 Com. T. Leisenring, 11 Phlla. (Pa.) 392, 32 Leg. Int. 168. 29 Strobhar v. State, 55 Fla. 167, 47 So. 4; Gravatt v. State, 25 Ohio St. 162. 30 State V. Matthews, 129 Ind. 281, 28 N. B. 703. 31 People V. Gordon, 133 Cal. 328, 85 Am. St. Rep. 174, 65 Pac. 746. 32 People V. Johnson, 71 Cal. 384, 12 Pac. 261; People v. Gor. don, 133 Cal. 328, 85 Am. St. Rep. 174, 65 Pac. 746; People v. Mc- Lean, 135 Cal. 306, 67 Pac. 770; People V. Goodrich, 142 Cal. 216, 75 Pac. 796; People v. O'Brian, 8 Cal. App. 641, 97 Pac. 677; Keys V. State, 112 Ga. 392, 81 Am. St. Rep. 63, 37 S. E. 762. Larceny after trust charged, al- leging accused was intrusted with specified lawful money for the use and benefit of a person named, was held to be sufficient on objec- tion that the trust w^s not suffi- ciently described. — Keys v. State, 112 Ga. 392, 81 Am. St. Rep. 63, 37 S. E. 762. 33 State V. Jamison, 74 Iowa 602, 38 N. W. 508; State v. Chew Muck You, 20 Ore. 215, 25 Pac. 355; Webb V. York, 49 U. S. App. 163, 25 C. C. A. 133, 79 Fed. 616. §587 EMBEZZLEMENT. 747 or the duties of tlie agent or servant or the purposes for which employed given.** One line of cases holds that the purpose for which the money or securities or other prop- erty was given or intrusted to the accused need not be pleaded,*^ while under another line of cases the indict- ment or information should not merely state the bail- ment or trust reposed in the accused, but should in addi- tion aver the facts and circumstances which make the case one of embezzlement, and in order to do this must state the purpose for which the accused was intrusted with the money or property.** — Eeceipt op pkopekty by accused. That ac- §587. - cused received the money or other property alleged to have been embezzled, and that it came into his posses- sion by virtue of his fiduciary relation at the time of the appropriation must be distinctly and positively averred in the indictment or information,^ must not be left to be 34 Strobhar v. State, 55 Fla. 167, 47 So. 4; State v. Myers, 68 Mo. 266. 35 De Leon v. Territory, 9 Ariz. 161, 80 Pac. 348; Territory v. Maxwell, 2 N. M. 250; State v. Turner, 10 Wash. 94, 38 Pac. 864; Goodwya v. State, (Tex.) 64 S. W. 251; Woodell v. Arizona, 109 C. C. A. 487, 187 Fed. 739. 36 State V. Griffith, 45 Kan. 142, 25 Pac. 616; Com. v. Smart, 72 Mass. (6 Gray) 15; State v. Gresham, 90 Mo. 163, 2 S. W. 223; State V. Meins, 26 Minn. 191, 2 N. W. 492; State v. Holt, 88 Minn. 171, 92 N. W. 541; State v. Schoemperlin, 101 Minn. 8, 111 N. W. 577; Gaddy v. State, 8 Tex. App. 127; Wilbur v. Territory, 3 Wyo. 268, 21 Pac. 698. California rule was formerly in harmony with this contention (see People v. Cohn, 8 Cal. 42; People V. Peterson, 9 Cal. 313; People V. Poggi, 19 Cal. 600), and is often quoted in support of the contention (as In State v. Griffith, supra), but that rule has been changed by the Penal Code (adopted February 14, 1872) which was designed to work the same change in pleading and practice In criminal actions as that wrought by the Code of Civil Procedure in civil actions, and for that reason it is not necessary, under the Penal Code, to state the facts con- stituting the offense with the same particularity before required. See People V. King, 27 Cal. 507, 87 Am. Dec. 95; People v. Cronin, 34 Cal. 191; Webb v. York, 49 U. S. App. 163, 25 C. C. A. 133, 79 Fed. 616. 1 ALA. — Britton v. State, 77 Ala. 202. ARIZ.— Hinds v. Terr.^ 8 Aviz. 372, 76 Pac. 469; Thomas v. Tcir., Ariz 180, 80 Pac. 320. 748 CniMINAL PEOCEDUEB. §587 surmised or inferred,^ and must be alleged witli the same degree of certainty as is required in a charge of larceny.* It is sufficient to employ the words of the statute in set- ting out the fiduciary relationship of the accused,* but it is also sufficient to use words of substantially the same import.* ARK.— Ritter v. State, 70 Ark. 472, 69 S. W. 262. FLA. — Alden v. State, 18 Pla. 187; Grant v. State, 35 Fla. 581, 17 So. 225. GA.— San- ders V. State, 86 Ga. 717, 12 S. E. 1058. IND. — State v. Hebel, 72 Ind. 361; Ritter v. State, 111 Ind. 324, 12 N. E. 501; State v. Mat- thews, 129 Ind. 281, 28 N. E. 703; Dean v. State, 147 Ind. 215, 46 N. E. 528; State v. Windstanley, 155 Ind. 290, 55 N. B. 71; Axtell V. State, 173 Ind. 711, 91 N. E. 354. IOWA.— State v. Jamison, 74 Iowa 602, 38 N. W. 508. KY.— Com. V. Barney, 24 Ky. L. Rep. 2352, 74 S. W. 181. LA.— State v. Washington, 41 La. Ann. 778, 6 So. 633; State v. Roubles, 43 La. Ann. 200, 26 Am. St. Rep. 179, 9 So. 435. MASS. — Com. V. Merrlfield, 45 Mass. (4 Mete.) 468; Com. v. Wy- man, 49 Mass. (8 Mete.) 247. MICH. — People v. Tryon, 4 Mich. 468 ; People v. INtcKinney, 10 Mich. 54. MINN.— State v. FaiTington, 59 Minn. 147, 28 L. R. A. 395, 60 N. W. 1088; State t. Nelson, 79 Minn. 376, 82 N. W. 674. MO.— State V. Noland, 111 Mo. 473, 19 S. W. 715. NEV.— RlQord v. Cen- tral Pac. R. Co., 15 Nev. 167. N. M.— State v. Aurandt, 15 N. M. 292, 27 L. R. A. (N. S.) 415, 107 Pac. 1064. N. Y. — People v. Allen, 5 Den. 76. N. C. — State v. Keith, 126 N. C. 1114, 36 S. E. 169. TEX.- State v. Johnson, 21 Tex. 775; State v. Longv/ortli, 41 Tex. 162; Gibbs v. State, 41 Tex. 492; Griffin v. State, 4 Tex. App. 412; Baker v. State, 6 Tex. App. 344; Gaddy v. State, 8 Tex. App. 127; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302. FED.— Moore V. United States, 160 U. S. 268, 40 L. Ed. 422, 10 Am. Or. Rep. 283, 16 Sup. Ct. Rep. 294; United States V. Allen, 150 Fed. 152; Shaw V. United States, 91 C. C. A. 208, 165 Fed. 174. The words of description em- ployed must be certain to a cer- tain intent, certainty to a common intent being insu^icient. — United States V. Forrest, 3 Cranch C. C. 56, 25 Fed. Cas. No. 15131. An allegation that the property came into the hands of the ac- cused "as such employee" is not equivalent to the words "by virtue of such employment." — ^Wright v. State, 168 Ind. 643, 81 N. E. 660. 2 See State v. Johnson, 21 Tex. 775; Wise v. State, 41 Tex. 139 State V. Longworth, 41 Tex. 162 Gibbs V. State, 6 Tex. App. 344 Gaddy v. State, 8 Tex. App. 127. 3 State V. Roubles, 43 La. Ann. 200, 26 Am. St. Rep. 179, 9 So. 435. 4 As to pleading In language of statute in charging embezzlement, see, supra, § 585. 5 State V. Sooggins, 85 Ark. 43, 106 S. W. 969; Fields v. United States, 27 App. Cas. (D. C.) 433; writ of error dismissed in 205 U. S. 292, 51 L. Ed. 807, 27 Sup. § 587 EMBEZZLEMENT, 749 Instances: Thus, where a bailee is charged with having converted to his own use the proceeds of property in- trusted to him to be sold, the indictment must allege not only that accused sold the property and converted the proceeds, but also distinctly allege that accused received the money which was the proceeds of the sale;® also, where a state treasurer is charged to have embezzled state funds, he must be charged with having received the money by virtue of his office,'' and that the embezzle- ment was committed by accused while the money was in his official custody and control, not merely that it had been received by him into the state treasury f and where a tax-collector is charged with failure to forward "tax- money in his hands, ' ' it must be averred that the money alleged to have been embezzled was at the time in his hands." Bank officer charged with embezzlement of funds of bank, the rule does not apply, and the indictment need not charge that the money was in his actual custody or possession at the time of the embezzlement.^" Receipt from other than master or employer, by vir- tue of position or employment, being charged, it is suffi- cient to allege that accused while he was employed in a named fiduciary capacity, did, by virtue of employment, receive into his possession designated moneys or other property, in the name and on account of the employer, Ct. Rep. 543; Strobhar v. State, Com. v. Wyman, 49 Mass. (8 55 Fla. 167, 47 So. 6; State v. Jaml- Mete.) 247; State v. Farrington, 59 son, 74 Iowa 602, 38 N. W. 508; Minn. 147, 28 L. R. A. 395, 60 State V. Washington, 41 La. Ann. N. W. 1088. 778, 6 So. 633; Gebhardt v. State, 7 gt^te v. Noland, 111 Mo. 473, (Tex.) 27 S. W. 136; Evans v. jg g -^ 7^5 State, 40 Tex. Or. Rep. 54, 48 S. W. 194. Grant v. State, 35 Fla. 581, 17 So. 225; Ritter v. State, 111 Ind. 9 Britten v. State, 77 Ala. 202. 324, 12 N. E. 501; State v. Jami- 10 See State v. Palmer, 32 La. son, 74 Iowa 602, 38 N. W. 508; Ann. 565; United States v. North- State V. Roubles. 43 La. Ann. 200, way, 120 U. S. 327, 30 L. Ed. 664, 26 Am. St. Rep. 179, 9 So. 435; 7 Sup. Ct. Rep. 580. 8 People T. McKinney, 10 Mich. 54. 750 Cr.IMINAL PEOCEDURB. § 58 7 "witliout setting out tlie name of tlie person from whom the money or other property was received.^^ Receipt of goods out of ordinary course of employ- ment and possession thereof as servant of the owner, in pursuance of special direction of master to receive them, being charged, and a subsequent embezzlement al- leged, the indictment or information will be sufficient, because the goods came into accused's possession by vir- tue'^ of his employment.^* Thus, one employed by a merchant to sweep out and to wait about the store, but who was not a clerk in the store, being authorized to take a lot of shoes with him to a neighboring town and sell them during his visit there, which he did, converting the proceeds to his own use, indictment for embezzlement of the proceeds of the sale of the shoes alleged to have been received by virtue of his employment was held good.^* Goods or other property not received by virtue of a gen- eral or special employment, the case will, of course, be different, and embezzlement of the goods or property, or of the proceeds thereof, can not be predicated.^^ Thus, in a case where accused was furnished with sewing ma- chines, to be sold in various towns by general canvass, he to account to his principal in money, or in purchase- money notes, payable to the principal, but, by a contract 11 state V. Broughton, 71 Miss. Hughes, 1 Moo. 370; R. v. Smith, 90, 13 So. 885; Stete v. Lanier, 89 1 Russ. & R. 516. j^ (3 53^7 14 State v. Costln, 89 N. C. 511, 4 Am. Cr. Rep. 169. 12 "By virtue" of employment, is Employee excavating for mitl- used In statute. Is a phrase of gj^g^ f^j. j^jg employer, upon gov- broad Import, and serves well to ernment land, finding and taking effectuate the object for which possession of gold, did not find employed. — State v. Costln, 89 the gold by virtue of his employ- N. C. 511, 4 Am. Cr. Rep. 169. See ment within the statute (Cal. Civil People V. Dalton, 15 Wend. (N. Y.) Code, §1985), since he was em- go]^ ployed to excavate dirt and not to search for gold, and the employer 13 People V. Dalton, 15 Wend, had no interest in the gold found. (N. Y.) 581; State v. Costin, 89 —Burns v. Clark, 133 Cal. 634, N. C. 511, 4 Am. Cr. Rep. 169; R. v. 85 Am. St. Rep. 233, 66 Pac. 12. §588 EMBEZZLEMEllJT. 751 outside of tlie terms of the agency, accused was author- ized to sell macMnes for live-stock, on condition that he would sell the live-stock and account to his principal for the naoney. Accused tendered his principal horses which he had taken in exchange for sewing machines, which his principal refused to accept; whereupon ac- cused sold the horses and retained the money. On in- dictment for embezzlement it was held that the money was not the property of the principal, and that the law of embezzlement did not apply.^® ■Description of propertt, GENEEAiiT. The §588. - indictment or information should describe the property alleged to have been embezzled with such certainty^ as to identify it f so that it may appear to the court whether the property in question was a subject of embezzlement';* so that the jury may be able to decide whether the prop- erty alleged to have been embezzled is the very same 16 Webb V. state, 8 Tex. App. 310. 1 People v. Cohen, 8 Cal. 42; People V. Peterson, 9 Cal. 213; People V. Burr, 41 How. Pr. (N. Y.) 293, 299. "Description fairly accurate can usually be obtained from the person from whose possession it came to the accused, and in case of a large number of chattels, some one or more, at all events, can be described with sufficient accuracy." — Territory v. Maxwell, 2 N. M. 250. 2 Grant v. State, 35 Fla. 581, 48 Am. St. Rep. 263, 17 So. 225; Bul- loch V. State, 10 Ga. 47, 54 Am. Dec. 369; State v. Bdspn, 10 La. Ann. 229; State v. Muston, 21 Lia. Ann. 442; Com. v. Merrifield, 45 Mass. (4 Mete.) 468; Com. v. Gately, 126 Mass. 52; Moore v. United States, 160 IT. S. 268, 40 L. Ed. 422, 10 Am. Cr. Rep. 283, 16 Sup. Ct. Rep. 294. Failure to describe property is a fatal defect to which objection may be taken at any stage of the proceedings, either before or after verdict. — Grant v. State, 35 Fla. 581, 48 Am. St. Rep. 263, 17 So. 225. See People v. Cox, 40 Cal. 275; Carter v. State, 53 Ga. 326; Com. V. Smart, 73 Mass. (6 Gray) 15; State v. Stimson, 24 N. J. L. (4 Zab.) 9. "Pieces of paper" charged to ^ have been embezzled in connec-J tion with mortgages and notes, the pieces of paper need not be so described as to Identify them. — Com. V. Pratt, 137 Mass. 98. 3 Sanders v. State, 86 Ga. 717, 12 S. E. 1058; State v. Edson, 10 La. Ann. 229; Com. v. Butterick, 100 Mass. 1, 97 Am. Dec. 65. 752 CRIMINAL PEOCEDUKB. § 588 as tliat upon which the indictment is founded;* and so that the accused may be enabled to plead an acquittal or a conviction in bar of a subsequent indictment for the embezzlement of the same property." The standard of certainty in the description required of the property is the accuracy required in an indictment charging lar- ceny," no greater particularity than that being required.'' Where it is impossible or impracticable to give a definite description 'of the property embezzled, the best descrip- tion possible should be set out, and the reason why a bet- ter description is not given should be stated.* Thus, an allegation that the property is in possession of the ac- cused will excuse the lack of a minute description;® and it has been said that where, necessarily, the "knowledge of the character, kind, amount and value . . . rests solely in the accused, there is no reason, beyond that fur- nished by authority, for applying the rule."^" Officer embezzling public property or money, it seems that the rule requiring the indictment to set out a de- scription of the property does not apply, for manifest reasons. No one but the person in possession knows, or can know, the details regarding such property or money.^^ 4 state V. Edson, 10 La. Ann. non, 87 Mass. (5 Allen) 502; Com. 229. V. Butterick, 100 Mass. 1, 97 Am. 5 Id. Dec. 65. eBritton v. State, 77 Ala. 202; Bank-bills need not be more State V. Thompson, 42 Ark. 517; fully described than is necessary People V. Cox, 40 Cal. 275; Grant in an indictment for larceny. — V. State, 35 Fla. 581, 48 Am. St. Bulloch v. State, 10 Ga. 47, 54 Am. Rep. 263, 17 So. 225; Com. v. Brad- Dec. 369. ley, 132 Ky. 512. 116 S. W. 761; 8 Grant v. State, 35 Fla. 581, 48 State V. Edson, 10 La. Ann. 229; Am. St. Rep. 263, 17 So. 225. Com. V. Smart, 72 Mass. (6 Gray) s Leonard v. State, 7 Tex. App. 15 ; Com. v. Butterick, 100 Mass. 1, 417. 97 Am. Dec. 65; Calkins v. State, lo State v. Munch, 22 Minn. 67. 18 Ohio St. 366, 98 Am. Dec. 121; il State v. Carrick, 16 Nev. 120; Rex V. McGregor, 3 Bos. & P. 102. United States v. Bornemann, 36 7 Bulloch V. State, 10 Ga. 47, Fed. 257; Dimmlck v. United B4 Am. Dec. 369; Com. v. Concan- States, 57 0. C. A. 664, 121 Fed. § 588 EMBEZZLEMENT. 753 , Instances of sufficiency of description of property charged to have been embezzled, within the rules above laid down, may be given as follows: "A deed of mort- gage of certain lands situated in" a designated place, executed by a named person to a designated party, and delivered to him by the named grantee, the property of, etc. ;^2 bank-bills by their denomination, bank issuing them, by whom signed and countersigned, and their owner ;^* "bonds of the United States of America for the payment of money, issued by authority of law, and of the aggregate value of one thousand dollars";^* "cer- tain books, letter files, knives, bank shears, slates, and seal- ing wax, to about the value of forty dollars ";^^ "certain United States five-twenty government bonds, which were valuable securities, of the value of," stating the amount;^® check sufficiently described by giving the amount for which drawn and the name of the owner thereof,^'^ need not state in whose favor or on whom the check was drawn,^® or from whom received;^® "fifteen head of beef cattle, worth fifteen dollars per head";^" "fifty pieces of paper of the value of," giving it;^^ "for the purpose of collecting certain money on a lottery ticket" ;^^ "gold metal, of the value of thirty-three thou- 638, distinguishing Moore v. 20 Sanders v. State, 86 Ga. 717, United States, 160 U. S. 268, 40 12 S. E. 1058. L. Ed. 422, 16 Sup. Ct. Rep. 294. 21 Com. v. Parker, 165 Mass. 12 Com. V. Concannon, 87 Mass. 526, 43 N. E. 499. (5 Allen) 502. 22 Woodward v. State, 103 Ind. 13 Bulloch V. State, 10 Ga. 47, 127, 5 Am. Cr. Rep. 210, 2 N. E. 54 Am. Dec. 369. 321. 14 Com. V. Butterick, 100 Mass. Lottery ticket entrusted to ac- 1, 97 Am. Dec. 65 cused to collect thereon need not 15 Mayo V. State, 30 Ala. 32. be described in the indictment or 16 State V. Myers, 68 Mo. 266. information charging embezzle- 17 State V. Farley, 71 W. Va. 100, ment of the money received 42 L. R. A. (N. S.) 498, 76 S. E. thereon, because the charge 134. against the accused is not predi- 18 State V. Burks, 159 Mo. 568, cated upon the lottery ticket, and 60 S. W. 1100. the lottery ticket does not con- 19 Id. stitute the basis of the prosecu- I. Crim. Proc. — 48 754 CRIMINAL PR0C3SDUEE. § 589 sand dollars";^* "railroad tickets" of a named value;** "thirteen thousand and twenty pairs of shoes, of the value of one dollar per pair," the property of, etc. ;*^ "three thousand dollars currency of the United States, of the value of three thousand dollars,"** and the like. Instances of insufficiency of description of property charged to have been embezzled, within the rules above laid down, are: "Certain lot of lumber," and a "certain lot of furniture," and "certain tools";*'' charging ac- cused had possession of a "mule" under a contract of hiring, and "did then and there convert said horse to his own use";** "furs of various kinds, of the value of six hundred and ninety-five dollars";** "moneys, goods, and chattels, of the value of four hundred dollars," without specifying particular articles, or alleging the value to be in lawful currency of the United States;^" "the pro- ceeds" of certain lumber alleged to have been sold by the accused,*^ and the like. § 589. Money, and its value. In those cases in which the property alleged to have been embezzled and tlon. If the felonious act charged . any reference to the lottery ticket. against the accused had Immedi- — ^Woodward v. State, 103 Ind. 127, ate connection with the lottery 5 Am. Cr. Rep. 210, 2 N. E. 321. ticket, or if it were something un- 23 United States v. Jones, 69 lawfully done by him of or con- Fed. 973. cerning such ticket, then the 24 Com. v. Parker, 165 Mass. ticket should be described with 526, 43 N. E. 499. certainty. But where the refer- 25 Com. v. Shaw, 145 Mass. 349, ence to the lottery ticket is made 14 N. E. 159. for the purpose of indicating how 26 Butler v. State, 46 Tex. Cr. the accused, as agent and em- Rep. 287, 81 S. W. 743. ployee of the owner and holder of 27 State v. Edson, 10 La. Ann. the lottery ticket, had access to, 229. control and possession of the 28 Duncan v. State, (Tex.) 70 money which it is charged he em- S. W. 543. bezzled and appropriated to his 29 State v. Silverman, 76 N. H. own use, a specific description of 309, 82 Atl. 536. the lottery ticket is not neces- 30 People v. Cohen, 8 Cal. 42. sary; the Indictment would be 3i Grant v. State, 35 Fla. 581, complete and sufficient without 48 Am. St. Rep. 263, 17 So. 225. § 589 EMBEZZLEMENT. 755 converted to his own use by the accused consists of money, the statutes of the various states of the Union are so variant in their provisions and wording as to make it impossible to frame rules equally applicable alike in all jurisdictions; the pleader must be governed by the provisions and wording of the particular statute under which the prosecution is instituted. In the absence of statutory provisions to the contrary, the description of money charged to have been embezzled must be fully and particularly described, in accordance with the rules al- ready set out,^ and the best description possible should be given by alleging the character and denomination of the money,^ or excuse a lack of a full and definite de- scription by averring that a fuller and more accurate description of the money is to the grand jury unknown, or is to the prosecuting witness and informant unknown, where the prosecution is by information,* it not being sufficient simply to allege the embezzlement of a desig- nated number of dollars.* 1 See, supra, § 588. State r. Combs, 47 Kan. 136, 27 2 Noble V. State, 59 Ala. 73; Pac. 818; Com. v. Sawtelle, 65 State V. Ward, 48 Ark. 36, 2 S. W. Mass. (11 Cusb.) 142. 191; Datson v. State, 51 Ark. 119, Allegation of a specified number 10 S. W. 18; Silvia v. State, 117 of dollars followed by an allega- Ark. 108, 173 S. W. 857; People tion tbat more particular descrip- V. Cox, 40 Cal. 275; Territory t. tion of the money is unknown to Maxwell, 2 N. M. 250. the grand jury is sufficient. — Strob- Best description of the bills or har v. State, 55 Fla. 167, 47 So. 4. coins that circumstances will per- i State v. Thompson, 42 Ark. mit is all that is required. — State 517; State v. Ward, 48 Ark. 36, V. Maxwell, 2 N. M. 250. 3 Am. St. Rep. 213, 3 S. W. 191; California rule has been changed People v. Cohen, 8 Cal. 42; People by the Penal Code. See People v. v. Peterson, 9 Cal. 313; People v. Treadwell,. 69 Cal. 226, 7 Am. Cr. Cox, 40 Cal. 275; State v. Stimson, Rep. 152, 10 Pac. 502. 24 N. J. L. (4 Zab.) 9. 3 Barton v. State, 29 Ark. 68; "Certain money, to a large State V. Thompson, 42 Ark. 517; amount, to wit, to the amount of State V. Ward, 48 Ark. 36, 3 Am. one hundred dollars," held to be St. Rep. 213, 3 S. W. 191; Fleener an insufficient description in State V. State, 58 Ark. 98, 23 S. W. 1; v. Thompson, 42 Ark. 517. 756 CRIMINAL PBOCEDIIEE. §589 Statutes in a majority of the states have been passed liberalizing the former rule and providing what descrip- tion of money charged to have been embezzled shall be deemed to be sufficient. Under these statutes it is gen- erally sufficient to allege the embezzlement and conver- sion of money, without specifying any particular kind of coin number or Mnd of money.^ The following descrip- tions of money have been held to be sufficient under these various statutes: "Bank notes";" "bills of exchange";'' B S e e: ALA. — Lowenthal v.. State, 32 Ala. 589; Noble v. State, 59 Ala. 73; Huffman v. State, 89 Ala. 33, 8 So. 28; Lang v. State, 97 Ala. 41, 12 So. 183; Walker v. State, 117 Ala. 42, 23 So. 149. CAL. — People v. Treadwell, 69 Cal. 226, 5 Am. Cr. Rep. 152, 10 Pac. 502; People v. Mohlman, 82 Cal. 585, 23 Pac. 145; People v. Cobler, 108 Cal. 538, 41 Pac. 401. GA.— Cody V. State, 100 Ga. 105, 28 S. E. 106. IND.— Crawford v. State, 155 Ind. 692, 57 N. B. 931. IOWA — State v. Alverson, 105 Iowa 152, 74 N. W. 770. KY.— Jones V. Com., 76 Ky. (13 Bush) 356. LA.— State v. Palmer, 32 La. Ann. 565; State v. Thompson, 32 La. Ann. 796. MASS. — Com. v. Wyman, 49 Mass. (8 Mete.) 247; Com. V. Bennett, 118 Mass. 443; Com. V. Pratt, 137 Mass. 98. MICH.— People v. Bringard, 39 Mich. 22, point omitted In 33 Am. Rep. 344. MINN.— State v. Kort- gaard, 62 Minn. 7, 64 N. W. 51. MO.— State V. Pratt, 98 Mo. 482, 11 S. W. 977; State v. Pratt, 111 Mo. 473, 19 S. W. 715. MONT.— State V. Hall, 45 Mont. 498, 125 Pac. 639. NEB.— State v. Ifnox, 17 Neb. 683, 24 N. W. 382. N. J.— State V. Barr, 61 N. J. L. 131, 38 Atl. 817. N. Y.— People v. Hearne, 66 Hun 626, 10 N. Y. Cr. Rep. 188, 20 N. Y. Supp. 806. N. C— State v. Fain, 106 N. C. 760, 11 S. E. 593. PA.— Com. v. Leisenring, 11 Phlla. 392, 32 Leg. Int. 168. S. C. — State v. Shirer, 20 S. C. 392. TEX. — State v. Brooks, 42 Tex. 68; Crump v. State, 23 Tex. App. 615, 5 S. W. 182; Lewis y. State, 28 Tex. App. 140, 12 S. W. 736; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Dowdy V. State, 64 S. W. 253; But- ler V. State, 46 Tex. Cr. Rep. 287, 81 S. W. 743. WASH.— State v. Bogardus, 36 Wash. 297, 78 Pac. 942; State v. Leonard, 56 Wash. 83, 21 Ann. Cas. 69, 105 Pac. 163. WYO.— Edelhoff v. State, 5 Wyo. 19, 9 Am. Cr. Rep. 256, 36 Pac. 627. "Money" includes deposits, gold, silver, copper and other coins, bank-bills, government notes or other circulating medium current as money. — Taylor v. State, 29 Tex. App. 466, 16 S. W. 302. Compare: Block v. State, 44 Tex. 620, restricting the term "money" to legal tender coins or to the legal tender treasury notes of the United States. See Lewis v. State, 28 Tex. App. 140. 6 Long V. State, 97 Ala. 41, 12 So. 183; State v. Stimson, 24 N. J. L. (4 Zab.) 9. 7 Long V. State, 97 Ala. 41, 12 So. 183. §589 EMBEZZLEMENT. 751 "certain money, to-wit, the sum of," stating the amount as so many dollars;^ "check";® "current money, a more particular description of which said jurors have not and can not give," is not sufficient, because too indefinite;^" "certain money to the amount and of the value of" a named number of dollars ;^^ "lawful money of the United States ";^^ "paper currency of the United States" ;^^ "money to about the amount of one hundred and fifty dollars";" "ninety dollars of paper money, of the value of ninety doUars, and two dollars in silver money, of the value of two dollars";^' "of the coin of the United States," not necessary where designated as "money," the amount in dollars given ;^* "one hundred dollars in paper currency of the United States";^'' "one twenty- dollar note, being of the United States currency called greenbacks ";^^ "three hundred ninety-five dollar s, law- 8 state V. Palmer, 32 La. Ann. 565; State v. Barr, 61 N. J. L. 131, 38 Atl. 817; People v. Hearne, 66 Hun (N. Y.) 626, 10 N. Y. 188, 20 N. Y. Supp. 806. See, also, footnote 14, this sec- tion. Compare: State v. Thompson, 42 Ark. 517; Bork v. People, 16 Hun (N. Y.) 476; affirmed, 83 N. Y. 609. 9 Long V. State, 97 Ala. 41, 12 So. 183; State v. Griswold, 73 Conn. 95, 46 Atl. 829. Check held not to be money within embezzlement statute in Bartley v. State, 53 Neb. 310, 73 N. W. 744. 10 State V. Denton, 74 Md. 517, 22 Atl. 306. 11 Com. V. • Bennett, 118 Mass. 443; State v. Knox, 17 Neb. 683, 24 N. W. 382. 12 State V. Noland, 111 Mo. 473, 19 S. W. 715. "Lawful money of the United States of America" Is sufficient without specifying any particular coin, note, or bill. — EdelhofE v. State, 5 Wyo. 19, 9 Am. Cr. Rep. 256, 36 Pac. 627. 13 state V. Shonhausen, 26 La. Ann. 421. 14 Huffman v. State, 89 Ala. 33, 8 So. 28. See Lang v. State, 97 Ala. 41, 12 So. 183; State v. Alver- son, 105 Iowa 152, 74 N. W. 770; Com. V. Pratt, 137 Mass. 98. See, also, footnote 8, this sec- tion. 16 Cody V. State, 100 Ga. 105, 28 S. B. 106. See Dowdy v. State, (Tex.) 64 S. W. 253; Butler v. State, 46 Tex. Cr. Rep. 287, 81 S. W. 743. 16 People V. Poggi, 19 Cal. 600; People V. Cobler, 108 Cal. 538, 41 Pac. 401. 17 State V. Carro, 26 La. Ann. 377. 15 Jones V. Com., 76 Ky. (13 Eush) 356. 758 CRIMINAL PEOCEDUBE, §589 ful currency of tlie United States, of denomination and issue to the jurors aforesaid unknown.'"* Lawful money of the United States, or other similar allegation regarding the character of the money alleged to have been embezzled, need not be made under the lib- eralizing statutes above referred to,^" and it seems that it is better that no such allegation be made, because where made the prosecution may be called upon to prove it as a fact.^^ Value of money alleged to have been embezzled must be specifically alleged in the indictment or information under the old rule above alluded to,^^ but this value may be stated approximately;^* under the liberalized rule under statute, above discussed, it is not necessary to plead the money value of the money alleged to have been embezzled,^* unless the punishment is made by statute to depend upon the value, in which case it seems to be nec- 19 state V. Shirer, 20 S. C. 392. 20 People V. Winkler, 9 Cal. 236; People V. Poggi, 19 Cal. 600; Wat- son V. State, 64 Ga. 61; State v. Pratt, 98 Mo. 482, 11 S. W. 977; State V. Noland, 111 Mo. 473, 19 S. W. 715; People v. Hearne, 66 Hun (N. Y.) 626, 10 N. Y. Or. Rep. 188, 20 N. Y. Supp. 806. Compare: People v. Cohen, 8 Cal. 42; Williams v. State, 5 Tex. App. 118 ; Reside v. State, 10 Tex. App. 675. 21 Watson V. State, 64 Ga. 61; Edellioff V. State, 5 Wyo. 19, 9 Am. Cr. Rep. 256, 36 Pac. 627. 22 See State v. Thompson, 42 Ark. 517; People v. Cohen, 8 Cal. 42; People v. Peterson, 9 Cal. 313; People V. Cox, 40 Cal. 275; Bork V. People, 16 Him (N. Y.) 476; affirmed, 83 N. Y. 609; Reside v. State, 10 Tex. App. 675. As to necessity of alleging value, see, also, infra, § 591. 23 Britten v. State, 77 Ala. 202; State V. Alverson, 105 Iowa 152, 84 N. W. 770; State v. Palmer, 32 La. Ann. 565; People v. Donald, 48 Mich. 491, 12 N. W. 669; Gerard V. State, 10 Tex. App. 690. 24 See: GA.— Cody v. State, 100 Ga. 105, 28 S. B. 106. KY.— Com. V. Smith, 26 Ky. L. Rep. 517, 82 S. W. 236. MASS.— Com. v. War- ner, 173 Mass. 541, 54 N. E. 353. MISS. — Richberger v. State, 90 Miss. 806, 44 So. 772. NEB.— Mills V. State, 53 Neb. 263, 73 N. W. 761; Bartley v. State, 53 Neb. 310, 73 N. W. 744; Nelson v. State, 86 Neb. 856, 126 N. W. 518. N. J.— State V. Stimson, 24 N. J. L. (4 Zab.) 9 ; State v. Barr, 61 N. J. L. 131, 38 Atl. 817; Stat© v. Clement, SO N. J. L. 669, 77 Atl. 1067. N. M.— United States v. Fuller, 5 N. M. 80, 20 Pac. 175; Territory v. Hale, 13 N. M. 181, 13 Ann. Cas. 551, 81 Pac. 583. WYO.— Bdelhoff § 590 EMBEZZLEMENT. 759 •essary to allege and prove the money value of the money embezzled.'^* § 590. COKPOEATE OE PUBLIC MONEY. In thOSO cases in which a corporation^ or public officer,^ or a de facto officer,* is charged with the embezzlement of corpo- V. state, 5 Wyo. 19, 9 Am. Cr. Rep. 256, 36 Pao. 627. Allegation of value is necessary ■where the money or property is not legal tender. — State v. Knox^ 17 Neb. 683, 24 N. W. 382. Court judicially knows that bank-bills have a commercial value equal to that imputed on their face. — Gady v. State, 83 Ala. 51, 3 So. 429. Stating amount in dollars suffi- ciently alleges the value of the money. — Hamer v. State, 60 Tex. Cr. Rep. 341, 131 S. W. 813. When applied to money the words "amount" and "value" are synonymous. — ^Richberger v. State, 90 Miss. 806, 44 So. 772. 25 Grant v. State, 35 Fla. 581, 48 Am. St. Rep. 263, 17 So. 225; Brown v. People, 173 111. 34, 50 N. E. 106; Bork v. People, 16 Hun (N. Y.) 476; writ of error, 78 N. Y. 346; Reside v. State, 10 Tex. App. 675. 1 Bank officer charged with em- bezzlement from the bank, indict- ment may describe bank-bills by amount, value, by what bank issued, and by whom signed and countersigned, without specifying the number of the bills or the dates of issue thereof. — Bulloch v. State, 10 Ga. 407, 54 Am. Dec. 369. National banks being necessarily under the jurisdiction of the fed- eral courts, prosecution of officers thereof for embezzlement must be in the federal courts. See State v. TuUer, 34 Conn. 280; Com. v. Ful- ler, 49 Mass. (8 Mete.) 313, 41 Am. Dec. 509; Com. v. Felton, 101 Mass. 204; People v. Fonda, 62 Mich. 401, 29 N. W. 26; Com. v. Ketner, 92 Pa. St. 372, 37 Am. Rep. '692. — Teller of national bank may be convicted in state court for an offense as teller which was in- dictable at common law. — Com. v. Seeberg, 94 Pa. St. 85. 2 "Public officer," in the statute, includes any official who is prop- erly within the definition of that term. See Shelby v. Alcorn, 36 Mo. 273, 72 Am. Dec 169, and notes 179-189. 3 Sea Diggs v. State, 49 Ala. 311; Noble v. State, 59 Ala. 73; State v. Spauldlng, 24 Kan. 1; State V. Goss, 69 Me. 22; Terri- tory v. Hale, 13 N. M. 181, 13 Ann. Cas. 551, 81 Pac. 583; State v. Mclntyre, 25 N. C. (3 Ired. L.) 171; R. V. Barratt, 9 Car. & P. 387, 38 Eng. C. L. 231. Compare: State v. Flint, 62 Mo. 393. Custom existing for years and well known, under which city clerk receives license-money, he is liable for its embezzlement, not- withstanding the fact a city ordi- nance requires the license-money to be paid to the city treasurer. — State V. Spauldlng, 24 Kan. 1. Oath prescribed need not have been taken to fix status as public 760 CRIMINAL PEOCEDUBE. §590 rate or public money or funds coming into liis possession by virtue of his office or position, it is unnecessary to spec- ify in the indictment or information mth certainty the par- ticular kind of money embezzled and converted; that is, to state whether it was gold or silver coin or legal ten- der or bank-notes, or to give the denomination of each coin or note, specifying from whom or the time when the money was received, or to set out the specific money alleged to have been embezzled,* or the particular fund to which it belonged;^ it being sufficient to allege and prove the conversion to his own use, or the appropriation of it to an improper purpose, by the accused, of the money that came into his possession, or was under his control, by virtue of his office and position.^ It is not necessary to allege or prove, in the case of a public offi- cer, that the money was actually paid into the public treasury, because the money became public money as soon officer. — state v. Goss, 69 Me. 22; Foutenberry v. State, 56 Miss. 286. Qualification by bond executed as required by law Is not neces- sary to fix status as a public oflficer in charge of embezzlement of pub- lic funds coming Into hands of accused by virtue of his position and office. — State v. Goss, 69 Me. 22; State v. Meins, 26 Minn. 183. 4 See, supra, § 588, footnote 11, and text going therewith. 5 State V. Smith, 13 Kan. 274; State V. Carrick, 16 Nev. 120. 6 ALA. — Lowenthal v. State, 32 Ala. 589; Britton v. State, 77 Ala. 202. CAL. — People v. Hamilton, 3 Cal. Unrep. 825, 32 Pac. 526. COLO. — ^Adams v. People, 25 Colo. 536, 55 Pac. 808. GA.— Jackson v. State, 76 Ga. 551. IND.— Hollings- worth V. State, 111 Ind. 289, 12 N. E. 490. KAN.— State v. Smith, 13 Kan. 274; State v. Graham, 13 Kan. 299. ME. — State v. Walton, 62 Me. 109. MICH. — People v. McKlnney, 10 Mich. 54. MINN.— State V. Munch, 22 Minn. 67; State V. Ring, 29 Minn. 78. MO. — State V. Flint, 62 Mo. 393; State v. Hays, 78 Mo. 600; State v. Arnold, 2 S. W. 269. NEB.— State v. Knox, 17 Neb. 683, 24 N. W. 382. NEV.— State V. Carrick, 16 Nev. 120. N. J. — State V. Bertholomew, 69 N. J. L. 160, 54 Atl. 231. N. M.— Territory v. Hale, 13 N. M. 181, 13 Ann. Gas. 551, 81 Pac. 583. N. Y.— Bork V. People, 16 Hun 476; affirmed, 83 N. Y. 609. TEX.— Riley v. State, 32 Tex. 763; State V. Brooks, 42 Tex. 62; Malcolm- son V. State, 25 Tex. App. 267, 8 S. W. 469. WASH.— State v. Leon- ard, 56 Wash. 83, 21 Ann. Gas. 69, 105 Pac. 163. FED.- United States V. Bornemann, 36 Fed. 257; Dim- mick V. United States, 57 C. C. A. 664, 121 Fed. 638. § 590 EMBEZZLEMENT. 761 as collected or received by Mm;'' but it must be alleged that the money charged to have been embezzled came into the possession of, or under the control of, the accused by virtue of his position and in his official capacity.* Reason for the rule has been well stated to be because no one but the person in possession and control of such moneys knows, or can know, the details regarding the same;* and also the further fact that it would be wholly impracticable to trace or identify the particular pieces of money, currency or bank-bills, or to determine whether the sum or sums of money embezzled was or were coin or paper, or both ; and because it would be equally imprac- ticable to show that any particular sum embezzled was the same money or funds received from any specified source or person, because, even though the amounts cor- responded, this would by no means establish their iden- tity. And even if the kind of funds or money received in a particular transaction, or from a specified person, whether credited upon the books or not, could be iden- tified as having been received by the accused from that particular source, the fact that it was not found in the public treasury at a subsequent time would not prove that the particular money had been embezzled, because it might have been honestly paid out by the accused to public creditors, and an equal amount embezzled from moneys coming from another source or sources, person or persons." 7 People V. Gray, 66 Cal. 271; pacit/ fixes the status of the People V. McKlnney, 10 Mich. 54; money as public money. — People State V. Walton, 62 Mo. 106; Bork v. Hamilton, 3 Cal. Unrep. 825, 32 V. People, 91 N. Y. 5, 1 N. Y. Cr. Pac. 526. Rep. 379. 9 See authorities in footnote 11, 8 Moore r. United States, 160 supra, § 588. U. S. 275, 40 L. Ed. 425, 16 Sup. lo See People v. McKlnney, 10 Ct. Rep. 297. Mich. 91; State v. Carrick, 16 Nev. Alleging receipt in official ca- 120. 762 CRIMINAL PROCBDUBE. §591 § 591. Value of property oe money. The general rule is that an indictment or information charging em- bezzlement must allege the value of the property^ or money^ embezzled with the same certainty as in charg- ing larceny,^ and with certainty to a common intent ;* but this may be done by charging simply the taking and conversion of a stated number of dollars,^ or by averring 1 ALA. — Noble v. State, 59 Ala. 73. CAL.— People v. Cohen, 8 Cal. 42; People v. Peterson, 9 Cal. 313. FLA.— Grant v. State, 35 Fla. 581, 48 Am. St. Rep. 263, 17 So. 225. GA.— Cody V. Sta?e, 100 Ga. 105, 28 S. E. 106. MICH.— People v. Donald, 48 Mici. 491, 12 N. W. 669. TEX.— Reside v. State, 10 Tex. App. 675. Alleging damage resulting to owner of property by reason of the embezzlement is not sufficient. — People V. Cohen, 8 Cal. 42; Grant V. State, 35 Fla. 581, 48 Am. St. Rep. 263, 17 So. 225. 2 As to alleging value of money, see, supra, § 589. Bank-notes averred to have been embezzled, they must be alleged to have a specified value. — State V. Stimson, 24 N. J. L. (4 Zab.) 9. Certificates of deposit and checks charged to have been em- bezzled, under an Indictment charging embezzlement of money, must state the value, there being no presumption in a legal prose- cution that they were worth the sums called for on their face, or In fact any sum whatever. — Peo- ple V. Donald, 48 Mich. 491, 12 N. W. 669. Coin of the government need not be averred to have a stated value. — State v. Stimson, 24 N. J. L. (4 Zab.) 9. State treasurer charged with embezzling state moneys, the amount embezzled need not be al- leged, nor an excuse entered for not doing so by stating that the amount was unknown to the grand jury, under Minnesota statute. — State V. Munch, 22 Minn. 67. 3 People V. Cohen, 8 Cal. 42; People V. Peterson, 9 Cal. 313; Grant v. State, 35 Fla. 581, 48 Am. St. Rep. 263, 17 So. 225; Reside v. State, 10 Tex. App. 675. As to stating value in larceny, see, infra, title "Larceny," this chapter. 4 "One hundred and eighty dol- lars or other large sum of money," was held to be bad for want of certainty to a common in- tent.— Noble V. State, 59 Ala. 73. 5 GA. — Cody V. State, 100 Ga. 105, 28 S. E. 106. IOWA.— State V. Alverson, 105 Iowa 152, 74 N. W. 770. KY.— Com. v. Smith, 26 Ky. L. Rep. 517, 82 S. W. 236. NEB.— State v. Knox, 17 Neb. 683, 24 N. W. 382; Mills v. State, 53 Neb. 263, 73 N. W. 763; Hartley v. State, 53 Neb. 310, 73 N. W. 744. N. J.— State V. Stimson, 24 N. J. L. (4 Zab.) 9; State v. Barr, 61 N. J. L. 131, 38 Atl. 817. N. M.— United States v. Fuller, 5 N. M. 80, 20 Pac. 175; Territory v. Hale, 13 N. M. isi, 13 Ann. Cas. 551, 81 Pac. 583. TEX.— Reside v. State, 10 Tex. App. 675. Compare: Bork v. People, 16 §591 EMBEZZLEMENT. 763 the value approximately," as " about '"^ or "more than"* a specified amount or number of dollars. Value may also be stated in the aggregate,® in those cases where more than one article, or more than one sum of money, is taken, it not being necessary to allege the value of each separate article, or give the amount of each parcel of money, taken.^" Punishinent not depending on value, however, as where the statute prohibits the taking and conversion abso- lutely, and punishes the same without any regard to value, it is not necessary that any value shotdd be al- leged or proved.^^ Hun (N. Y.) 476; affirmed, 83 N. Y. 609, holding to be Insuffi- cient an indictment alleging that accused embezzled "a large amount of money, to wit, the sum of," naming the amount, because it failed to state the value of the money. "Being then and there the bailee of four hundred thousand dollars," etc., was held bad because the court could not know that lawful money of the United States was meant, the court remarking: "For aught we know, it is the currency of some other state or nation, apd not sufficient in amount to charge the defendant, under our statute, with grand or petit larceny." — People V. Cohen, 8 Cal. 42. See Smith V. SUte, 33 Ind. 150; Mer- win V. People, 26 Mich. 298, 12 Am. Rep. 314. 6 ALA. — Britton v. State, 77 Ala. 202; Walker v. State, 117 Ala. 42, 23 So. 149. CAL. — People v. Sa- lorse, 62 Cal. 139. ILL.— McDan- iels V. People, 118 111. 301, 8 N. E. 687. KAN. — State v. Small, 26 Kan. 209. N. J. — State v. Clement, 80 N. J. L. 669, 77 Atl. 1067. 7 Britton v. State, 77 Ala. 202; R. V. Grove, 1 Moo. C. C. 447; R. V. Carson. 1 Russ. & R. C. C. 303. 8 State V. Ring, 29 Minn. 78; Gerard v. State, 10 Tex. App. 690. 9 Mayo V. State, 30 Ala. 32 ; Peters v. State, 12 Ala. App. 133, 67 So. 723; Com. v. Butterick, 100 Mass. 1, 97 Am. Dec 65; State v. Bickford, 28 N. D. 36, 147 N. W. 407; State v. Moak, 40 Ohio St. 588; State v. Neilon, 43 Ore. 168, 73 Pac. 321. Aggregate sums charged, these sums may be shown to consist of smaller sums. — R. v. Balls, L. R. 1 C. C. 328. 10 State V. Moak, 40 Ohio St. 688. HALA. — Washington v. State, 72 Ala. 272. CAL.— People v. Lee- hey, 2 Cal. Unrep. 56; People v. Salorse, 62 Cal. 139. ILL. — Mo- Daniels V. People, 118 111. 301, 8 N. E. 687. KAN.— State v. Small, 26 Kan. 209. N. Y.— Bork v. Peo- ple, 96 N. Y. 188, 2 N. Y. Cr. Rep. 177, reversing 31 Hun 360, 2 N. Y. Cr. Rep. 56. 764 CEIMINAL PEOCEDUEE. §592 § 592. OWNEESHIP OF PEOPEETY OE MONEY. Escept in those jurisdictions in which the rule is modified by the statute under which the prosecution is had, and in- dictment or information charging embezzlement must allege the ownership of the property or money charged to have been embezzled^ at the time of its delivery to 1 ALA. — ^Washington v. State, 72 Ala. 272. ARK. — Silvie v. State, 117 Ark. 108, 173 S. W. 857. CAL.— People V. Treadwell, 69 Cal. 226, 7 Am. Cr. Rep. 152, 10 Pac. 502. FLA.— Alden v. State, 18 Fla. 187; Grant v. State, 35 Fla. 581, 48 Am. St. Rep. 263, 17 So. 225. ILL.— People V. Brander, 244 111. 26, 135 Am. St. Rep. 301, 18 Ann. Cas. 341, 91 N. B. 59. LA.— State v. Palmer, 32 La. Ann. 565. MASS. — Com. V. Butterick, 100 Mass. 1, 97 Am. Dec. 65. MINN.— State v. Butler, 26 Minn. 90, 1 N. W. 821. MO.— State v. Mohr, 68 Mo. 303, 3 Am. Cr. Rep. 64. N. J.— State v. Lyon, 45 N. J. L. (16 Vr.) 272. N. D.— State v. Collins, 4 N. D. 433, 61 N. W. 467. ORE.— State V. Steams, 28 Ore. 262, 42 Pac. 615. S. C— State v. Shirer, 20 S. C. 392. TEX.— Wise v. State, 41 Tex. 139; State v. Longworth, 41 Tex. 162; Griffin v. State, 4 Tex. App. 390; Leonard v. State, 7 Tex. App. 435. Compare: State v. Flicker, 45 La. Ann. 646, 12 So. 755. Embezzlement by an agent charged, the principal's name must be alleged, although the name of the owner of the property need not be alleged. — Washington v. State, 72 Ala. 272. Express agency charged with the embezzlement of a package of money entrusted to the express company for carriage, an indict- ment alleging the money embez- zled to be the property of the bank consigning it to the express company, but failing to allege that the express company had any property therein, or to allege any fiduciary relation between the bank and the accused, was held ' fatally defective. — Griffin v. State, 4 Tex. App. 390. Insurance agent charged with embezzlement of money received as premiums for insurance which he failed to pay over, indictment or information which fails to al- lege that the money received was the money of the insurance com- pany is insufficient. — State v. Stearns, 28 Ore. 262, 42 Pac. 615. See, also. Griffin v. State, 4 Tex. App. 390. In State v. Stearns, supra, the court say: "It is true the indict- ment alleges that as agent of the States Insurance Company the de- fendant received for premiums for insurance for the company from divers persons certain sums of money, which he failed to pay over or account for according to the nature of his trust; but this is not an allegation that the money which he received was in fact the property of tlie company. For aught that appears in the indict- ment, it may have been under- stood between the defendant and the company that the specific money received by him for insur- §592 EMBEZZLEMENT. 765 the accused,* but an absolute ownership need not be al- leged,* with the same certainty required in an indictment or information charging larceny;* and all ownership in the accused niust be negative.^ The business in which the principal is engaged need not be set out.® No par- ticular words or form of allegation are necessary to de- scribe the ownership of the property, and following the language of the statute is ordinarily sufficient.'^ The terms "of the money of," etc., and "of the property of," etc., are usually employed; but the words "belonging to" have been held to be sufficient,® as have also the words "certain money of A."® The indictment need allege only that the accused was intrusted with the prop- erty or money for the use of another, and that he fraud- ance was not to be turned over to the company, but that he was authorized, and expected, to min- gle and mix it with his own, and it should thus become a matter of account between him and his principal. If such was the case he could not be punished criminally for failing to pay over the balance due the company, however mor- ally wrong it may have been." 2 Title in prosecutor down to the time alleged embezzlement committed need not be averred, it being sufficient if the ownership at the date of delivery to the ac- cused is aptly alleged, with the further averment that the crime was committed during the contin- uance of the trust upon which the property was received and held. — Com. v. Butterick, 100 Mass. 1, 97 Am. Dec. 65. Better practice said to be to spe- cifically allege the ownership and the agency at the time of the com- mission of the offense in separate averments, apart from the infer- ence of the ownership and agency alleged. — Wall v. State, 2 Ala. App. 157, 56 So. 57. 3 People V. Treadwell, 69 Cal. 226, 7 Am. Cr. Rep. 152, 10 Pac. 502; State v. Palmer, 32 La. Ann. 565. 4 Grant v. State, 35 Fla. 581, 48 Am. St. Rep. 263, 17 So. 225; Peo- ple V. Brander, 244 111. 26, 135 Am. St. Rep. 301, 18 Ann. Cas. 341, 91 N. E. 59; Com. v. Bradley, 132 Ky. 512, 116 S. W. 761; State v. Rou- bles, 43 La. Ann. 200, 26 Am. St. Rep. 179, 9 So. 435. 5 State V. Bnsley, 177 Ind. 483, Ann. Cas. 1914D, 1306, 97 N. E. 113. 6 State V. Blackmore, 226 Mo. 560, 27 L. R. A. (N. S.) 415, 126 S. W. 429. 7 State V. Butler, 26 Minn. 90, 1 N. W. 821; State v. Mohr, 68 Mo. 303, 3 Am. Cr. Rep. 64. 8 Strobhar v. State, 55 Fla. 167, 47 So. 4. n Com. V. Bennett, 118 Mass. 443 766 CRIMINAL PEOCEDURE. § 592 ulently appropriated it to another purpose;^" tlie par- ticular use or purpose need not be alleged.^^ Ownership must be laid in the real owner or one hav- ing a special property or interest therein, and as the par- ticular statute under which the prosecution is had re- quires and as the facts in the case warrant. Thus, under a statute defining and punishing embezzlement of the property or money of an individual, corporation, or part- nership, and the like, the indictment or information must allege that the property or money belonged to an indi- vidual, corporation, or partnership, as the case may be.^^ Neither absolute ownership'^ nor exclusive ownership is required, and in the case of property jointly owned the ownership may be laid in any one of the tenants in com- mon.^* Ownership may also be laid in a bailee from whom the property is taken ;^^ in the person in actual posses- sion and entitled thereto at the time of the crime ;^® in the assignor of an account,^^ or of a promissory note,^® 10 DeLeon v. Territory, 9 Ariz. 1 5 Waters v. State, 15 Ga. App. 161, 80 Pac. 348; State v. Duden- 342, 83 S. B. 200. hefer, 122 La. 288, 47 So. 614; Cashier of bank charged with Jeffreys v. State, 51 Tex. Cr. Rep. embezzling a bank deposit, owner- 566, 103 S. W. 886. sliip must be laid in the bank and 11 DeLeon v. Territory, 9 Ariz, not in the depositor. — Ballew v. 161, 80 Pac. 348; Wooddell v. Ter- State, 11 Okla. Cr. Rep. 598, 149 ritory, 109 C. C. A. 487, 187 Fed. Pac. 1070. 739. Guest depositing money with 12 State V. Patterson, 159 Mo. 98, hotel clerk, which latter embez- 59 S. W. 1104. zles, ownership properly laid in 1 3 People V. Treadwell, 69 Cal. proprietor of hotel. — Manovltch v. 226, 7 Am. Cr. Rep. 152, 10 Pac. State, 50 Tex. Cr. Rep. 260, 96 502; State v. Palmer, 32 La. Ann. S. W. 1. 565. 16 Waters v. State, 15 Ga. App. 14 State V. Probert, 19 N. M. 13. 342, 83 S. E. 204. 140 Pac. 1108. IT State v. Cavanaugh, 67 Mo. Ownersliip in wife can not be App. 261. alleged where property jointly is Absolute indorser of prom- owned with her husband, even issory note, not being relieved though she was using It as if her from liability upon it, still has an own. — Ranguth v. People, 186 111. interest in it to see that any agent 93, 57 N. E. 832. of his authorized to collect and §592 EMBEZZLEMENT. 767 when he has been charged with the collection thereof ; or, under statute, in a joint stock association without alleg- ing ownership in the members.^' Association averred owner, the indictment or infor- mation must allege facts which show the right of such association to own property in its own name; that is, must set out whether the company is a corporation, a partnership, and the like, and in case of a corporation must allege that it is incorporated,^" or set out such facts as to show that the company may own and hold property by its own right and in its own name;^^ but it has been said that alleging the property as that of a certain com- pany, "an incorporated company," is sufificient.^^ The charter or act of incorporation need not be alleged, neither need it be stated that the company was incor- porated under the laws of any particular state or foreign power.^* In the case of an unincorporated association or pay over performs his duty; and where the indorsee redelivers to him possession and control of the note for purposes of collecting in- terest upon it for the indorsee's benefit, or to otherwise control the note, this will constitute such "ownership" of the note in the in- dorser as to sustain an indictment for embezzlement against one de- puted by such indorser to collect such note laying ownership in such indorser. — People v. Tread- well, 69 Cal. 226, 7 Am, Cr. Rep. 152, 10 Pac. 502. 19 Kossakowski v. People, 177 111. 563, 53 N. E. 115. 20 People V. O'Brian, 8 Cal. App. 641, 97 Pac. 679; People v. Brander, 244 111. 26, 135 Am. St. Rep. 301, 18 Ann. Gas. 341, 91 N. B. 59; Meredith v. State, (Tex. Cr.) 184 S. W. 204. An averment of ownership by "American Express Company, an association,'' is insufficient. — Peo- ple V. Brander, 244 111. 26, 135 Am. St. Rep. 301, 18 Ann. Cas. 341, 91 N. B. 59. 21 People V. Brander, 224 111. 26, 135 Am. St. Rep. 301, 18 Ann. Cas. 341, 91 N. B. 59; State v. Patter- son, 159 Mo. 98, 59 S. W. 1104; White V. State, 24 Tex. App. 489, 5 Am. St. Rep. 875, 5 S. W. 857. Where the funds were embez- zled from a society there must be an allegation whether it was a cor- poration, partnership, or stock company. — Reese v. State, 55 Tex. Cr. 429, 116 S. W. 1147. 22 Garner v. State, 51 Tex. Cr. Rep. 578, 105 S. W. 187; Reese v. State, 55 Tex. Cr; Rep. 429, 116 S. W. 1147. 23 See Gray v. State, 160 Ala. 107, 49 So. 678; Leonard v. State, 7 Tex. App. 417; Stallings v. State, 29 Tex. App. 220, 15 S. W. 700; Smith V. State, 34 Tex. Cr. Rep. 768 CEIMINAli PROCEDUKE. §592 society, ownersliip may be laid in the trustees, naming them.2* This is the old rule of criminal pleading in charging embezzlement ; but this old rule requiring great particu- larity in the description of persons, under which it is or was necessary to allege the incorporation of the company in order to show right to own property, has been relaxed in many jurisdictions, in which latter jurisdictions it is held that where the name of the company itself imports an association or a corporation, there need be no specific allegation that it is such.^' This is a modern principle in criminal pleading which is thought to be abundantly supported by the decided cases laying down the rule as to the sufficiency of the pleading of ownership of prop- erty in other branches of criminal law.^® Thus, it has 265, 30 S. W. 236; Garner v. State, 51 Tex. Cr. Rep. 578, 105 S. W. 187. 24 R. V. Hall, 1 Moo. C. C. 474; R. V. Bull, 1 Cox C. C. 137; R. V. Woolley, 4 Cox C. C. 255; R. v. Marks, 10 Cox C. C. 367. 25 People V. Mead, 200 N. Y. 15, 140 Am. St. Rep. 616, 25 N. Y. Or. Rep. 179, 92 N. E. 1051, affirming 125 App. Div. (N. Y.) 7, 22 N. Y. Cr. Rep. 225, 109 N. Y. Supp. 163. See Johnson v. State, 65 Ind. 204; Fisher v. State, 40 N. J. L. (11 Vr.) 169. Contra: State v. Ames, 119 Iowa 680, 94 N. W. 231. "The People's Mutual Insurance Association and League" raises a presumption that it is a corpora- tion or association. — People v. Mead, 200 N. Y. 15, 140 Am. St. Rep. 616, 25 N. Y. Cr. Rep. 179, 92 N. E. 1051, affirming 125 App. Div. (N. Y.) 7, 22 N. Y. Cr. Rep. 225, 109 N. Y. Supp. 163. President of corporation charged with embezzlement, indictment or information alleging that accused had the general management of the business and control of the corporation's fimds, and having In his trust, custody and control large sums of money belonging to the corporation, charges the own- ership of the money with sufficient certainty. — Jackson v. State, 76 Ga. 551. 26 See People v. Henry, 77 Cal. 445, 19 Pac. 830 (charging burg- lary of a building of the "San Diego and Coronado Water Com- pany"), practically overruling Peo- ple V. Schwartz, 32 Cal. 160; People V. Goggins, 80 Cal. 229, 22 Pac. 206 (larceny of the prop- erty of "Townsend and Carey") ; People V. McDonnell, 80 Cal. 285, 13 Am. St. Rep. 159, 8 Am. Cr. Rep. 147, 22 Pac. 190 (counterfeit- ing notes of "Bank of England") ; People V. Rogers, 81 Cal. 209, 22 Pac. 592 (burglary of store of "Jones and Harding") ; State v. §592 EMBEZZLEMENT. 769 been said that under a comprehensive statute prohibiting and punishing embezzlement from associations, incorpo- rated or otherwise, and indictment or information laying the ownership of the property in any one of the asso- ciations named in the statute,^'' without averring incor- poration,^*" or mentioning the names of the persons com- posing the association,^* is sufficient. And under statutes prohibiting and punishing embezzlement by an agent, em- ployee, servant, and the like, of property or money com- ing into his possession and control by virtue of his em- ployment or position, without any provision as to the ownership, an indictment or information charging such with embezzlement of property or money which "came into his possession by virtue of his employment," has been held to be sufficient without an allegation as to own- ership.*" Partnership property alleged to have been embezzled, the old and strict rule*^ requires that the name of each Watson, 102 Iowa 650, 72 N. W. 283 (burglary of office of a certain, "railroad company") ; State v. Fo- gerty, 105 Iowa 32, 74 N. W. 754 (larceny of goods from a corpora- tion) ; State v. Golden, 86 Minn. 206, 90 N. W. 299 (burglary of warehouse of a certain company charged, incorporation need not be alleged) ; State v. Simas, 25 Nev. 432, 62 Pac. 242 (burglary of a room occupied by the "Nevada Hardware and Supply Company") ; Noaks V. People, 25 N. Y. 380 (forging with Intent to defraud the "Meriden Cutlery Company") ; State V. Massio, 105 Tenn. 218, 58 S. W. 216 (receiving stolen goods alleged to be the property of a cer- tain railroad). 2T State V. Skinner, 210 Mo. 373, 109 S. W. 38; State v. Knowles, 185 Mo. 141, 83 S. W. 1083. 28 State V. Skinner, 210 Mo. 373, I. Crim. Proo. — 19 109 S. W. 38; State v. Knowles, 185 Mo. 141, 83 S. W. 1083. 29 People V. Mahlman, 82 Cal. 585, 23 Pac. 145; Kossakowski v. People, 177 111. 563, 53 N. E. 115; State V. Skinner, 210 Mo. 373, 109 S. W. 38; State v. Knowles, 185 Mo. 141, 83 S. W. 1083. Treasurer of trade organization charged with embezzling funds belonging to the organization and received by him as treasurer thereof, sufficiently alleges owner- ship of the funds without treating the members as partners, because the statute includes embezzlement by officer of any trade organiza- tion, whether incorporated or not. —State V. Skinner, 210 Mo. 373, 109 S. W. 38. so Willis V. State, 134 Ala. 429, 33 S. E. 226. 31 As to old and strict rule of pleading in embezzlement, see. 770 CRIMINAL PEOCEDUEB. § 593 individual partner be set out in the indictment or infor- mation, with the statement that they are the owners, and where all the partners are not known, it must be stated to be the property of one of the partners, naming him, and of others unknown f^ but under the more liberal rule above referred to,*^ it is sufficient m allege the ownership in the firm by the name under which it is known, without setting out the names of the persons composing the firm.^* Public officer charged with embezzlement, it is not nec- essary to allege the ownership of the funds. Thus, it has been said that an indictment against a county treasurer for the embezzlement of public funds need not specify the particular funds and name the several owners thereof,^® and an indictment charging a prison clerk with embezzlement of moneys belonging to different convicts has been said to be sufficient without setting out the names of the convicts whose money had been deposited and embezzled.^® § 593. Manner of conversion. An indictment or information charging accused with embezzlement need not allege the means or the manner in which the offense supra, § 589, and first three para^ County treasurer charged with graphs in this section. embezzlement, indictment aver- 32 McCowan v. State, 58 Ark. "ng that the money alleged to 19; Hoggv. State, 3 Blackf. (Ind.) li^ve been embezzled came into 326; Com. v. Trimmer, 1 Mass. his hands as treasurer by virtue of oi* T State V. Adams, 108 Mo. 208; 5 Hutchinson v. Com., 82 Pa. St. ^^^^^ ^ Crosswhite, 130 Mo. 359. 472, 2 Am. Cr. Rep. 362. g^ ^^ S^ ^^p 5^^^ 32 g ^ gg^ Compare: State v. Little, 21 Commission merchant charged Kan. 728, holding indictment -with embezzling goods consigned charging accused with embezzle- to him on sale, he can not in the ment "as agent, servant, employee same indictment or information, and bailee," did not charge two or at least in the same count, crimes, one as "agent, servant ^^ charged also with the embez- and employee," and one as element of the proceeds of the "bailee," the word "bailee" being ^^^^ °^ ^"^^ embezzled goods. See , , , State V. Crosswhite, 130 Mo. 359, treated as surplusage. ^^ ^^_ ^^_ R^^.^'ii, 32 S. W. 991^ 6 State V. Hodges, 45 Kan. 389, 8 Messner v. State, (Tex. Cr. 26 Pac. 676; State v. Palmer, 32 Rep.) 182 S. W. 329. 780 CRIMINAL PROCEDUEE. § 598 ment, according to one line of cases,' or, according to another line of cases, the accused may be separately indicted and convicted of the embezzlement of each." Where an agent or servant, authorized to collect money, receives from various persons different sums of money, all of which he retains and converts to his own use at one and the same time, he commits but one embezzle- ment, and must be so charged ;^^ but where such ser- vant or agent converts and embezzles the various sums as they are received, each conversion is a separate em- bezzlement, and must be charged in a separate count.^^ § 598. Continuing embezzlements. In those cases where the circumstances are such that, unless the prose- cution is allowed to aggregate a continued systematic peculation on the part of an agent or employee, it might be impossible to secure a conviction, because the sep- arate and distinct acts of conversion may not be suscep- tible of direct proof, the conversions may be charged in a lump sum without being duplicitous, and proof of such continued taking made.^ Thus, if one commits an em- 9 See Ex parte Ricord, 11 Nev. of larceny and embezzlement is 287, 293; State v. Mallm, 14 Nev. alike. And it is an ancient and 288. ■well-established rule that the tak- 10 Com. V. Butterick, 100 Mass. ing of divers articles at one time 1, 97 Am. Dec. 65. may be treated as constituting a Thus where the accused was in- distinct larceny of each article dieted, in several counts, charging stolen. — 2 Russell on Crimes, 4th the embezzlement of "bonds of Eng. ed., 127; 2 Hale P. C. 246." — the United States of America for Com. v. Butterick, 100 Mass. 1, the payment of money issued by 97 Am. Dec. 65. See, also. Com. authority of law, and of the aggre- v. Sullivan, 104 Mass. 552. gate value of one thousand dol- ii See Ex parte Ricord, 11 Nev. lars," the court say: "It was not 287; Ricord v. Central Pac. R. Co., necessary to show that the sev- 15 Nev. 167. eral bonds were misappropriated 12 Ex parte Ricord, 11 Nev. 287. by separate acts, or at different 1 GA. — Jackson v. State, 76 Ga. times, in order to justify a convic- 551. ILL. — Ker v. People, 110 111. tion on each of the counts in 627, 51 Am. Rep. 706, 4 Am. Cr. which the bonds are separately Rep. 211; affirmed, 18 Fed. 167, described. In this respect the law 119 U. S. 436, 30 L. Ed. 421, 7 Sup. §598 EMBEZZIiBMENT. 781 bezzlement by a series of transactions, from day to day* or month to month,* a charge of embezzlement on a single day will cover and admit evidence of the whole. An information charging that the accused on the fif- teenth day of August, 1900, and on divers dates and days from thence continuously to the tenth day of Janu- ary, 1901, did then and there convert to his own use certain moneys amounting in the aggregate to a named sum, is not defective for duplicity, but charges one con- tinuous offense.* Public officer charged with embesslement of small sums of money received by him in virtue of his office and position, consisting of a series of continuous pecu- lations, an allegation of a particular gross amount is held by the weight of authority to be good and suffi- cient.® Thus, a public officer charged with the embez- Ct. Rep. 225. OHIO — Brown v. State, 18 Ohio St. 496. ORB.— State V. Reinhart, 26 Ore. 466, 38 Pac. 822. WASH. — State v. Dix, 33 Wash. 405, 74 Pac. 570. WYO.— Edelhoffi V. State, 5 Wyo. 19, 9 Am. Cr. Rep. 256, 36 Pac. 627. Regulated by statute In Califor- nia (People V. Treadwell, 69 Cal. 226, 7 Am. Cr. Rep. 152, 10 Pac. 502) ; Louisiana (State v. Thomp- son, 32 La. Ann. 796) ; Massachu- setts (Com. V. Butterick, 100 Mass. 1, 97 Am. Dec. 65; Com. v. Bennett, 118 Mass. 443); England (R. V. Grove, 1 Moo. C. C. 447), and perhaps elsewhere. — Moore v. United States, 160 U. S. 268, 275, 40 L. Ed. 422, 426, 10 Am. Cr. Rep. 283, 16 Sup. Ct. Rep. 294. 2 Brown T. State, 18 Ohio St. 496. 3Edelhoff V. SUte, 5 Wyo. 19, 9 Am. Cr. Rep. 256, 36 Pac. 627. 4 State V. Dix, 33 Wash. 405, 74 Pac. 570; State v. Leonard, 56 Wash. 83, 21 Ann. Cas. 69, 105 Pac. 163. 5 See: COLO. — Adams v. Peo- ple, 25 Colo. 532, 55 Pac. 806. FLA. — Sigsbee v. State, 43 Fla. 524, 30 So. 816. IND.— Hollings- worth V. State, 111 Ind. 289, 12 N. B. 490. KAN.— State v. Smith, 13 Kan. 274; State v. Graham, 13 Kan. 299. MICH.— People v. Mo- Kinney, 10 Mich. 54. MINN.— State V. Munch, 22 Minn. 67; State V. Ring, 29 Minn. 78, 11 N. W. 233. MO.— State t. Flint, 62 Mo. 393; State v. Arnold, 2 S. W. 269. NEB.- State v. Knox, 17 Neh. 683, 24 N. W. 832. NEV.— State V. Carrick, 16 Nev. 120. N. H.— State v. Boody, 53 N. H. 613. N. M.— Territory v. Hale, 13 N. M. 181, 13 Ann. Cas. 551, 81 Pac. 583. N. Y.— Bork v. People, 16 Hun 476; affirmed, 83 N. Y. 609. TEX.— State v. Brooks, 42 Tex. 62. FED.— Moore v. United States, 160 U. S. 268, 40 L. Ed, 422, 10 782 CRIMINAL PROCEDURE. §599 zlement of one hundred and sixty-five dollars paid in for hunters' licenses in sums ranging, under statute, from one dollar to fifty dollars, is not duplicitous in that it charges more than one offense.® — False pketenses and laeceny. Under the §599. - rule permitting the pleader to state the same offense, or offenses of the same species or family of offenses, in several different ways to meet the varying phases of the evidence,^ it has been held that a count charging em- bezzlement may be joined with a count charging obtain- ing money by false pretenses^ or a count charging lar- ceny or grand larceny,* because they are of the same general nature and are triable in the same mode,* and the nature of the punishment is also the same, although with different degrees of severity.^ But there are cases Am. Cr. Rep. 283, 16 Sup. Ct. Rep. 294; United States v. Bomemann, 37 Fed. 257; McBride v. United States, 42 C. C. A. 38, 101 Fed. 821; Dimmick v. United States, 57 C. C. A. 664, 121 Fed. 638; United States V. Mason, 177 Fed. 552. 6 State V. Leonard, 56 Wash. 83, 21 Ann. Cas. 69, 105 Pac. 163. 1 See, supra, §596; Bulloch v. State, 10 Ga. 47, 54 Am. Dec. 369; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544; State v. Noland, 111 Mo. 473, 119 S. W. 715. 2 State V. Lincoln, 49 N. H. 464. s ALA^ — Johnson v. State, 29 Ala. 62, 65 Am. Dec. 383; Mayo v. State, 30 Ala. 32; Wooster v. State, 55 Ala. 217; Butler v. State, 91 Ala. 87, 9 So. 191. ILL.— Mur- phy V. People, 104 111. 528; Ker v. People, 110 111. 646, 51 Am. Rep. 706, 4 Am. Cr. Rep. 211; affirmed, 18 Fed. 167, 119 U.. S. 436, 30 U. Ed. 421, 7 Sup. Ct. Rep. 225. IND. — Griffith v. State, 36 Ind. 406. MISS.— State v. Howell, 106 Miss. 461, 64 So. 159. MO.— State V. Porter, 26 Mo. 201; State v. Owens, 78 Mo. 367; State v. Har- mon, 106 Mo. 635, 18 S. W. 128. N. J. — Stephens v. State, 53 N. J. L. 245, 21 Atl. 1038. ENG.— R. V. Johnson, 3 Maule & S. 550. "Is but the exercise of a pru- dent foresight In anticipation of a possible variance in the evidence from the allegations in the in- dictment" as to the embezzlement chcrge. — Griffith T. State, 36 Ind. 406. Larceny at common iaw and embezzlement under the statute may be charged in one count. — State V. Howell, 106 Miss. 461, 64 So. 159. 4 Stephens v. State, 53 N. J. L. 245, 21 AO. 1038. 5 Johnson v. State, 29 Ala. 62, 65 Am. Dec. 383. See, among other cases: ALA. — Henry v. State, 33 Ala. 389; Quinn v. State, 49 Ala. 353; Tanner v. State, 92 Ala. 1, 9 So. 613; Lowe v. State, 134 Ala. §599 EMBEZZLEMENT. 783 whicli hold that larceny and embezzlement, or statutory larceny, are distinct offenses^ and can not be joined in the same indictment ;'' and even where, by statute, a count for embezzlement may be joined with a count for larceny, a charge of embezzlement can not be joined with other charges of fraudulent appropriation of prop- erty, or with offenses constituting merely misdemeanors 154, 32 So. 273. ARK.— Baker v. State, 4 Ark. 56 1 Orr v. State, 18 Ark. 540. COLO. — Parker v. Peo- ple, 13 Colo. 155, 4 L. R. A. 803, 21 Pac. 1120. GA. — Hoskins v. State, 11 Ga. 92. ILL. — Herman, v. Peo- ple, 131 ni. 594, 9 L. R. A. 182, 22 N. E. 471. IND. — Bngleman v. State, 2 Ind. 91, 52 Am. Dec. 494. KAN. — State v. Blakesley, 43 Kan. 250, 23 Pac. 570. LA. — State v. Fierce, 38 La. Ann. 91; State v. Morgan, 39 La. Ann. 214, 1 So. 456; State v. McDonald, 39 La. Ann. 959, 3 So. 92; State v. Ed- munds, 49 La. Ann. 273, 21 So. 266. ME.— State v. Frazier, 79 Me. 95, 8 Atl. 347. MASS. — Carlton v. Com., 46 Mass. (5 Mete.) 532; Josslyn V. Com., 47 Mass. (6 Mete.) 140; Com. v. Costello, 120 Mass. 358; Com. r. Brown, 121 Mass. 69. MO.— State v. Klrby, 7 Mo. 317. N. Y. — Kane v. People, 8 Wend. 203, affirming 3 Wend. 368; People v. Rynders, 12 Wend. 425. N. C— State v. Haney, 19 N. C. (2 Dev. & B. L.) 390; State V. Williams, 31 N. C. (9 Ired. L.) 140. OHIO — Cline v. State, 43 Ohio St. 332, 1 N. E. 22. PA.— Edge V. Com., 7 Pa. St. 275; Mills V. Com., 13 Pa. St. 631. TENN.— Hampton v. SUte, 27 Tenn. (8 Humph.) 69, 47 Am. Dec. 599. FED. — Pointer v. United States, 151 U. S. 396, 38 L. Ed. 208, 14 Sup. Ct. Rep. 410; United States V. O'Callahan, 8 McL. 596, Fed. Cas. No. 15910; United States v. Peterson, 1 Woodby & M., 305, Fed. Cas. No. 16037. ENG.— R. v. Johnson, 3 Maule & S. 550; R. v. Fussell, 3 Cox C. C. 291. Punishment different, e. g., one by fine and the other by fine and iniprisonment, joinder is error (Norvell v. State, 50 Ala. 174). Thus burglary and petit larceny can not be joined. — Adams v. State, 55 Ala. 143. 6 "Although the party, in the language of the statute, 'shall be deemed to have committed the crime of simple larceny,' yet It Is a larceny of a peculiar character, and must be set forth In its dis- tinctive character." — Fulton v. State, 13 Ark. 168. Trespass is essential to consti- tute larceny, while in embezzle- ment this is not necessary, but a fiduciary relation must be shown. — State V. Finnegean, 127 Iowa 286, 4 Ann. Cas. 628, 103 N. W. 155. "The two offenses of larceny and embezzlement are so far dis- tinct in character that, under an indictment charging merely lar- ceny, evidence of embezzlement is oiot sufficient to authorize convic- tion." — Com. V. Simpson, 50 Mass. (9 Mete.) 138. 7 State V. Finnegean, 127 Iowa 286, 4 Ann. Cas. 628, 103 N. W. 155. 784 CRIMINAL PEOCEDTJBE. §600 or malfeasance in office.* Where two or more counts are joined in one indictment charging offenses of the same class or family, growing out of one and the same trans- action, there can be but one conviction and punishment, even though accused is found guilty on all the counts in the indictment.^ — Election. In the case of a charge of em- §600. - bezzlement, as in the case of the charge of any other crime or offense, where the indictment or information consists of two or more counts which do not charge distinct offenses, but are introduced solely for the purpose of meeting the evidence as it may transpire on the trial, both or all counts being substantially for the same offense, the pros- ecution can not be compelled to elect on which count it will proceed to trial.^ Thus, on an indictment charging embezzlement and larceny of money, funds, and securi- 8 Com. V. Bradley, 132 Ky. 512, 116 S. W. 761. 9 See Mayo v. State, 30 Ala. 32; Wooster v. State, 53 Ala. 217; But- ler V. State, 91 Ala. 87, 9 So. 191; State V. Lincoln, 49 N. H. 464. 1 State V. Bell, 27 Md. 675, 92 Am. Dec. 658. See, also: ARK. — Baker v. State, 4 Ark. 56. IND.— McGregor v. State, 16 Ind. 9; Grif- fith V. State, 36 Ind. 406; Mershon V. State, 51 Ind. 14. IOWA— State V. House, 55 Iowa 466, 8 N. W. 307. LA. — State v. Cazeau, 8 La. Ann. 109. MB.— State v. Flye, 26 Me. 312. MISS.— Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544; State V. Pitts, 58 Miss. 556. MO.— State V. Porter, 26 Mo. 201; State V. Turner, 63 Mo. 436. N. H.— State V. Canterbury, 28 N. H. 195; State V. Lincoln, 49 N. H. 464. N. Y.— People v. White, 55 Barb. 606; affirmed, 32 N. Y. 465; Tay- lor V. People, 12 Hun 212; La Beau V. People, 33 How. Pr. 66, 6 Park. Cr. Rep. 371; affirmed, 34 N. Y. 223. N. C. — State v. Morrison, 85 N. C. 561. S. C. — State v. Scott, 15 S. C. 434. TEX.— Gonzales v. State, 12 Tex. App. 657. VA.— Dowdy V. Com., 50 Va. (9 Gratt.) 727, 60 Am. Dec. 314. EnSTG.- R. v. Trueman, 8 Car. & P. 727, 34 Eng. C. L. 986; Young v. R., 3 T..R. 98, 100 Eng. Repr. 475; R. v. Davis, 3 Fost. & F. 19; R, v. Pussell, 3 Cox C. C. 291. Joinder tending to embarrass accused in his defense, court. In exercise of its discretion, may re- quire prosecution to elect, is the general rule applicable in the trial of all crimes. See Engleman V. State, 2 Ind. 91, 52 Am. Dec. 494; State v. Abraham, 6 Iowa 117, 71 Am. Dec. 399; State v. Mc- pherson, 9 Iowa 53; State v. Ca- zeau, 8 La. Ann. 109; State v. Por- ter, 26 Mo. 206; Kane v. People, 8 Wend. (N. Y.) 203, affirming 3 Wend. 363; State v. Lincoln, 49 §600 EMBEZZIjEMENT. 785 ties, the court will not compel the prosecution to elect upon which alleged act of embezzlement or larceny a conviction will be asked.* In those states in which lar- ceny and embezzlement are regarded as distinct crimes,^ in those cases in which they are joined in the indictment an election will be required.* While it is duplicitous to charge in the same indictment the embezzlement of per- sonal property and also the embezzlement of the pro- ceeds thereof,® and an election may be required,** yet the court may submit both counts to the jury.'' N. H. 464; Com. v. Gillespie, 7 Serg. & R. (Pa.) 469, 10 Am. DBc. 475. 2 Ker V. People, 110 ni. 627, 51 Am. Rep. 706, 4 Am. Cr. Rep. 211; affirmed, 18 Fed. 167, 119 U. S. 436, 30 L. Ed. 421, 7 Sup. Ct. Rep. 225. The Illinois supreme court say, in the above case, that "it is diffi- cult, if at all possible, to prove with certainty when, or how the embezzlement was effected. It is, of course, done with a view to avoid detection, and the confiden- tial relations existing ward off suspicion. Embezzlement may, and most often does, consist of many acts done in a series of years, and the fact at last dis- closed that the employer's money and funds are embezzled is the crime against which the statute Is leveled. In such cases, should the prosecution be compelled to elect, it would claim a conviction for only one of the many acts of the series that constitute the corpus delicti, it would be doubtful if a conviction could be had, under sections 75 and 76 of the Criminal Code, against a clerk of a bank or other corporation, or a partner- ship, although the accused might be conceded to be guilty of em- I. Crim. Proc. — 50 bezzling large sums of money in the aggregate. It might be differ- ent, under section 74 of the Crimi- nal Code, where distinct sums- of money or articles of personal property are or may be delivered to the accused on different occa- sions wide apart. Such distinct acts might very readily be sus- ceptible of direct proof, for the act of delivery implies actual knowl- edge in some one who could be a witness. But no such opportunity Is afforded to make direct proof as to acts done, under sections 75 and 76, defining embezzlement. The body of the crime consists of many acts done by virtue of the confidential relation existing be- tween the employer and the em- ployee, with funds, moneys, or securities over which the servant is given care or custody, in whole or in part, by virtue of his em- ployment." 3 See, supra, § 599, footnote 3. i State V. Finnegean, 127 Iowa 286, 4 Ann. Cas. 628, 103 N. W. 155. See, also, State v. Norris, 122 Iowa 154, 97 N. W. 999. 5 See, supra, § 597, footnote 6. 6 Messner v. State, (Tex. Cr. Rep.) 182 S. W. 329. 7 Id. CHAPTER XL. INDIOTMENT SPECIFIC CRIMES. Embracery. § 601. Form and sufficiency of indictment. § 602. Joinder of counts and consolidation of causes. § 601. Form and sufficiency of indictment.^ An in- dictment or information charging accused with the crime of embracery is sufficient if it follows the language of the statute under which the prosecution is had,^ where the statute sufficiently specifies the nature and contains all the elements of the offense sought to be charged;* but where the statute does not set out all the elements necessary to constitute the offense, an indictment or in- formation following the language of the statute merely will not be sufficient,* because the offense sought to be charged must be set out with reasonable definiteness and certainty.^ The acts constituting the offense should be alleged,® and the words used by the accused to the juror may be set out without any innuendo.'' The name of the juror should be given, inasmuch as the essential element of the offense is the attempt to corrupt a juror, and that he was a juror regularly drawn or duly impaneled in a 1 As to form of indictment — Essential elements not charged, Where accused party to suit See and the defect appearing upon the Forms Nos. 908, 909. face of the indictment or informa- — Where accused not a party to tion, the question is open to de- the suit. See Forms Nos. 910-912. termination for the first time on 2 State V. Williams, 136 Mo. 293, appeal. — State v. Nunley, 185 Mo. 38 S. W. 75. 102, 83 S. W. 1074. 3 State V. McCrystal, 43 La. Ann. 5 State v. Dankwardt, 107 Iowa 907, 9 So. 922; State v. Claudi, 43 704, 77 N. W. 495. La. Ann. 914, 9 So. 925. 6 State v. Brown, 95 N. C. 685. 4 State V. Dankwardt, 107 Iowa. 7 State v. Dankwardt, 107 Iowa 704, 77 N. W. 495. 704, 77 N. W. 495. r7SG1 § 601 EMBRACERY. 787 named cause can be known by allegation of his name only;^ there need be no allegation that the person named as a juror had been summoned® or impaneled,^" or that the panel, upon which the juror approached had been summoned, was summoned by order of the court,^^ or any direct averment that the accused knew that the person named as a juror was in fact a juror ;^^ but that the term of court, at which the offense is alleged to have been com- mitted, was duly organized must be alleged and proved on the trial.^* Attempt to commit embracery : Person accused must be charged with a direct personal attempt to influence a juror ; to charge that he attempted to procure others to attempt to influence the juror named fails to state facts showing that the accused attempted to influence the juror named or any of the jurors in the panel of the designated cause.^* There is no- such crime specifically recognized, either at common law or under statute, as that of an attempt to commit embracery. The crime itself consists 8 state V. Nunley, 185 Mo. 102, degree of certainty as to enable 83 S. W. 1074. a person of common understand- 9 Grand juror's name drawn ing to know what Is Intended, an from box and published, but he Indictment charging the defendant not yet summoned when the at- with unlawfully and feloniously at- tempt to Influence him was made, tempting to Improperly influence held to be immaterial in People a juror by requesting him to see, V. Glen, 64 App. Div. (N. Y.) 167, that right was done, that it would \ 15 N. Y. Cr. Rep. 547, 71 N. Y. not be to his loss, is not insuffl- Supp. 893; affirmed, 173 N. Y. 395, cient even though the words are 17 N. Y. Cr. Rep. 225, 68 N. B. in themselves innocent. The alle- 112. gation that the words were used 10 Caruthers v. State, 74 Ala. tor an improper purpose negatives ^Qg that they were innocent and used 11 State V. Williams, 136 Mo. '^ith a proper intent. — State v. 293 38 S W. 75. Dankwardt, 107 Iowa 704, 77 N. W. 12 Under the universal rule that 495. an indictment is sufBcient If it can 13 State v. Freeman, 15 Vt. 723. be understood therefrom that the 14 Gandy v. State, 13 Neb. 445, act charged is stated with such a 14 N. W. 143. 788 CRIMINAL PROCEDURE. § ff02 of an attempt to do an act or accomplish a result ; there can not be an attempt to commit an attempt.^" § 602. Joinder op counts and consolidation of causes. An indictment or information charging embracery may join a count for embracery with a count charging an attempt to influence an officer in charge of the jury by per- mitting the accused to approach the jurors.^ When sev- eral indictments are preferred at different times, but alleging the same state of facts in different forms, these various indictments will be consolidated and treated as separate counts of one indictment.^ 15 state V. Sales, 2 Nev. 268. 2 State v. Brown, 95 N. C. 685. 1 State V. Brown, 95 N. C. 685. CHAPTER XLI. INDICTMENT — SPEOIFIO CKIMB3. Escape. § 603. Form and sufficiency of indictment. § 604. The escape. § 605. Attempt to escape. § 606. Aiding and abetting escape or attempt to escape. § 607. Negligent escape. § 607a. Voluntary escape. § 603. FoBM AND suFFiciEwcy OF INDICTMENT.^ An in- dictment or information charging escape must allege every essential element of the offense with clearness and reasonable certainty.* Inasmuch as lawful imprisonment is an essential element in an escape to render the accused liable criminally,^ the indictment or information must set 1 As to forms of indictment for escape ia its various phases, see Forms Nob. 915-927. 2 Smith V. State, 81 Ala. 74, 1 So. 83. 3 CALi. — People v. Ah Teung, 92 Cal. 421, 15 L. R. A. 190, 28 Pac. 577. CONN. — State v. Leach, 7 Conn. 452, 18 Am. Dec. 118. FLA.— King V. State, 42 Fla. 260, 28 So. 206. G-A. — Hebersham v. State, 56 Ga. 61; Adams v. State, 121 Ga. 164, 48 S. E. 910. HAWAII— Rex V. Sin Fook, 8 Hawaii 185. ILL.— Housh V. People, 75 III. 487. KAN. — State v. Beebe, 13 Kan. 589, 19 Am. Rep. 93; State v. King, 71 Kan. 287, 80 Pac. 606. KY.— Saylor v. Com., 122 Ky. 776, 93 S. W. 48. MASS. — Com. v. Barker, 133 Mass. 399. NBV.— Ex parte Ah Ban, 10 Nev. 264; State V. Clark, 32 Nev. 153, Ann. Cas. 1912C, 754, 104 Pac. 593. N. J.— State V. Williams, 10 N. J. Law J. 293. N. C — State v. Jones, 78 N. C. 420. ENG.— R. v. Waters, 12 Cox C. C. 390. Departure from an unlawfui im- prisonment or custody is not an escape within the meaning of the law; mere confinement within the walls of a prison, in violation of the law of the state, is not an im- prisonment from which it is a crime to escape. — People v. Ah Teung, 92 Cal. 421, 15 L. R. A. 190, 28 Pac. 570. Finding of court without judg- ment made or given thereon, that a Chinaman had unlawfully come into the United States through Mexico, is not the equivalent of an order or direction given by the commissioner or by a court of the district that the Chinaman should (789) 790 CRIMINAL PROCEDURE. §603 out such facts as show the imprisonment to have been lawful,* but it need not be alleged that the accused had been convicted of or was guilty of any crime ;^ due and regular commitment is all that is required.® A general be removed from the district and held in custody elsewhere for the purpose of returning him to the country from whence he came; and in the absence of such an order the marshal has no author- ity to imprison him. — People v. Ah Teung, 92 Cal. 421, 15 L. R. A, 190, 28 Pac. 577. 4 State V. Jones, 78 N. C. 420. But see Com. v. Ramsey, 1 Brewst. (Pa.) 422. 5 See Grunyon v. State, 68 Ind. 79; State v. Lewis, 19 Kan. 260, 27 Am. Rep. 113; Ex parte Ah Bau, 10 Nev. 264; State v. Daly, 41 Ore. 515, 70 Pac. 706; Com. v. Miller, 2 Ashm. (Pa.) 61; Com. v. Ramsey, 1 Brewst. (Pa.) 422. Guilt of crime committed, or conviction on accusation, are nei- ther necessary to a lawful impris- onment in the county jail; under many circumstances innocent per- sons may be lawfully imprisoned by legal process; and one thus imprisoned, though innocent, is criminally liable for an escape, and so are all persons aiding in such escape. — Ex parte Ah Bau, 10 Nev. 264. See 2 Hawk. P. C. 185 et seq.; 1 Hale P. C. 610; 1 Russ. on Cr. 428. estate v. Murray, 15 Me. 100; Com. V. Morihan, 86 Mass. (4 Allen) 586; Com. v. Miller, 2 Ashm. (Pa.) 61. Absence of commitment for prisoner convicted and sentenced and in hands of sheriff, does not render the imprisonment unlaw- ful, for the reason that the con- viction and sentence are the original authority, for which the certified copy in the commitment is merely the evidence. See Ex parte Gibson, 31 Cal. 619, 91 Am. Dec. 546; Sennott's Case, 146 Mass. 489, 4 Am. St. Rep. 344, 16 N. E. 448; People ex rel. Trainor v. Baker, 89 N. Y. 460; People ex rel. Johnson v. Nevins, 1 Hill (N. Y.) 154; Ex parte Kellogg, 6 Vt. 511; In re Thayer, 69 Vt 314, 37 Atl. 1042; State V. Hatfield, 65 Wash. 550, Ann. Cas. 1913B, 895, 118 Pac. 893; State v. Workman, 66 Wash. 658, 120 Pac. 522; Ex parte Wil- son, 114 U. S. 422, 29 L. Ed. 91, 5 Sup. Ct. Rep. 935; Howard v. United States, 21 C. C. A. 586, 75 Fed. 986, 34 L. R. A. 509. Contra: State v. HoUon, 22 Kan. 580. Absence of evidence or oath to support charge on which accused is committed, where the magis- trate has jurisdiction and power to commit without such evidence, will not justify an escape or a prison breach. — R. v. Waters, 12 Cox C. C. 300. "Difference must necessarily exist between an imprisonment without any process, and wholly without authority of law, and an imprisonment under a process which is simply irregular in form; and this distinction is clearly recognized." — People v. Ah Teung, 92 Cal. 421, 15 L. R. A. 190, 28 Pac. 577. See Dunford v. Weaver, 84 N. Y. 445, affirming 21 Hun §603 ESCAPE. 791 averment, in the language of the statute, that a prisoner was in the lawful custody of an ofiScer^ is sufficient to meet all the requirements,* and on an allegation that the pris- oner was imprisoned under an order of a designated court, the jurisdiction of which is fixed by public statute, it is not necessary to further allege that the court had jurisdiction to make the order.* Intent being an element, under the particular statute, in an attempt to escape^" or in an escape,^^ such intent is an essential ingredient which must be alleged in the in- dictment and proved at the trial beyond a reasonable doubt ;^^ but this intent is sufficiently alleged where the facts are set out showing an attempt to escape, or an actual escape, because the charge of an attempt, or the (N. T.) 341; Goodwin v. Griffls, 88 N. T. 629. Informality or Irregularity in commitment or proceedings does not justify an escape. — State v. Nauerth, 62 Kan. 869, 64 Pac. 69; State V. Murray, 15 Me. 103; Com. V. Morihan, 86 Mass. (4 Allen) 586. Lawfulness of commitment does not depend upon the actual guilt or innocence of a prisoner; even though innocent it is his duty to remain until discharged by au- thority of law. — State v. Lewis, 19 Kan. 260, 27 Am. Rep. 113. Thus a committing magistrate before whom one accused of crime is taken may remand him for three days or more for his exam- ination, and if he escapes before the date fixed for the hearing he is liable for such escape, even though he duly appears for the hearing on the day fixed. — R. v. Waters, 12 Cox C. C. 390. 7 Private individual employed by under-sheriff, in whose hands the commitment was placed, to guard the prisoner pending his transfer to jail, the prisoner is in lawful custody. — State v. Law- rence, 43 Kan. 125, 23 Pac. 157. sHoupt V. State, 100 Ark. 409, 140 S. W. 294; King v. State, 42 Fla. 260, 28 So. 206. 9 Daniel v. State, 114 Ga. 533, 40 S. E. 805; State v. Whalen, 98 Mo. 222, 11 S. W. 576. Location of court need not be stated. — Daniel v. State, 114 Ga. 533, 40 S. E. 805. See Com. v. Ramsey, 1 Brewst. (Pa.) 422. Magistrate issuing order of ar- rest. Indictment should allege that he had jurisdiction to do so. — Martin v. State, 32 Ark. 124. 10 As to attempt to escape, see. Infra, § 605. 11 As to the escape, see, infra, §604. 12 State V. Rodriguez, 31 Nev. 342, 102 Pac. 863; State v. Clark, 32 Nev. 145, Ann. Cas. 1912C, 754, 104 Pac. 593. 792 CRIMINAL PROCEDUBB. § 603 actual escape, necessarily includes and is equivalent to a charge of an intent.^^ But where the act is forbidden by statute, which is silent concerning the intent with which the act is done, a person doing the unlawful act forbidden is guilty of the crime charged, even though he had no wrongful intent beyond that which is involved in the doing of the act prohibited,^* and intent, not being an ele- ment in such case, need not be charged in the indict- ment. Language of the statute,^^ or the substantial language of the statute,^* being followed in the indictment or in- formation, it will usually be sufficient, where the statute contains all the essential elements of the offense sought to be charged, without adding the details comprised within the statutory definition," and without setting forth the cause for which the accused was imprisoned or under guard' ^ at the time when he made his attempt to escape or did escape ;'* but it is otherwise in those cases in which the statute does not set forth all the essential elements of the offense sought to be charged, in which case the acts 13 state V. Clark, 32 Nev. 145, Angelo, 18 Nev. 425, 5 Am. Cr. Ann. Cas. 1912C, 754, 104 Pac. 503; Rep. 62, 4 Pac. 1080. TEX.— Bar- State V. Daly, 41 Ore. 515, 70 Pac. thelow v. State, 26 Tex. 175; State 707. See Prince v. State, 35 Ala. v. Hendrick, 35 Tex. 485. 367; Johnson V. State, 14 Ga. 55. le Dickens v. State, 109 Ark. 14 State V. Zichfeld, 23 Nev. 304, 425 igO S W 218 62 Am. St. Rep. 800, 34 L. R. A. ;^ ^ [ ' 784, 46 Pac. 802; State v. Clark, 3^ ^'^- ^'■ 32 Nev. 145, Ann. Cas. 1912C, 754, 104 Pac 593 ^^ ^®® State v. Lawrence, 43 15 See: ALA.-Smith v. State, ^^°- ^^S, 23 Pac. 157. 76 Ala. 69; Hurst v. State, 79 Ala. " Harris v. Com., 23 Ky. L. Rep. 55; Romey v. State, 9 Ala. App. 51, 775, 64 S. W. 434. 64 So. 168. ARK. — Houpt v. State, An allegation that the accused 100 Ark. 409, 140 S. W. 294. KY.— " unlawfully " escaped from a Hlnkle v. Com., 23 Ky. L. Rep. named chain gang dispenses with 1988, 66 S. W. 816. MICH.— Peo- the further allegation that the pie V. Murray, 57 Mich. 396, 24 chain gang was a lawful place of N. W. 118. MO. — Desoto v. Brown, confinement. — Daniel v. State, 114 44 Mo. App. 148. NEV.- State v. Ga. 533, 40 S. E. 805. §604 ESCAPE. 793 of the accused bringing him within the purview of the statute must be set out.^" "Feloniously/ and unlawfully" being a provision in the statute, these words must be used in the indictment or in- formation,^^ otherwise they are not essential to a valid indictment.^^ § 604. The escape. We have already seen that before there can be a criminal escape there must be a lawful cus- tody,^ and for this reason the indictment or information should set forth facts from which the court can see that the accused was, at the time of the acts complained of, in lawful custody f because if he be not in lawful custody, as 20 See King v. State, 42 Fla. 260, 28 So. 206; State v. Lawrence, 43 Kan. 125, 23 Pac. 157; Com. v. Fil- burn, 119 Mass. 297; State v. Hil- ton, 26 Mo. 199; Vaughan v. State, 9 Tex. App. 563. 21 "Feloniously," in an indict- ment for an escape, in any of its phases, means that the act com- plained of was done with the in- tent to commit the crime and with a design on the part of the perpe- trator to commit the offense with which he is charged. — State v. Clark, 32 Nev. 145, Ann. Cas. 1912C, 754, 104 Pac. 503. This is the general rule of crim- inal pleading. See: IDA. — People V. Butler, 1 Ida. 231. IND.— Ham- ilton V. State, 142 Ind. 276, 41 N. E. 588. IOWA— State v. Boyle, 28 Iowa 522. KAN. — State v. Doug- las, 53 Kan. 669, 37 Pac. 172. MASS. — Com. V. Adams, 127 Mass. 15, 17. MONT. — State v. Rech- nitz, 20 Mont. 488, 52 Pac. 264. MO. — State v. Noland, 111 Mo. 473, 19 S. W. 715. NBV. — State v. Slingerland, 19 Nev. 135, 7 Pac. 280; State v. Hughes, 31 Nev. 270, 102 Pac. 652. N. Y. — Phelps v. People, 72 N. Y. 334, 2 Con. Cr. Rep. 383; People v. Conroy, 97 N. Y. 62, 68, 2 N. Y. Cr. Rep. 565, affirming 33 Hun 119, 2 N. Y. Cr. Rep. 247; People v. Wil- lett, 102 N. Y. 251, 4 N. Y. Cr. Rep. 200, 6 N. E. 301; People v. Hart- well, 166 N. Y. 361, 15 N. Y. Cr. Rep. 377, 59 N. E. 929; People v. Mosier, 73 App. Div. 5, 16 N. Y. Cr. Rep. 541, 76 N. Y. Supp. 65; People V. Dumar, 42 Hun 80, 5 N. Y. Cr. Rep. 55; reversed on another point, 106 N. Y. 502, 8 N. Y. Cr. Rep. 263, 13 N. E. 325; In re Van Orden, 35 Miss. 215, 15 N. Y. Cr. Rep. 79, 65 N. Y. Supp. 720. S. D.— State v. Halpln, 16 S. D. 170, 91 N. W. 605. WASH.— State V. Smith, 31 Wash. 248, 71 Pac. 767. ENC— Holloway's Case, 1 Den. Cr. Cas. 376. 22 Randall v. State, 53 N. J. L. 488, 22 Atl. 46. 1 See, supra, § 603, footnote 3. 2 People V. Ah Teung, 92 Cal. 421, 15 L. R. A. 190, 28 Pac. 577; King V. State, 42 Fla. 260, 28 So. 206; Ex parte Ah Bau, 10 Nev. 264. Under a statute denouncing and 794 CRIMINAL PEOCEDUEB. §604 where lie is confined in a jail or other prison under a void warrant, he may liberate himself from such prison without being guilty of the crime of escaping from prison.* An indictment or information charging that the accused was in lawful custody sufficiently alleges the lawfulness of the arrest from which he escaped.* Charging that accused did unlawfully break away and escape from a deputy sheriff, while being committed lawfully to jail, is suffi- cient f and charging accused with breaking away from the custody of a constable, the latter having, upon a warrant issued by a justice of the peace, arrested accused for a punishing any person confined "in prison" who escapes therefrom, where the Indictment states or the evidence on the trial shows that the accused at the time of the alleged breaking of prison and escaping were working outside of the prison walls, in charge of an officer, and dropped into a crevice in the earth, which they covered with stone and re- mained hid for a couple of days, and until the officers departed, when they removed the stone and walked forth without restraint and regained their liberty without op- position, an escape from prison is not charged or established (State V. King, 114 Iowa 413, 89 Am. St. Rep. 371, 87 N. W. 282), because a prison breach implies acts con- stituting the breaking of a prison, and these acts are not different from those essential to be charged and shown in burglary or other criminal breaking. — Randall v. State, 53 N. J. L. 488, 22 Atl. 46. Escape from chain gang sent to commissioner to work on city streets, held not to be a criminal escape. — State v. Owens, 268 Mo. 481, 187 S. W. 1189. Jurisdiction of the person and the offense on the part of the court, the imposition by mis- take of a sentence in excess of what the law permits is within the jurisdiction of the court, and does not render the sentence void, but voidable only. — Sennott's Case, 146 Mass. 489, 4 Am. St. Rep. 344, 16 N. E. 448. See Kirby v. State, 62 Ala. 51; Lark v. State, 55 Ga. 435; In re Phinney, 32 Me. 440; Ross' Case, 19 Mass. (2 Pick.) 165; Feeley's Case, 66 Mass. (12 Cush.) 598 ; Ex parte Shaw, 7 Ohio St. 81, 70 Am. Dec. 55; Ex parte Van Hagan, 25 Ohio St. 426; In re Semler, 41 "Wis. 517. 3 State V. Leach, 7 Conn. 452, 18 Am. Dec 118. Warrant void, prisoner may lib- erate himself by breaking the prison, provided he uses no more force than is necessary to enable him to effect his liberation. — State V. Leach, 7 Conn. 452, 18 Am. Dec. 118. 4 King V. State, 42 Fla. 260, 28 So. 206. estate v. Miller, 95 Kan. 310, 147 Pac. 844. §604 ESCAPE. (90 misdemeanor, is sufficient, without alleging that the com- mitment issued by the justice was directed to the con- stable.^ That accused did escape from custody,'' or from prison, must be distinctly alleged, but this allegation may be made in the language of the statute,* in technical words or phrases,® or in ordinary words, such as "break- ing out," which is equivalent to "breaking prison,"^" but the phrase "breaking from jail," does not necessarily mean a completed act;^^ "duly committed " ;^^ "feloni- ously" or "unlawfully" did escape,^^ and. the like. But it is not necessary to allege that the accused was in cus- tody by virtue of a warrant;" that commitment, or a copy of the judgment, was in the custodian's hands,^® or that the custodian was an officer," or that he received the prisoner in the capacity of jailer •,^'' or state the crime 6 state V. Shirley, 233 Mo. 335, 135 S. W. 1. ^ See footnotes 5 and 6, this sec- tion. An indictment or information alleging that the accused, while lawfully confined in the state prison under a Judgment of a court of competent jurisdiction for a designated crime, "did unlaw- fully, forcibly and feloniously break out of the cell in said prison in which he was confined, and out of the building in which said cell was arid is," charges an overt attempt to escape, and contains a sufficient statement of facts to show the commission of the crime sought to be charged. — State v. Angelo, 18 Nev. 425, 5 Am. Crim. Rep. 62, 4 Pac. 1080. 8 See, supra, § 603, footnotes 15 et seQ. 9 "Exivit ad largum" sufficiently expresses the act and fact. — State V. Maberry, 3 Strobh. (S. C.) 144. 10 Randall v. State, 53 N. J. L. 488, 22 Atl. 46. 11 State V. Angelo, 18 Nev. 425, 5 Am. Cr. Rep. 62, 4 Pac. 1080. 12 Com. V. Mitchell, 66 Ky. (3 Bush) 30; State v. Baldwin, 80 N. C. 390. 13 Daniel v. State, 114 Ga. 533, 40 S. E. 805. 14 State V. Sparks, 78 Ind. 166. 15 State V. Angelo, 18 Nev. 425, 5 Am. Cr. Rep. 62, 4 Pac. 1080; State V. Hatfield, 65 Wash. 550, Ann. Cas. 1913C, 895, 118 Pac. 893; followed In State v. Workman, 66 Wash. 658, 120 Pac. 522. A different rule seems to pre- vail in Kansas. See State v. Beebe, 13 Kan. 589, 19 Am. Rep. 93; State v. HoUon, 22 Kan. 580. 16 Smith V. State, 76 Ala. 69; State V. Lawrence, 43 Kan. 125, 23 Pac. 157. 17 Weaver v. Com., 29 Pa. St. 445 796 CRIMINAL PROCEDURE. § 605 for which accused was convicted, or the term for which he had been sentenced to prison,^ ^ or state that he was sentenced to hard labor ;^^ or allege the jurisdiction of the court trying and sentencing the accused;^" or give any of the particulars regarding the crime, the arrest, the trial,, or the conviction.^^ § 605. Attempt to escape. We have already seen that lawful imprisonment is a necessary element in escape,^ and that there must be a lawful custody before there can be an escape,^ from which it follows that a valid com- mitment or lawful custody is an essential element in an at- tempt to escape. One who is confined in a jail or other prison, or otherwise restrained of his liberty, under a void warrant may attempt to liberate himself from such imprisonment or restraint without being guilty of the crime of attempting to escape.'' One indicted for ' ' escap- ing" from prison may be convicted of, or plead guilty to, an "attempt to escape," where the latter is made a fel- ony by the statute, because the latter is included in the former on the principle that the greater includes the lesser crime.* Where an attempt to escape is charged, 18 Harris v. Com., 23 Ky. L. Rep. to be set forth In some states. — 775, 64 S. W. 434. Martin v. State, 32 Ark. 124. 19 "Hard labor": An Informa- 21 State v. Johnson, 93 Mo. 317, tion for escape while serving a 6 S. W. 77; State v. Hedrick, 37 sentence of imprisonment for Tex. 485. being intoxicated and while em- 1 See, supra, § 603, footnote 3. ployed withttut the walls of the 2 See, supra, § 604, footnote 2. jail, need not allege that accused s State v. Leach, 7 Conn. 452, was sentenced to hard labor, that 18 Am. Dec. 118. not being a part of the penalty of 4 Ex parte Cook, 13 Cal. App. the offense.— State v. Wright, 81 399, 110 Pac. 352. Vt. 281, 69 Atl. 761. Attempt to escape from jail 20 Daniel v. State, 114 Ga. 533, charged, the indictment conclud- 40 S. E. 805; State v. Whalen, 98 ing "that the defendant then and Mo. 222, 11 S. W. 756. there did fail In the perpetration Facts to show authority of mag- of said offense, and was inter- istrate issuing warrant of arrest cepted and pre'-onted in the execu- on charge of crime are required tion of the s:, . ' held to plainly §605 ESCAPE. 797 the indictment or information need not aver that at the time of the alleged attempt the custodian or officer hav- ing the accused in charge had in his possession a warrant or commitment for the imprisonment of the accused," in the absence of statutory provisions so requiring.* Intent to escape being a necessary elemenf^ in a charge of an attempt to escape from jail or other prison, or from lawful custody and control, an indictment alleging that the accused "did wilfully, unlawfully, and feloniously at- tempt to break out of said county jail, and in pursuance of said attempt did wilfully, unlawfully, and feloniously break out of a cell in said county jail in which they and each of them were confined," sufficiently alleges the in- tent of the accused,® because it sufficiently charges that the accused did those things made criminal and forbidden by law,® and for the further reason that "a charge of an indicate that the accused failed to perpetrate the breaking and not that he failed to perpetrate the attempt. — Com. v. Rodman, 34 Pa. Sup. Ct. Rep. 607. Plea of guilty to an attempt to escape from prison under an in- dictment charging an escape is a waiver of any defects in the indict- ment which would have rendered it vulnerable to demurrer. — In re Cook, 13 Cal. App. 399, 110 Pac. 352, following In re Myrtle, 2 Cal. App. 383, 84 Pac. 335. 5 State V. Angelo, 18 Nev. 425, 5 Am. Cr. Rep. 62, 4 Pac. 1080; State V. Hatfield, 65 Wash. 550, Ann. Cas. 1913C, 895, 118 Pac. 893; State V. Workman, 66 Wash. 658, 120 Pac. 522. See, also, authori- ties cited to first reading para- graph in footnote 6, § 603, supra. Reason for the rule being that the statute does not make that an essential fact to be proved. — State V. Angelo, 18 Nev. 425, 5 Am. Cr. Rep. 62, 4 Pac. 1080. 6 State V. Beebe, 13 Kan. 589, 19 Am. Rep. 93; State v. HoUon, 22 Kan. 580. 7 See, supra, § 603, footnotes 10 et seq. 8 State V. Clark, 32 Nev. 145, Ann. Cas. 1912C, 754, 104 Pac. 593. 9 CONN. — Myers v. State, 1 Conn. 502. IND.— Hood v. State, 56 Ind. 263, 26 Am. Rep. 21. KY.— Davis V. Com., 66 Ky. (3 Bush) 318. ME.— State v. Goodenow, 65 Me. 30. MASS.— Com. v. Marsh, 48 Mass. .(7 Mete.) 472; Com. v. Connelly, 163 Mass. 539, 4 N. E. 862. NEV.— State v. Anderson, 3 Nev. 256 ; State v. Johnson, 9 Nev. 178; State v. Angelo, 18 Nev. 425, 4 Pac. 1080; State v. Clark, 32 Nev. 145, Ann. Cas. 1912C, 754, 104 Pac. 593. N. C — State v. Voight, 90 N. C. 741. 798 CRIMINAL PROCEDURE. § 606 attempt to escape necessarily includes and is equivalent to a charge of an intent to accomplish what was intended" and need not specifically allege the intent.^" § 606. Aiding and abetting escape ob attempt to ESCAPE. We have already seen that criminal liability for escape depends upon the legality of the imprisonment/ and this rule of law applies also in the case where one is charged with aiding and assisting a prisoner to escape, or in his attempt to escape.^ We have al- ready seen that where a person is unlawfully impris- oned or restrained of his liberty under a void war- rant, he may liberate or attempt to liberate himself therefrom, using such force as may be necessary to accomplish that purpose, without rendering himself crim- inally liable;^ and another may lawfully assist therein; but the fact that the prisoner is innocent of any crime* will not justify him in escaping or any one in aiding and assisting him in an attempt to escape,^ except in those cases where the officer making the arrest, and from whom the escape is aided, was not acting in the line of his duty at the time of making the arrest." A mere irreg- 10 state V. Clark, 32 Nev. 145, One who, without violence, as- Ann. Cas. 1912C, 754, 104 Pac. 593; sists a person who Is confined State V. Daly, 41 Ore. 515, 70 Pac. without authority or process of 707. See Prince v. State, 35 Ala. law to depart from his place of 367; Johnson v. State, 14 Ga. 55. confinement, is not guilty of the 1 See, supra, § 603, footnote 4; crime of assisting a prisoner to § 604, footnote 3. escape. — People v. Ah Teung, 92 2 CAL.— People V. Ah Teung, 92 Cal. 421, 15 L. R. A. 190, 28 Pac. Cal. 421, 15 L. R. A. 190, 28 Pac. 577. 577. GA. — Habersham v. State, 56 * See, supra, § 603, footnote 5. Ga. 61. ILL. — Housh v. . People, 8 See Maxey v. State, 76 Ark. 75 III. 478. IND.— Redman v. State, 276, 88 S. W. 1009; Habersham v. 28 Ind. 205. KAN. — State v. Beebe, State, 56 Ga. 61; State v. Bates, 13 Kan. 589, 19 Am. Rep. 93. 23 Iowa 96; State v. Johnson, 136 MICH. — People v. Hamaker, 92 Iowa 228, 113 N. W. 832; Holland Mich. 11, 52 N. W. 82. CANADA— v. State, 60 Miss. 939. R. V. Trapnell, 22 Ont. L. Rep. 219. g People v. Hochstim, 76 App. 3 See, supra, § 604, footnote 3; Div. (N. Y.) 25, 17 N. Y. Or. Rep. § 605, footnote 3. 117, 78 N. Y. Supp. 638. § GOG ESCAPE. 799 ularity in the proceedings and imprisonmenf will not justify another in aiding or assisting the prisoner to escape;* and the same is true where the officer having the prisoner in charge is merely a de facto officer* or a person delegated by an officer to take temporary custody of the prisoner.^" Facts showing lawful custody'^^ must he set out in the indictment or information, but the facts constituting the offense for which the prisoner was confined need not be set out.^^ The indictment or information will be suffi- cient where it alleges lawful detention in a stated place of confinement/^ and charges the accused with specified acts in which he attempted to assist the prisoner to es- cape therefrom, without specifically averring that the acts alleged to have been done, and of which complaint is made, were useful to aid the prisoner, in those cases where the acts set out, by their very nature, import such usefulness.^* Thus, charging accused unlawfully set at liberty a prisoner then and there under lawfxd arrest, by aiding him to escape from a deputy marshal by detaining the deputy marshal when the prisoner was making his es- cape, is sufficients^ 7 See, supra, § 603, footnote 6. is State v. Daly, 41 Ore. 515, 70 8 Com. V. Horihan, 86 Mass. (4 Pac. 706. Allen) 585. i* Johnson v. State, 7 Ala. App. 9 Robinson v. State, 82 Ga. 535, 88, 60 So. 973. 9 S. B. 528. A charge that defendant inten- 10 State V. Lawrence, 43 Kan. tionally assisted a prisoner law- 125, 23 Pac. 157. fully confined "on a charge of 11 State V. Jones, 78 N. C. 420. misdemeanor, to escape therefrom An Indictment or information by drilling or prizing out a hole charging accused with obstruction through the walls of said jail," is of an officer, and alleging that sufficient without averring that the prisoner was In lawful cus- the act was done with the inten- tody of the sheriff, is sufficient. — tion to facilitate the escape. — King V. State, 42 Fla. 265, 28 So. Marshall v. State, 120 Ala. 390, 206. 25 So. 208. 12 State V. Daly, 41 Ore. 515, 70 is Dickens v. State, 109 Ark. Pac. 706. 425, 160 S. W. 218. 800 CRIMINAL PEOCEDUEB. § 606 Charging in the language of the statute aiding and as- sisting a prisoner in escaping, or in an attempt to escape, or charging in the substance of the language of the stat- ute, within the rule above set out,^® has been held to be sufficient,^'^ although there is authority to the con- trary,^* where accompanied by a statement of the facts out of which the offense arose ;^^ and some of the cases hold there need be no allegation that the accused knew of the arrest and that the prisoner was in custody, or that accused intended to aid in his escape^" — but this is not the general rule, as we show in the next paragraph. Knoivledge by the accused that the person assisted was in legal custody is an indispensable ingredient of the offense of assisting him in escaping, or in an attempt to escape, unless the acts charged to have been done by the accused necessarily imply knowledge ; and unless such knowledge is alleged, or the acts charged to have been done by the accused necessarily imply knowledge on his part, the indictment or information will be insufficient to adequately state the offense charged.^^ The acts done by 16 See, supra, § 603, footnotes person may do many things which 15-20, and text going therewith would aid a prisoner in an escape 17 Kamey v. State, 9 Ala. App. without any criminal intent or 51, 64 So. 168. liability. Thus If he should re- "Unto" the jail instead of "into" ceive and entertain one for a the jail, held bad and could not night, in ignorance that his hospl- be amended, under How. Ann. tality was extended to a fugitive Mich. Stats., § 8537. — People v. criminal, or if he should overtake Rathhun, 105 Mich. 699, 63 N. W. him on a highway and innocently 973. give, him a ride, he might thus 18 King V. State, 42 Ha. 260, 28 materially aid the prisoner to es- So. 206. cape, but certainly he would not 19 People V. Murray, 57 Mich, be guilty of wrong, nor punish- 396, 6 Am. Cr. Rep. 31, 24 N. W. able under the statute. A well- 118. meant hospitality, or an innocent 20 Id. charity, should not subject a per- 21 State V. Lawrence, 43 Kan. son to criminal prosecution and 125, 23 Pac. 157; Com. v. Filbum, punishment; and for that reason, 119 Mass. 297; State v. Hilton, before the act can be held to be 26 Mo. 199. criminal, it must be done with a Reason for the ruling is that a criminal Intent. — State v. Law- §606 ESCAPE. 801 the accused to aid the prisoner in his escape should be set out,^^ and the intent of the accused should be alleged.^^ Where the acts done by way of assistance are alleged, they may be of such a character that ^ilty knowledge would necessarily be inferred, and thereby excuse an ex- press allegation of knowledge on the part of the accused.^* The fact that a prisoner is in custody of an officer is notice of a lawful custody to any one assisting him in escaping, or in attempting to escape,^^ but the legal char- acter of the custody need not be positively known, it being sufficient if the accused has good reason to believe that it is legal.^^ Intent of prisoner to escape^'' and of accused to assist him therein^^ is essential to the offense of aiding and rence, 43 Kan. 125, 23 Pac. 157; State V. Fry, 40 Kan. 311, 19 Pac. 742. 22 State V. Lawrence, 43 Kan. 125, 23 Pac. 157. 23 Jenkins v. State, 49 Tex. Cr. Rep. 470, 93 S. W. 554. 24 State V. Lawrence, 43 Kan. lS5, 23 Pac. 157, in which case the court say: "If the defendant had furnished a prisoner confined In the jail instruments which could only have been intended to facili- tate an escape, or had broken the prison door, or had forcibly as- saulted or obstructed an officer who had a prisoner in charge, an express allegation of knowledge that the prisoner was in custody might not be necessary; but where the acts done are in their nature innocent, such knowledge should be stated." 25 Newberry v. State, 15 Ohio Cir. Ct 208, 7 Ohio Cr. Dec. 622. 26 Habersham v. State, 56 Ga. 61. 27 Under a statute . prohibiting and punishing one who aids or I. Crim. Proc. — 51 assists any prisoner "in an intent to escape," the indictment or in- formation charging the offense which alleges that the accused un- lawfully and feloniously assisted the prisoner "in an attempt to escape" from jail, sufficiently al- leges an intent on the part of the prisoner to escape, and is good after verdict. — State v. Daly, 41 Ore. 515, 70 Pac. 706. 28 Intent an ingredient of tlie crime charged against the ac- cused, and that it should be averred Is unquestioned, but this intent is substantially alleged where it is charged that the ac- cused assisted a designated pris- oner In an attempt to escape, by doing certain specific acts, as he could not assist in an attempt to escape unless such attempt was actually made; and the fact that the prisoner attempted to escape, and, as an attempt to escape necessarily involves an intent to do so, it follows that the prisoner making the attempt had such an intent. The court say: "There 802 CRIMINAL PROCEDURE. 607 abetting in an escape, or in an attempt to escape ; conse- quently an indictment or information charging aiding and abetting a prisoner legally confined in jail to escape therefrom which does not allege that the accused did the acts complained of with the intent to aid in the escape of such prisoner is insufficient,^* except in those cases in which the acts of accused as set out in the indictment dis- close a manifest intention on his part,^° in which case it is not necessary to allegp intent on the part of the pris- oner. § 607. Negligent escape. The statutes in some of the states, as in North Carolina,'^ and Texas,^ and perhaps elsewhere, draw a distinction in the action of an officer in negligently permitting a prisoner to escape and vol- untarily allowing him to go at large, making them sep- arate 9.nd distinct offenses. In all the states negligent and voluntary escapes are recognized, but the general rule is that a voluntary escape always embraces an ele- ment of negligence and therefore includes a negligent es- cape, on the ground that the greater crime includes the lesser, so that under an indictment for a voluntary escape, an officer may be convicted of a negligent escape.* Under the statutes making the two classes of escapes separate and distinct offenses, the procedure is not uniform, some of the cases holding that an indictment charging that the Is, of course, a distinction be- 390, 25 So. 208 (in wMcli case tween an intention and an at- accused drilled a hole in the wall tempt. Intent Is a quality of the of the prison in which the person mind, which implies a purpose sought to be aided was confined) ; only, while an attempt implies an Johnson v. State, 7 Ala. App. 88, efEort to carry that purpose into 60 So. 973 (in which case the execution; but there can be no accused pried open the bars of a attempt until there has been an window in the jail in which the intent." — State v. Daly, 41 Ore. prisoner was confined). 515, 70 Pac. 706. i N. C. Code, 1889, § 1022. 29 Jenkins v. State, 49 Tex. Cr. 2 State v. Dorsett, 21 Tex. 656. Eep. 470, 93 S. W. 554. 3 See, infra, § 608, footnote 5, 30 Marshall v. State, 120 Ala. and text going therewith. § 607a ESCAPE. 803 accused "unlawfully and negligently" permitted a pris- oner to escape is good,* while other cases hold that such an allegation charges two distinct offenses, and is for that reason bad for duplicity.^ A, de facto officer, equally with a legally qualified officer, is liable criminally for suf- fering a negligent escape." The form and the sufficiency of a criminal pleading charging suffering either a negli- gent or a voluntary escape are substantially the same, and are treated in the following section. § 607a. VoLXTNTARY ESCAPE. A rcgularly and duly ap- pointed or elected officer and a de facto officer^ are equally criminally liable for suffering either a negligent or a vol- untary escape^ of a prisoner duly and lawfully committed to their charge ; mere irregularity in the proceedings and imprisonment^ not furnishing any justification therefor ;* and on an indictment charging an officer with suffering a voluntary escape, he may be convicted of suffering a negligent escape, because the former offense is of a higher grade and includes the latter offense,^ imless it be 4 State V. McLain, 104 N. C. 857, interest in the due and proper 12 S. E. 251. detention and punishment of the 5 State V. Dorsett, 21 Tex. 656. violators of the criminal law; the 6 Kavanaugh t. State, 41 Ala. public interest can not be made 399; Pentecost v. State, 107 Ala. subservient to the Illegal acts of 81, 18 So. 146; State v. Mayberry, those officers having charge of 3 Strobh. L. (S. C.) 144. persons convicted of crime, and 1 Kavanaugh v. State, 41 Ala. whose duty it is to execute the 399; Pentecost v. State, 107 Ala. sentence of the court in accord- 81, 18 So. 146; State v. Mayberry, ance with its final process. — Peo- 3 Strobh. L.. (S. C.) 144. pie v. Mallary, 1£I5 111. 582, 596, 2 Doctrine of voluntary escape, 88 Am. St. Rep. 212, 221, 63 N. E. which prohibits the party being 588. retaken and continued in impris- 3 See, supra, § 603, footnote 6. onment, applicable in civil cases, 4 State v. Garrell, 82 N. C. 580; as in imprisonment for debt, in R. v. Fell, 1 Ld. Raym. 424, 91 which the creditor, and not the Eng. Repr. 1181; R. v. Shuttle- people, is interested in the pris- worth, 22 Up. Can. Q. B. 372. oner's detention, does not apply in 5 Nail v. State, 34 Ala. 362. See criminal cases, in which the peo- Henry v. State, 33 Ala. 389; Skin- pie of the whole state have an ner v. White, 9 N. H. 204; Fair 804 CRIMINAL PROCEDURE. § ()07a othermse in those states in which a voluntary escape and a negligent escape are made separate and distinct of- fenses.® Facts showing that accused had the legal custody of the prisoner named should be set forth in an indictment charging either a negligent or a voluntary escape,'^ but it is not necessary to allege the particulars regarding the prisoner's crime, arrest, trial, or sentence;^ that accused received the prisoner as such, the commitment, his office, and the custody, necessarily including the reception f or to allege or prove that the accused, as the keeper of a common jail, had knowledge of the guilt of the prisoner committed to his charge.^" Thus, an indictment or infor- mation charging that the accused, as sheriff and common jailer, permitted the escape of one in his lawful custody under a warrant issued by a coroner charging the crime of murder, sufficiently charges that the escaped prisoner was in the lawful custody of the accused.^^ It must be distinctly averred that the designated prisoner went at large.^^ child V. Case, 24 Wend. (N. Y.) ting an escape, it need not be 381, 383; Smith v. Hart, 1 Brev. averred that accused had the pris- (S. C.) 146. oner in his custody by virtue of a 6 See State v. Dorsett, 21 Tex. warrant. — State v. Sparks, 78 Ind. 656. 166. See R. v. Boothie, 2 Burr. TSee: ALA. — Kavanaugh v. 864, 97 Eng. Repr. 65. State, 41 Ala. 399. ARK.— Martin 8 State v. Hedrick, 35 Tex. 486. V. State, 34 Ark. 129. N. C— State 9 Weaver v. Com., 29 Pa. St. V. Baldwin, 80 N. C. 390; State 445. V. Shaw, 38 N. C. (3 Ired. L.) 20; lo "It matters not whether the State V. Jones, 78 N. C. 420; State escape be suffered before or after V. Ritchie, 107 N. C. 857. PA. — the guilt has been judicially ascer- Weaver v. Com., 29 Pa. St. 445. tained." — Weaver v. Com., 29 Pa. ENG.— R. v. Boothie, 2 Burr. 864, St. 445. 97 Eng. Repr. 65; R. v. Fell, 1 Ld. ii Houpt v. State, 100 Ark. 409, Raym. 424, 91 Eng. Repr. 1181; Ann. Cas. 1913C, 690, 140 S. W. 1 Salk. 272, 91 Eng. Repr. 237. 294, distinguishing Martin v. State, Constable arresting without 32 Ark. 124. warrant, under his authority as a 12 2 Hawk. P. C, eh. 19, §14; peace officer, indicted for permit- 1 Russ. on Cr. (9th ed.) 588. § 607a ESCAPE. 805 An indictment or information drawn substantially in the language of the statute is generally sufficient.^* Inapt use of words will not vitiate the indictment ; such as using the term "feloniously" in charging an escape on impris- onment for a misdemeanor,'^ or using the word " offense " for the word "crime" in charging sheriff with permitting trespass, ' ' where the content of the indictment shows that the voluntary escape of a person convicted of "wilful "offense" was used in the sense of " criminal. "''^ 13 See, supra, § 603, footnotes 15 to be charged.— State v. Sparks, et s°f». 78 Ind. 166, 3 Crim. L. Mag. 884. Better practice to follow exact i* State v. Sparks, 78 Ind. 166, language of statute, where the 3 Crim. L. Mag. 884. statute embraces all of the neces- i5 Com. v. Shields, 50 Pa. Sup. sary elements of the crime sought Ct. Rep. 194. CHAPTER XLH. INDICTMENT SPECIFIC CRIMES. Extortion. § 608. Form and sufficiency of indictment. § 609. Description of the offense. § 610. Allegation as to the service. § 611. Allegation as to the office. § 612. Allegation as to person and ownership of the money. § 613. Allegation as to fees. § 614. Allegation as to knowledge. § 615. Allegation as to intent. § 616. Attempt to commit extortion, § 617. Joinder of causes. § 618. Joinder of defendants. § 608. FOKM AND STJFFICIBNCY OF INDICTMENT.* At COm- mon law the teclinical terms did "extort" (extorquere) and "by legal color of office" (colore officii)^ are neces- sary to be used in an indictment or information charg- ing the commission of the crime of extortion,* but under the statutes and by the practice in this country these terms are not required, it being sufficient to charge that money or other thing of value* was "extorsively" 1 As to forms of indictment dupllcitous. — R. v. Roberts, Carth. charging extortion, see Forms 226. Nos. 928-937. 3 Leeman v. State, 35 Ark. 438, 2 Position and public service, 37 Am. Rep. 44. equally with public office, seems 4 Completed transaction and re- to have been included at common ceipt of money or something of law, for we have a case in which a value essential to the crime. See ferryman was Indicted on the 3 Kerr's Whart. Grim. Law, § 1898. charge of extorting divers sums, — Mere agreement to pay, or the exceeding the ancient rate, for fer- taking of a promissory note which rylng men and cattle over a is void, will not be sufficient. — river — which indictment was held Com. v. Cony, 2 Mass. 523 ; Com. v. bad on the ground that it was Pease, 16 Mass. 91, 93; Com. v. (806) § 608 EXTORTION. 807 taken ;^ and an allegation that tlie accused "unlawfully, corruptly, deceitfully, extorsively, and by color of his of- fice" took money as fees he was not entitled to by law, was held to be sufficient without the word ' ' wilfully, ' ' after ver- dict.® The indictment or information must be certain in every material allegation.'^ While it is necessary to allege that a sum of money or thing of value was received by the accused, it is not necessary to prove the exact sum of money or the exact value of the thing received as laid in the indictment. Thus, if a person be indicted for taking extorsively twenty dollars, and the proof shows such taking was of one dollar only, it will be sufficient.^ An indictment for conspiracy to extort need not state that the payment was made voluntarily.® Charging in the language of the statute, or substan- tially in the language of the statute, the crime of extor- tion, is sufficient where the statute defining the offense contains all the essential elements of the crime sought to be charged,^" subject to the qualification that the crime sought to be charged must be set forth with such cer- tainty as will apprise the accused of the offense imputed to him.^i This is the general rule in all the states; but Dennie, Thatch. C. C. 165, 175; 7 State v. Brown, 12 Minn. 490 R. V. Burdett, 1 Ld. Raym. 148, (Gil. 393). 91 Eng. Repr. 996. s Com. v. Dennie, Thach. C. C. Where a note has been taken (Mass.) 165, 175; R. v. Burdett, 1 upon which the money has sub- Ld. Raym. 149, 91 Eng. Repr. 996; sequently been realized, the case R. v. Gillham, 6 T. R. 265, 267, will be different, and the extortion 101 Eng. Repr. 545, 546. complete. — R. v. Higgins, 4 Car. & 9 Com. v. Brown, 23 Pa. Sup. Ct. P. 247, 19 Eng. C. L. 498. 470. Charge of rtceiving "lawful lo People v. Misiani, 148 App. money of the state of Tennessee" Div. (N. Y.) 797, 27 N. Y. Cr. Rep. sustained by proof that accused 94, 133 N. Y. Supp. 291; State v. received a bank-note. — Garner v. Packard, 4 Ore. 157. State, 13 Tenn. (5 Yerg.) 160. n This Is the general rule. See, 5 Leeman v. State, 35 Ark. 438, in addition to authorities cited in 37 Am. Rep. 44; Jacobs v. Com., last footnote. State v. Perham, 4 29 Va. (2 Leigh) 709. Ore. 188; SUte v. Dougherty, 4 6 State V. Cansler, 75 N. C. 442. Ore. 200; State v. Ah Sam, 14 Ore. 808 CRIMINAL PROCEDUEE. § 609 in the Sclimitz case,^^ the supreme court of California held that the offense of extortion can not be charged in the language of the statute, notwithstanding the fact that the California statute sets forth all the essential elements of the crime, stating that an indictment under a statute mak- ing it extortion to do an unlawful injury to the person or property of the individual threatened^ must allege how it was proposed to accomplish the injury, and that where the accused were public officers [although the statute does not distinguish between a private individual and a public officer], there must be an allegation as to what was the official capacity of the accused, and also that he had the power to execute the threat.^ ^ § 609. Desckiption or the offense. An indictment or information charging extortion must conform to the gen- eral rules governing indictments and informations re- quiring that the charge of the commission of the crime alleged shall be of such a character and in such language that the defendant will be fully informed of the exact accusation against which he must defend; and will be sufficient where the offense is clearly and distinctly set forth in ordinary and concise language so as to enable a person of common understanding to know what is in- tended, and to enable the court to pronounce judgment upon conviction.^ That is to say, the indictment or infor- mation must be certain in every material allegation or charge ; must contain a definite description of the offense and the facts constituting it;^ must state the office held by 347, 13 Pac. 303; State v. Light, An indictment for posting a 17 Ore. 358, 21 Pac. 132; State v. threatening notice should allege Lee, 17 Ore. 488, 21 Pac. 455. where the notice was posted, with 12 People V. Schmltz, 7 Cal. App. sufficient particularity to enable a 369, 15 L. R. A. (N. S.) 717, 94 Pac. person of common understanding 419. to know what posting was in- 13 Id. tended. — Lowe v. Com., 11 Ky. L. 1 Lee V. State, 16 Ariz. 291, 145 Rep. 810. Pac. 244; Davy v. Baker, 4 Burr. 2 See Seany v. State, 6 Blackf. 2471, 97 Eng. Repr. 295. (Ind.) 403; State v. Packard, 4 §610 EXTORTION. 809 the accused, under color of wHch he committed the crime charged ;* must state the time when* and the place where the crime was committed,® the exact amount extorted,® state whether it was in excess of the lawful fee, or whether no fee was chargeable;'' must specifically set forth the merits of the complaint.* § 610. Allegation- as to the service. Under a statute making it a criminal offense "wilfully and knowingly to charge, take, or receive any fee or compensation, other than that authorized or permitted by law, for any offi- cial service or duty performed" by an officer, an indict- ment or information charging the offense should show for what service or duty the charge was made or the money taken,^ and failing so to show will be insufficient, because under such a statute a simple allegation that Ore. 157; State v. Fields, 8 Tenn. (Mart. & Y.) 137; Garner v. State, 13 Tenn. (5 Yerg.) 160; Cohen v. State, 37 Tex. Crim. Rep. 118, 38 S. W. 1005. Circumstances necessary to con- stitute a complete crime must be stated; and when an act is not criminal, unless done under par- ticular circumstances set out in the statute, the indictment can not describe the offense in the lan- guage of the statute unless the statute is direct and certain as to the particular circumstances set out in such statute. — State v. Pack- ard, 4 Ore. 157. Constable charged with collect- ing more than due on an execu- tion, the indictment or informa- tion should set out the recital in the execution showing the judg- ment on which same was issued, and set out the names of the par- ties to the judgment. — Seany v. State, 6 Blackt (Ind.) 403. "Oppressively sued out execu- tion" being charged against a con- stable, the indictment or informa- tion must set forth all the facts which constitute the oppression complained of. — State v. Fields, 8 Tenn. (Mart. & Y.) 137. 3 See, infra, § 611. 4 Ferkel v. People, 16 111. App. 310; Com. v. Dennie, Thach. C. C. (Mass.) 165; State v. Brown, 12 Minn. 490 (Gil. 393); Halsey v. State, 4 N. J. L. (1 South.) 324; R. r. Roberts, 4 Mod. 101, 87 Eng. Repr. 286. 5 State V. Brown, 12 Minn. 490 (Gil. 393). 6 See, infra, § 613. 7 See, infra, § 613. sOliveira v. State, 45 Ga. 555; Com. V. Brown, 23 Pa. Sup. Ct. 470. 1 State V. Aden, 10 Ind. App. 136, 37 N. E. 731; State v. Couch, 40 Mo. App. 325; State T. Packard, 4 Ore. 157; State v. Perham, 4 Ore. 188. 810 CRIMINAL PROCEDURE. §6]1 the money was wilfully and knowingly charged, taken or received for some "official service or duty performed by such officer" and that the fee or compensation was "other than that authorized or permitted by law" for that service, merely states a conclusion.^ § 611. Aij:.egation as to the office. It being essen- tial to the crime of extortion that the accused be a public officer,^ and that the taking complained of be under the color of an office^ created by the constitution, statute or other adequate authority,^ the indictment or information 2 state V. Packard, 4 Ore. 157. 1 Any person clothed with offi- cial privileges and duties may be made a defendant In an Indictment for extortion. See: GA. — ^White V. State, 56 Ga. 385. IND.— State V. Burton, 3 Ind. 93. KY. — Com. v. Rodes, 45 Ky. (6 B. Mon.) 171. MASS. — Com. V. Bayley, 24 Mass. (7 Pick.) 279. N. J.— Tanner v. Croxall, 17 N. J. L. (2 Har.) 332; State V. Maires, 32 N. J. L. (4 Vr.) 142; Cutter v. State, 33 N. J. L. (4 Vr.) 125. N. C— State v. Mc- Entyre, 25 N. C. (3 Ired. L.) 171. PA. — Com. V. Hogan, 9 Phila. (Pa.) 574. TBNN.— State v. Merritt, 37 Tenn. (5 Sneed) 67. CANADA— R. V. Tisdall, 20 Up. Can. Q. B. 272. BNG.— Adams v. Tenants of Savage, 1 Holt. 179, 90 Eng. Repr. 997; R. V. Burdett, 1 Ld. Raym. 148, 91 Eng. Repr. 996; Troy's Case, 1 Mod. 5, 86 Eng. Repr. 686; R. V. Baines, 6 Mod. 192, 87 Eng. Repr. 946; R. v. Buck, 6 Mod. 306, 87 Eng. Repr. 1046; R. v. Seymour, 7 Mod. 382, 87 Eng. Repr. 1305; Smythe's Case, Palm. 318, 81 Eng. Repr. 1101; Smith v. Mall, 2 Rob. 263; Hescott's Case, 1 Salk. 330, 91 Eng. Repr. 291. 2 Offense analogous to extortion may be committed by an unofficial person falsely pretending to be an official. — Serlested's Case, Latch. 202, 82 Eng. Repr. 346. sHerrington v. State, 103 Ga. 318, 68 Am. St. Rep. 95, 29 S. E. 931; Kirby v. State, 57 N. J. L. 320, 31 Atl. 213; Eliason v. Cole- man, 83 N. C. 235. "Irreconcilable conflict of au- thority upon the proposition as to whether or not it is possible that the doctrine of an officer de facto can be applied to any case with- out presupposing the existence of an office de jure. Much respect- able authority can be produced to the effect that where an office is provided for by an unconstitutional act of the legislature, the incum- bent of such an office, for the sake Oi public policy and the protec- tion of private rights, will be recognized as an officer de jure until the constitutionality of the act has been judicially determined. On the other hand, there is con- siderable, and perhaps a greater weight of authority, directly the reverse." — Herrington v. State, 103 Ga. 318, 68 Am. St. Rep. 95, 29 S. E. 931. See Norton v. Shelby County, 118 W. S. 425, 30 L. Ed. 178, 6 Sup. § 612 EXTORTION. 811 should allege that the accused is a duly constituted ofiS- cer,* and will be suflficient where it designates the office held by the accused, and states that, by color of his office and in his official capacity,^ accused unlawfully took from a named person a specified sum of money or other thing of value which was not his due.® § 612. Allegation as to person and ownership op the MONEY. An indictment or information charging extor- tion may allege the money or other thing of value to have been extorted from the principal, when as a matter of fact it was extorted from his agent.^ When the money was extorted from an officer of the county, which is a body corporate and may own money, it may be alleged that the money was extorted from the county;^ and an indictment for extortion from a firm is sufficient, under the New York statute, where it is alleged that the money was obtained by a wrongful use of fear^ induced by a Ct. Rep. 1121, where the authorl- Ga. 318, 68 Am. St. Rep. 95, 29 S. E. ties pro and con are discussed. 391. MINN. — State v. Brown, 12 County policeman created by the Minn. 490 (Gil. 393). MONT. — commissioners of roads and reve- Territory v. McElroy, 1 Mont 86. nues, without any legislative au- N. J.— Kirby v. State, 57 N. J. 320, thority whatever, is an office not 31 Atl. 213. N. C. — State v. Pritch- in existence even under color of ard, 107 N. C. 921, 12 S. B. 50. legislative enactment, and the per- ORE. — State v. Packard, 4 Ore. son holding such a position is not 157; State v. Perham, 4 Ore. 188. for any purpose whatever an ENG. — R. v. Holland, 5 T. R. 607, officer de facto, and can not be 101 Eng. Repr. 340. charged with the crime of extor- 6 Dean v. State, 9 Ga. App. 303, tion. — Herrington v. State, 103 Ga. 71 S. B. 597. 318, 68 Am. St. Rep. 95, 29 S. E. i Com. v. Bagley, 24 Mass. (7 931. Pick.) 279. 4 Herrington v. State, 103 Ga. 2 State v. Moore, 1 Ind. 548. 318, 68 Am. St. Rep. 95, 29 S. E. s Obtaining money through fear 931; Territory v. McElroy, 1 Mont, or force, said not to be extortion 86. In People v. Barondess, 61 Hun 8 Taking by color of office must (N. Y.) 571, 8 N. Y. Cr. Rep. 234, be alleged. See: ARK.— Seeman 16 N. Y. Supp. 346; reversed, 133 v. State, 35 Ark. 438, 37 Am. Rep. N. Y. 649, 8 N. Y. Or. Rep. 376, 44. GA.— Herrington v. State, 103 31 N. B. 40. 812 CEIMINAL PROCEDUBB. §613 threat to do an unlawful injury to the business of the firm,* of which a named person is a member ; it is not necessary to allege that the partners were put in fear by means of a threat on the part of the accused.^ § 613. Allegation as to fees. At common law, and under the statutes in some of the states, it is unneces- sary to charge the wrongful taking of the money or other thing of value as a fee, or that it was to the officer's own use ;^ but the general rule in this country is that the indictment or information must allege that the fees re- ceived were claimed by the accused in his official capacity, that is, by color of his office.^ No fee allowed by law, and the charge is that of taking money or a thing of value by the accused for his official services, the indictment or information should allege that fees were not allowed by law;^ but where it is alleged that the fee was greater than that allowed by law — no 4 Under New York Penal Code, §§ 552, 553, defining "extortion" as procuring the property of another by means of fear, induced by means of threats to injure his "property," a threat to injure "business" is a threat to Injure property. — People v. Barondess, 133 N. Y. 649, 8 N. Y. Cr. Rep. 376, ?^. N. E. 240, reversing 61 Hun (N. Y.) 571, 8 N. Y. Cr. Rep. 234, 16 N. Y. Supp. 346; People v. Hughes, 64 Hun (N. Y.) 638, 8 N. Y. Cr. Rep. 448, 19 N. Y. Supp. 550; affirmed, 137 N. Y. 29, 9 N. Y. Cr. Rep. 277, 32 N. E. 1105. 5 People V. Lee, 70 Misc. (N. Y.) 446, 25 N. Y. Cr. Rep. 383, 129 N. Y. Supp. 185. 1 Hanley v. State, 125 Wis. 396, 104 N. W. 57. 2 State V. Oden, 10 Ind. App. 136, 9 Am. Cr. Rep. 295, 37 N. E. 731. See: AHK. — Leeman v. State, 35 Ark. 438, 37 Am, Rep. 44. IND.— State V. Moore, 1 Ind. 548; State V. Burton, 3 Ind. 93. MASS.— Runnells v. Fletcher, 15 Mass. 525; Shattuck V. Woods, 18 Mass. 171. N. J.— Lane v. State, 47 N. J. L. 362, 5 Am. Cr. Rep. 215. N. Y.— People V. Whaley, 6 Cow. 661. N. C — State v. Pritchard, 107 N. C. 921, 12 S. E. 50. TENN.— State V. Critchett, 69 Tenn. (1 Lea) 371, 3 Am. Cr. Rep. 83. TEX. — Hays v. Stewart, 8 Tex. 358. 3 State V. Coggswell, 3 Blackf. (Ind.) 54, 23 Am. Dec. 379; Hal- sey V. State, 4 N. J. L. (1 South.) 324; State v. Malres, 32 N. J. L. (4 Vr.) 142; Loftus v. State, (N. J.) 19 Atl. 183; affirmed, 52 N. J. L. 223, 20 Atl. 320; State v. Packard, 4 Ore. 157; Poole v. State, 23 Tex. App. 685, 3 S. W. 476. §613 EXTORTION. 813 fee whatever being allowed by law — ^it need not be alleged bow much greater.* Fees allowed hy law to officer, the indictment or infor- mation must allege that accused was authorized by law to charge fees for his official services,® and must also allege what the fee exacted was in excess of the fee al- lowed him by law;" the mere statement that accused ex- acted and received fees more than allowed him by law is not sufficient, for that fact must be made to appear with explicitness.'' , Nothing due as fees, that fact must be distinctly averred;* and if the charge is that accused took more than was due, the exact amount which was due must be alleged,® and also the amount collected.^" i 4 Leeman v. State, 35 Ark. 438, 37 Am. Rep. 44. 5 Ferkel v. People, 16 111. App. 310. 6 State V. Coggswell, 3 Blackf. (Ind.) 54, 23 Am. Dec 379; Poole V. State, 22 Tex. App. 685, 3 S. W. 476. Charging thirty-two cents to have been taken ©xtortionately, but admitting in a later portion of the indictment that sixteen cents were due, the indictment is suffi- cient. — Emory v. State, 6 Blackf. (Ind.) 106. 7 State V. Maires, 33 N. J. L. (4 Vr.) 142. "A greater fee than allowed by law" being charged to have been taken unlawfully, and wilfully and extorsively, without additional al- legation as to the amount of the fee to which the officer was enti- tled or whether no fee was al- lowed by law, was held sufficient In Leeman v. State, 35 Ark. 438, 37 Am. Rep. 44. s State V. Coggswell, 3 Blackf. (Ind.) 54, 23 Am. Dec. 379; Hal- sey V. State, 4 N. J. I* (1 South.) 324; State v. Maires, 33 N. J. L. (4 Vr.) 142; Poole v. State, 22, Tex. App. 685, 3 S. W. 476; Lake's Case, 3 Leon. 268, 74 Eng. Repr. 677; R. V. Tracy, 6 Mod. 30, 87 Eng. Repr. 795. 9 State V. Coggswell, 3 Blackf. (Ind.) 54, 23 Am. Dec. 379; Brack- enridge v. State, 27 Tex. App. 513, 4 L. R. A. 360, 11 S. W. 630; Lake's Case, 3 Leon. 268, 74 Eng. Repr. 677. 10 See State v. Coggswell, 3 Blackf. (Ind.) 54, 23 Am. Dec. 379; ■ State V. Brown, 12 Minn. 490 (Gil. 393); Halsey v. State, 4 N. J. L. (1 South.) 324; State v. Maires, 33 N. J. L. (4 Vr.) 142; Lake's Case, 3 Leon. 268, 74 Eng. Repr. 677; R. V. Tracy, 6 Mod. 30, 87 Eng. Repr. 795; State v. Pritchard, 107 N. C. 921, 12 S. E. 50. 814 CRIMINAL PROCEDURE. §§ 614, 615 § 614. Allegation as to knowledge. At common law it was unnecessary to aver that the offense was com- mitted knowingly by the accused, and this is the general rule in this country, in the absence of special statutory provisions.^ Where knowledge is made a statutory in- gredient of the offense, the indictment or information must allege that the crime charged was committed know- ingly by the accused.* Thus, under the federal statute* making it an offense for an officer to knowingly* demand other or greater sums than are authorized by law, or to receive any fee, compensation, or reward, except as by law prescribed, for the performance of any duty, the in- dictment must charge that the accused knowingly did the act; to charge that he "wilfully and corruptly," under color of his office, did demand, take and receive, is insuffi- cient.® § 615. Allegation as to intent. At common law an evil or corrupt intent on the part of the official, charged with taking illegal fees, was necessary to constitute the act of extortion,^ and the general rule is that it is also an essential element under statute,^ for which reason an 1 state V. Jones, 71 Miss. 872, States v. Hlghleyman, 22 Int. Rev. 15 So. 237. Rec. 138, 8 Chi. Leg. News 244, 2 Smith V. Ling, 68 Cal. 324, 9 Fed. Cas. No. 15361. Pac. 171; United States v. Will- b United States v. Williams, 76 lams, 76 Fed. 223. Fed. 223. 3 U. S. Rev. Stats., § 3169, subd. i ALA.— Cleaveland v. State, 34 2; 3 Fed. Stats. Ann. (1st ed.), Ala. 254. ARK. — ^Leeman v. State, p. 574; 3 Fed. Stats. Ann. (2d ed.), 35 Ark. 438, 37 Am. Rep. 44. p. 991. NEB.— Cobbey v. Burks, 11 Neb. 4 "Knowingly" means something 157, 38 Am. Rep. 364, 8 N. W. 386. more than that which is implied N. C. — State v. Prltchard, 107 In the legal presumption, which N. C. 921, 12 S. E. 50. PA. — Res- the court Indulges, that every man publlca v. Hannum, 1 Yeates (Pa.) must know the law; it Involves 71. FED. — United States v. Hlgh- the element of corruptly Intend- leyman, 22 Int. Rev. Rec. 138, 8 ing, and it must be found at the Chi. Leg. News 244, Fed. Cas. No. trial that accused knew he was 15361. violating the law at the time of 2 ALA. — Cleaveland v. State, 34 the act complained of. — United Ala. 254; Collier v. State, 55 Ala. §G15 EXTORTION. 815 indictment or information charging the crime of extor- tion must allege the existence of such an intent,^ although it seems that such intent need not be proved on the trial.* The corrupt intent being an ingredient of the offense under the statute, it must be averred f but such corrupt intent is sufficiently averred by alleging that the accused " extorsively, " ® or "wilfully and knowingly,"'' did the act complained of, it not being necessary to allege that the act was "corruptly done."* Under the California statute,^ it has been said, the in- dictment must allege that the specific injury threatened in an effort to extort, or in extorting, the money charged to have been taken, was an unlawful injury.^" In this case the injury set out in the indictment was, that unless the persons from whom the money was extorted complied with the demand made, they could no longer continue in business — ^because they could not procure the necessary 125. N. J. — State v. Cutter, 36 N. J. L. (7 Vr.) 125. N. C— State V. Pritchard, 107 N. C. 921, 12 S. E. 50. ENG. — Bowman v. Blythe, 7 El. & B. 26, 90 Eng. C. L. 26. 3 Leeman v. State, 35 Ark. 438, 37 Am. Rep. 44; Ixjftns v. State, (N. J.) 19 Atl. 185; aflBrmed, 52 N. J. L. 223, 20 Atl. 320; State v. Cansler, 75 N. C. 442; Mann v. State, 47 Ohio St. 556, 11 L. R. A. 656, 26 N. E. 226. 4 State V. Coleman, 99 Minn. 487, 116 Am. St. Rep. 441, 110 N. W. 5. Wrongful intent on the part of the accused Is the gist of the offense charged, and, In Iowa, It is held that Intention can not be pre- sumed, but must be proved. — State V. Debolt, 104 Iowa 105, 73 N. W. 499. — In Minnesota, the statute being different from the Iowa stat- ute. It is not necessary to prove the intent as an independent fact: the intent Is presumed. — State v. Coleman, 99 Minn. 489, 116 Am. St. Rep. 441, 110 N. W. 5. 5 Leeman v. State, 35 Ark. 438, 37 Am. Rep. 44; Trlplett v. Mun- ter, 50 Cal. 644; Loftus v. State, (N. J.) 19 Atl. 183; affirmed, 53 N. J. L. 223, 20 Atl. 320. 6 Leeman v. State, 35 Ark. 438, 37 Am. Rep. 44; Loftus v. State, (N. J.) 19 Atl. 183; affirmed, 53 N. J. L. 223, 20 Atl. 320. See, also, supra, § 608, footnotes 5 et seq. T Ridenhour v. State, 75 Ga. 382. 8 R. V. Tisdale, 20 Up. Can. Q. B. 272. 9 Kerr's Cyc. Cal. Pen. Code, § 519.' 10 People V. Schmltz,!7 Cal. App. 330, 94 Pac. 407; rehearing denied by Supreme Court, 7 Cal. App. 369, 15 L. R. A. (N. S.) 717, 94 Pac. 419. 816 CBIMINAL PEOCEDUEE. §§616,617 license reqtiired to conduct said business — but the court did not consider this an unlawful injury. ^^ The soundness of this decision has often been questioned.^^ § 616. Attempt to commit extoetion. In those cases in which the charge is an attempt to commit the crime of extortion, the indictment or information should set out all the allegations requisite to charge the offense as re- quired for the completed crime ;^ and in charging the attempt, the essentials are (1) an accusation in plain lan- guage alleging the crime charged, and (2) a plain and concise statement setting forth how, or in what manner, the accused is charged to have committed such offense.^ Under the rule heretofore given^ the crime of an attempt to commit extortion may be charged in the language of the statute.* § 617. Joinder or causes. In an indictment or infor- mation charging extortion, a count ought to charge a sin- gle offense only, because every act of extortion from any particular person, or from different persons, whether at the same time or at a different time, is a separate and distinct offense, and each of such offenses requires a separate and distinct punishment ; consequently, charging the accused, in one count, with extorting divers sums from divers persons in excess of the legal rate, is bad.^ Where there are several offenses against the same person 11 Id. with, intent to wrongfully obtain 12 See, supra, § 608. property from him with his con- 1 See, supra, §§ 609 et seq. sent, which was induced by a 2 Act set forth may be some one wrongful use of fear. — People v. of the kinds of threats declared Vldaver, 60 Misc. Rep. 1, 22 N. Y. by law to be unlawful. — People v. Cr. Rep. 434, 112 N. Y. Supp. 606. Vidaver, 60 Misc. Rep. 1, 22 N. Y. 3 See, supra, § 608, footnotes 10 Cr. Rep. 434, 112 N. Y. Supp. 606. et seq., and text going therewith. An unlawful threat charged. Its 4 People v. Misiani, 148 App. unlawful character must appear; Div. (N. Y.) 797, 27 N. Y. Cr. Rep. that it emanated from the defen- 94, 133 N. Y. Supp. 291. dant and was addressed to the i See R. v. Roberts, Carth. 226, prosecutor, and that it was made 90 Eng. Repr. 735. §618 EXTORTION. 817 they should each be particularly and distinctly laid in separate counts;* and where a series of offenses of ex- tortion extending over a space of time within the statute of limitations is charged, and these acts affect various persons, it seems that the various extorsive acts may be joined in the same indictment, being each set out in a separate count.^ An indictment is not duplicitous, it has been said, where it charges but one offense, although there are four counts, each of which counts is drawn under a separate subdi- vision of a single section of the statute.* § 618. Joinder of defendants. Two or more persons may be jointly indicted on a charge of extortion.^ Thus, it has been said that two persons may be indicted jointly for extortion where no fee was due, because both are principals, there being no accessories in such a crime, he that is assisting being as guilty as the extortioner;* and an indictment against three persons, averring that they, colore oflSciorum suorum, took a specified amount of money, is good, for they might take so much in gross, and afterward divide it amongst them, of which the party ag- grieved would have no notice.^ 2R. V. Roberts, 4 Mod. 101, 87 Eng. Repr. 286. 3 See R. V. Douglas, 13 Ad. & E. N. S. (13 Q. B.) 42, 66 Eng. C. L. 41. 4 Ex parte Joyce, 23 Int. Rev. Rec. 297, 25 Pitts. L. J. 17, Fed. Cas. No. 7556. 1 R. V. Atkinson, 2 Ld. Raym. 1248, 92 Eng. Repr. 322, 1 Salk. 382, 91 Eng. Repr. 333. 2 R. V. Loggen, 1 Str. 73, 93 Eng. Repr. 392. 3 Lake's Case, 3 Leon. 268, 74 Eng. Repr. 677. I. Crim. Proc. — 52 CHAPTER XLIII. INDICTMENT SPECIFIC CRIMES. False Imprisonment. § 619. Form and sufficiency of indictment. § 619. FOEM AND SUFFICIENCY OF INDICTMENT.^ At COm- mon law'' and under the statute,* alike, an indictment or information charging false imprisonment must allege that the act was without legality or authority of law, and the failure to so allege is not cured by the conclusion stating it to be "contrary to the form of the statute in such cases made and provided."* The statute under which the indictment or information is drawn should be followed in every essential detail.® An information 1 As to forms of indictment, see Forms Noa. 934-937. 2Redfleld v. State, 24 Tex. 133; Smith V. State, 63 Wis. 453, 23 N. W. 879. An information charging that the defendants "with force and arms did make an assault in and upon one A, then and there unlaw- fully and Injuriously and against the will of her, the said A, and without any legal warrant, au- thority, or reasonahle or justifi- able cause whatever, did imprison, and detain so imprisoned, her, the said A, there for the space of one hour next following," etc., suiBl- ciently charges the offense of false imprisonment at common law. — Davis V. State, 72 Wis. 54, 38 N. W. 722. 3 See Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253; Bar- ber V. State, 13 Fla. 675; Water- man V. State, 13 Fla. 683; United States V. Lapoint, 1 Morr. (Iowa) 146; Redfield v. State, 22 Tex. 133; Herring v. State, 3 Tex. App. 108. "Unlawfully and feloniously im- prisoned" implies that the act was done without sufficient legal au- thority, and is good without the latter allegation. — United States V. Lapoint, 1 Morr. (Iowa) 146. 4 Redfield v. State, 24 Tex. 133. 5 Ross V. State, 15 Fla. 55, in which it was said that a charge that one was forcibly imprisoned without lawful authority and against his will, does not state an offense under a statute (Fla. Act, Aug. 6, 1868, ch. 3, § 43) requiring the acts charged to have been committed "with intent to cause him to be secretly confined or im- prisoned," etc. (818) § 619 FALSE IMPRISONMENT. 819 charging the offense under the common law may be good as to form under the statute.® Intent with which the accused acted in falsely impris- oning another person must be alleged, under a statute providing that the act must have been committed "with intent to cause him," etc., or it will not state an offense under such statute.'' Mode or manner in which the detention was effected must be stated, e. g., by actual violence, assault, threats, and the like, but the indictment need not further particu- larize it.* Joinder of charges of assault and false imprisonment in the same count will not render the indictment or in- formation bad for duplicity;* under such indictment the accused may be convicted of the false imprisonment and acquitted on the charge of assault," or vice versa. 6 Davies v. State, 72 Wis. 54, 38 9 Francisco v. State, 24 N. J. L. N. W. 722. (4 Zab.) 30. 7 Ross V. State, 15 Fla. 55. lo Francisco v. State, 24 N. J. L. sManer t. State, 8 Tex. App, (4 Zab.) 30; Davies v. State, 72 361. Wis. 54, 38 N. W. 722. CHAPTER XLIV. INDICTliJENT SPECIFIC CKIMES. False Personation, § 620. Form and sufficiency of indictment. § 621. Allegation as to relationship between parties. § 622. Allegations as to property. § 623. Impersonating another — ^Acknowledgments, judicial pro- ceedings. § 624. Impersonating an officer. § 620. FoHM AND surEioiENCY OF INDICTMENT.^ Ah in- dictment or information charging the crime of false per- sonation in any of its phases must set forth all the facts constituting the crime sought to be charged, in plain and concise language with sufficient particularity to designate the person charged/ and to enable the accused to know from the language of the instrument what he is expected to meet on the trial,^ and with such certainty as to time, place, intent, and means used as will enable him to plead an acquittal or a conviction thereon in bar of another prosecution for the same offense.* The indictment or in- formation must conform strictly to the terms of the stat- ute under which the instrument is drawn and the prose- cution had.^ The name of the person falsely personated 1 As to forms of indictment for 119 Cal. 73, 51 Pac. 19. TEX.— false personation in any of its Martin v. State, 1 Tex. App. 586. phases, see Forms Nos. 938-944, Ambiguous indictment or Infor- 1S83-1887. matlon, susceptible of widely dif- 2 See State v. Toney, 81 Ohio St. ferent constructions, renders it un- 130, 18 Ann. Cas. 395, 90 N. B. 142. satisfactory in the eyes of the 3 Klrtley v. State, 38 Ark. 543 ; law.— People v. Knox, 119 Cal. 73, State V. Toney, 81 Ohio St. 130, 51 Pac. 19. 18 Ann. Cas. 395, 90 N. E. 142; 5 See: ARK.— Kirtley v. State, Martin v. State, 1 Tex. App. 586. 38 Ark. 543. CAL. — People v. 4 ARK. — Kirtley v. State, 38 Knox, 119 Cal. 73, 51 Pac. 19. Ark. 543. CAL.— People v. Knox, FLA.— Jones v. State, 22 Fla. .'5;12; (820) § 621 FALSE PEUSONATION. 821 must be given,® but his residence or whereabouts need not be alleged/ Duplicity may be charged against an indictment or in- formation which charges, in one count, two or more of- fenses denounced by the statute, e. g., false personation of an ofl&cer with intent to extort money, and extorting of money not under the guise of a claim due.* §*621. Allegation as to eelationship between parties. An indictment or information charging accused with falsely representing himself to A to be B, and therebj'^, through such false representation as to his personality, obtaining money or property from A, should allege the relationship existing between A and B so as to show upon what ground B had a right to demand and receive money or property from A, and unless such a relation- ship is made to appear as will confer such right, the indictment or information will be insufficient;^ but it seems that a consummation of the fraud, with con- sequent injury to the party defrauded, is not essential to complete the offense.^ Goodson V. State, 29 Fla. 511, 30 N. Y. 470, 1 Cow. Cr. Rep. 387; Am. St. Rep. 135, 10 So. 738. People v. Stetson, 4 Barb. (N. Y.) MASS.— Com. V. Wolcott, 64 Mass. 151. (10 Cush.) 61. MICH. — ^People v. 2 See United States v. Barnow, Cronin, 80 Mich. 646, 45 N. W. 239 U. S. 73, 60 L. Ed. 155, 36 Sup. 479. MO. — State v. Miller, 3 Mo. Ct. Rep. 19, reversing 221 Fed. 140, App. 584. N. Y. — McCord v. Peo- In -which the court held that con- pie, 46 N. Y. 470, 1 Cow. Cr. Rep. summation of the fraud, with 387; People v. Stetson, 4 Barb, consequent injury to the party de- 151. TENN. — Edgar v. State, 96 frauded, is not essential to com- Tenn. 690, 36 S. W. 379. ENG. — plete the crime denounced by the R. V. Bent, 2 Car. & K. 179, 61 Federal Criminal Code, § 32 (3 Eng. C. L. 179. Kerr's Whart. Crim. Law, p. 2437), 6 People V. Knox, 16 Cal. 73, 51 providing for the punishment of Pac. 19. any one who, with intent to de- 7 Freeman v. State, 20 Tex. App. fraud, falsely assumes or pretends 558. to be an ofBcer or employee of, 8 United States v. Taylor, 108 and acting under the authority of. Fed. 621. the United States, or of any de- 1 Jones V. State, 22 Fla. 532. partment or ofBcer of the govern- See, also, McCord v. People, 46 ment thereof. 822 CRIMINAL PROCEDUHE. §§ 622, 623 § 622. Allegations as to peopebtt. In those cases in which the statute makes it larceny for one person to obtain property from another by falsely personating a third person, the indictment or information charging the crime must describe the property obtained by means of such false personation with the same certainty and particularity required in an indictment charging lar- ceny/ and must allege that the property thus fraudu- lently obtained to be delivered to the accused was in- tended by the party defrauded to be delivered to the party falsely personated;* and should further allege that the property was received by the accused with intent to convert it to his own use.^ Ownership of the property obtained by means of false personation should be laid in the indictment or informa- tion as in the person who is entitled to maintain a civil action of trespass therefor;* but in some states it is held that an erroneous allegation as to the ownership of the property is immaterial.^ Value of property obtained by false personation need not be alleged, in the absence of statutory provisions re- quiring the value to be given.* § 623. Impersonating another — ^Acknowledgments, JUDICIAL PROCEEDINGS. An indictment or information charging that accused falsely personated another and authenticated a conveyance for registration, must set out the falsely authenticated instrument, or give a reason for not so doing; it should also describe the property affected, aver the purpose of the acknowledgment, and the authority of the accused to make such acknowledg- 1 See Treadway v. State, 37 Ark. 4 Jones v. State, 22 Fla. 532. 443; Smith v. State, 33 Ind. 159; ^f,^^ ^ Llle, 140 Ky. 558, 131 Martin v. State, 1 Tex. 586. g ^ 39^. ^^^ ^ Vaughn, 140 2 Goodson V. State 29 Fla 511. ^3^ 30 Am. St. Rep. 135, 10 So. 738. 3 Jones V. State, 22 Fla. 632; « See People v. Stetson, 4 Barb. Goodson V. State, 29 Fla. 511, 30 (N. Y.) 151, Am. St. Rep. 135, 10 So. 738. § 624 FALSE PERSONATION. 823 ment should be negatived* in sucli an indictment. It is not necessary to allege the residence or whereabouts of the person falsely impersonated.^ Where the statute provides that any person who shall personate another in any legal proceeding, and shall in his assumed character do any act whereby the interest of the party personated is affected, shall be guilty of a criminal offense, an indictment or information charging the offense of falsely personating another in a legal pro- ceeding whereby the latter 's rights or interests are af- fected, is sufficient when it alleges the fact of the false personation in a pending suit in a court of competent jurisdiction, and the facts connected therewith, without stating how the rights and interests of the person falsely personated might be thereby affected.* § 624. Impeksonating an opficee. Under a statute making it an offense to falsely assume to be and to act as an officer, an indictment or information charging ac- cused with the commission of that offense must state that accused took it upon himself to act as such officer, it not being sufficient to simply allege that he assumed to be such an officer ;* but the indictment or information must clearly aver that the accused was not the officer he represented himself to be, and that he did not possess the authority of that office.^ The name of the officer im- personated need not be stated;* and the fact that an indictment or information alleges a false personation of an officer or employee, which officer and employee has no 1 Martjn v. State, 1 Tex. App. 2 Com. v. Wolfford, 136 Ky. 239, 586. 124 S. W. 288. 2 Freeman v. State, 20 Tex. 3 Butts v. State, 47 Tex. Cr. Rep. App. 558. „ ^ „„ ^ „„. 494, 84 S. W. 586; United States v. 3 Edgar v. State, 96 Tenn. 690, 36 S. W. 379. Brown, 119 Fed. 482. 1 People V. Cronin, 80 Mich. 6.46, Compare: People v. Knox, 119 45 N. W. 497. Cal. 73, 51 Pac. 19. 824 CRIMINAL PROCEDURE. §624 existence, in fact, is not demurrable, as not stating an offense.* 4 United States v. Barnow, 239 U. S. 74, 60 L. Ed. 155, 36 Sup. Ct Rep. 19, reversing 221 Fed. 140. Reason for the rule: Mr. Jus- tice Pitney, in delivering the opin- ion in the above case, said: "One who falsely assumes or pretends to hold an office that has a de jure existence is admittedly within the meaning of the section (Federal Criminal Code, § 32, 3 Kerr's Whart. Crim. Law, p. 2437); that is, where the assumption or pre- tense is false in part but contains a modicum of truth, the statute is violated. Why should it be deemed less an offense where the assump- tion or pretense is entirely false, as where the very office or em- ployment to which the accused pretends title has no legal or actual existence? . . . There- fore, it seems to us the statute is to be Interpreted according to its plain language as prohibiting any false assumption or pretense of office or employment under the authority of the United States, or any department or office of the government, if done with an intent to defraud, and accompanied with any of the specified acts done in the pretended character." CHAPTEE XLV. INDICTMENT SPECIFIC OEIMES. False Pretenses. § 625. Form and sufficiency of indictment — In general. § 626. Language of the statute. § 627. Negation of pretenses. § 628. Surplusage. § 629. Necessary averments — False pretenses and knowledge thereof. § 630. — — Intent and design. § 631. ' ' Feloniously. ' ' § 632.' Parties — By whom made. § 633. To whom made and who defrauded. § 634. The false pretenses, false tokens, etc. — In general. § 635. Description of the particular pretenses. § 636. Confidence game and bunko steering. § 637. Description of the false token. § 638. Representations as to financial condition. § 639. Relation to past events or existing state of facts. § 640. Reliance on pretenses. § 641. Representations as inducing cause. § 642. Damage to or loss by prosecutor. § 643. Property, etc., obtained — Description of. § 644. Money, bank-bills, etc. § 645. "Written instruments. § 646. Ownership of money or property. § 647. Value of money or property. § 648. False pretense of being an ofSeer. § 649. Presenting false claim. § 650. Joinder of defendants. § 651. Joinder of offenses. § 652. Joinder of counts. § 625, FOEM AND SUFFICIENCY OF INDICTMENT^ In GEN- EEAL. An indictment or information charging obtaining 1 As to forms of indictment for false pretenses, see Forms Nos. 825, 947-977. (825) 826 CRIMINAL PROCEDURE. §625 money or property by false pretenses or false tokens must allege, with certainty and precision, every essential fact and circumstance necessary to constitute the completed offense, and necessary to be proved in order to convict the accused,^ stating all the facts and circumstances with such particularity as to clearly designate the person charged and apprise him of what he is expected to meet and will be required to answer,^ and such as will enable 2 ALA. — Tennyson v. State, 97 Ala. 78, 12 So. 391; Cheshire v. State, 8. Ala. App. 253, 62 So. 994. CAL. — People v. Emmons, 13 Cal. App. 487, 110 Pac. 151. CONN.— State V. Jackson, 38 Conn. 229. GA.— Jones v. State, 93 Ga. 547. IND. — Keller v. State, 51 Ind. Ill, 1 Am. Cr. Rep. 211; Cruthers v. State, 161 Ind. 139, 67 N. E. 930. KAN. — State v. Ashe, 44 Kan. 84, 24 Pac. 72; State v. Richmond, 96 Kan. 600, 152 Pac. 644. KY.— Glackan v. Com., 60 Ky. (3 Mete.) 232; Com. v. Whitney, 8 Ky. L. Rep. 776, 3 S. W. 533; Hefner v. Com., 18 Ky. L. Rep. 423, 36 S. W. 549; Com. v. Lacey, 158 Ky. 584, 165 S. W. 971. MD.— State v. Bliz- zard, 70 Md. 385, 14 Am. St. Rep. 366, 17 Atl. 270. MO.— Asher v. State, 106 Mo. 160, 17 S. W. 306. MONT.— State v. Phillips, 36 Mont. 112, 92 Pac. 299. N. H.— State v. Falconer, 59 N. H. 535. N. J.— State V. Murphy, 68 N. J. L. 235, 15 Am. Cr. Rep. 236, 52 Atl. 279. N. Y. — People V. Stone, 9 Wend. 182, 191; People v. Chapman, 4 Park. Cr. Rep. 56; People v. Win- ner, 80 Hun 130, 9 N. Y. Cr. Rep. 288, 30 N. Y. Supp. 54; People v. Webster, 17 Misc. 410, 11 N. Y. Cr. Rep. 340, 40 N. Y. Supp. 1135. N. C. — State v. Carlson, 89 S. E. 30. OHIO— EUara v. State, 25 Ohio St. 385; State v. Toney, 81 Ohio St. 130, 18 Ann. Cas. 395, 90 N. E. 142; Horton v. State, 85 Ohio St. 13, Ann. Cas. 1913B, 90, 39 L. R. A. (N. S.) 423, 96 N. E. 797. PA. — Com. v. Adley, 1 Pears. 62. TBX. — Maranda v. State, 44 Tex. 442; Hirsch v. State, 1 Tex. App. 393; White v. State, 3 Tex. App. 605. UTAH— State V. Swan, 31 Utah 336, 88 Pac. 12. ENG.— R. v. Martin, 8 Ad. & E. 481, 35 Bng. C. L. 691; R. v. Home, 2 Cowp. 672, 682, 98 Bng. Repr. 1300, 1306; R. v. Mason, 2 T. R. 581, 100 Eng. Repr. 312. An Information chargiijg the ac- cused with drawing a check, when he had no funds, with intent to defraud "Lesser Bros. Co., a cor- poration," the check being payable to Lesser Bros. Co., is sufficiently definite to enable a person of com- mon understanding to know with what he was charged. — People v. Russell, 156 Cal. 450, 105 Pac. 416. 3 State V. Blizzard, 70 Md. 385, 14 Am. St. Rep. 366, 17 Atl. 270; State V. Barbae, 136 Mo. 440, 37 S. W. 1119; State v. Henn, 39 Minn. 464, 40 N. W. 564; People V. Winner, 80 Hun 130, 9 N. Y. Cr. Rep. 288, 30. N. Y. Supp. 54; State V. Toney, 81 Ohio St. 130, 18 Ann. Cas. 395, 90 N. B. 142; State V. Hanscom, 28 Ore. 427, 43 Pac. 167. §625 PAI>SE PEETElSrSES. 827 the court to determine whether the facts alleged, upon the face of the indictment or information, are sufficient to constitute the crime sought to be charged,* and will protect the accused against further prosecution for the same alleged offense,^ and be sufficiently certain to en- able the court to determine what evidence is admissible.® In those cases in which the representations consist of a series of interdependent statements, the allegation of fal- sity must not be negatively pregnant J The court will not indulge in any presumptions to aid the indictment or in- formation;^ that is to say, ambiguity or uncertainty in the language used can not be supplemented by intend- ment, or by argument, or by implication.* False pretenses must be shown,^° that they were made 4 People V. Emmons, 13 Cal. App. 487, 110 Pac. 151; People v. Canfield, 28 Cal. App. 792, 154 Pac. 33; State v. Blizzard, 70 Md. 385, 14 Am. St. Rep. 366, 17 Atl. 270; State V. WoMmouth, (W. Va.) 89 S. E. 7. 5 State V. Blizzard, 70 Md. 385, 14 Am. St. Rep. 366, 17 Atl. 270; State V. Carlson, (N. C.) 89 S. E. 30; State v. Wohlmouth, (W. Va.) 89 S. E. 7. 6 Horton v. State, 85 Ohio St. 13, Ann. Cas. 1913B, 90, 39 L. R. A. (N. S.) 423; 96 N. E. 797. 7 State V. Murphy, 68 N. J. L. 235, 15 Am. Cr. Rep. 236, 52 Atl. 279. 8 People V. Canfield, 28 Cal. App. 792, 154 Pac. 33 ; Current v. People, 60 Colo. 362, 153 Pac. 684. Neither will the court import any language into the indictment to sustain objections thereto urged by counsel. — United States v. Brown, 119 Fed. 482. 9 Taylor v. Territory, 2 Okla. Cr. 1, 99 Pac. 628. 10 Borrowing money, charged to have been procured on the repre- sentation by the accused that his brother was to arrive with money, coupled with a promise to use it in payment of the sum borrowed, held to amount to a pretense that accused had the money and that the indictment was sufficient to state that the money was procured by false pretenses. — State v. Fooks, 65 Iowa 452, 21 N. W. 773. False pretenses not set out in the indictment or information upon which the prosecution In- tends to rely, demurrer held not to lie for this failure to set out the false pretenses. — State v. Blizzard, 70 Md. 385, 14 Am. St. Rep. 366, 17 Atl. 270. See, however, infra, § 627. Information charging accused, in the city of La Crosse, falsely pretended to one A that he was a contractor engaged in the business of teaming at Stevens Point and desired to employ teamsters to work for him at that place; that 828 CRIMINAL PKOCEDUEE. §625 or authorized by the accused, that they were false and fraudulent, and that they were relied upon by and de- he made certain other false pre- tenses, specifically set out in the information, to A, to satisfy the latter of the truth of such state- ments, and proposed to employ A to go to Stevens Point and work for him as a teamster; that there- upon A engaged to do so, and accused then falsely pretended that he had not sufficient money to pay A's railroad fare to Stevens Point, and desired A to advance a sufficient amount to purchase the necessary railroad tickets, agree- ing to return the money when A should reach Stevens Point; that thereupon A advanced the sum of eight dollars for that purpose; the information specifically alleging that each and all of such pre- tenses were false, to the knowl- edge of the accused, and were so made with intent to defraud; hut that A believed them to he true and advanced the money on the faith of them, — held to sufficiently charge the obtaining of money under false pretenses. — State v. Gross, 62 Wis. 41, 21 N. W. 802. Consent to entry of judgment by city in favor of accused and against it in an action then pend- ing charged to have been procured by false and fraudulent represen- tations, and alleging the payment thereafter of a sum of money by the city in satisfaction of said judgment, there being no allega- tion that, after the judgment was rendered, any false pretenses were used to obtain the money due upon it, does not state an indictable offense under the statute, because no indictment will lie against one for obtaining by such means what is justly due him, there being no legal injury to the party so pay- ing, which In law he is bound to pay. — Com. v. Harkins, 128 Mass. 79. See Com. v. McDuffy, 126 Mass. 467; People v. Thomas, 3 Hill (N. Y.) 169; R. v. Williams, 7 Car. & P. 354, 32 Eng. C. L. 653. Procuring payment of just debt already due, charged to have been procured by false pretenses, does not state an indictable offense. — State V. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100; State v. Williams, 68 W. Va. 86, 32 L. R. A. (N. S.) 420, 69 S. E. 474. Compare: Com. v. Leisy, 1 Pa. Co. Ct. 50. Procuring satisfaction of indebt- edness to another charged to have been done by false pretense, will not be sufficient under the statute; money must have been actually, and not merely Impliedly or con- structively obtained, and must have come into accused's posses- sion. — Jamison v. State, 37 Ark. 445, 40 Am. Rep. 103. Promise to perform some act in the future does not constitute a false pretense, and an indictment or information alleging that the accused procured his promissory note to be indorsed by the prose- cutor, and alleging the false pre- tense charged to have consisted in the accused representing to the prosecutor that he would use the note so indorsed to take up and cancel another note of the same amount then about maturing, upon which latter note the prosecutor was liable as indorser, and for no §625 FALSE PEETENSES. 829 ceived the person to whom they were made. The money or property obtained by the accused must also be stated.^' Venue must be laid properly by stating the place where the false representations were made and the money or property obtained, in order to confer on the court jur- isdiction ;^2 but where each division of a court has juris- diction over the whole district, there need be no allega- tion that the offense was committed within the particular division of the court in which the indictment is found or the information returned.^* Time when the false pretenses were made, or false tokens used, should be set out in order to show that the offense charged occurred within the limitation of the statute. Conclusion of an indictment or information charging obtaining money or property by false pretenses, being for a statutory offense, should conclude "contrary to the other purpose, charging that ac- cused, instead of using the note tlius indorsed for this purpose, as he pretended he would, used the same for his own private purpose, was held not to set out an indict- able false pretense under the stat- ute. — Com. V. Moore, 99 Pa. St. 570, 4 Am. Cr. Rep. 230. See State V. Moore, 15 Iowa 412; R. v. Eagle- ton, Dears. C. C. 515. — Coupling future promise with a false pretense does not relieve the false pretense of its criminal character. — State v. Briggs, 74 Kan. 377, 10 Ann. Gas. 904, 7 L. R. A. (N. S.) 278, S6 Pac. 447. Relation of the false pretenses, as an inducing cause, to the ob- taining of the money or property, must be averred. — State v. Miller, 153 Ind. 229, 15 Am. Cr. Rep. 231, 54 N. E. 808. Swindling by means of false pre- tenses, charged in an indictment, alleging acts on the part of the accused that constitute theft, does not make the indictment bad for the swindling. — Sims v. State, 21 Tex. App. 649, 6 Am. Cr. Rep. 253. 11 State V. Neimeier, 66 Iowa 634, 24 N. W. 247; State v. Phil- brick, 31 Me. 401; Parker v. Arm- strong, 55 Mich. 176, 20 N. W. 892; State V. Tomlinson, 29 N. J. L. (5 Dutch.) 13; State v. Mikle, 94 N. C. 843; Com. v. Bracken, 14 Phila. (Pa.) 342; Mathena v. State. 15 Tex. App. 473. 12 Connor v. State, 29 Fla. 455, 30 Am. St. Rep. 126, 10 So. 891; State v. Bacon, 7 Vt. 219. 13 State V. Withee, 87 Me. 462, S2 Atl. 1013; Griggs v. United States, 85 0. C. A. 596, 158 Fed. 572. 830 CEIMINAL PROCEDURE. §626 form of the statute," or in other similar words required by the particular statute under which drawn.^* §626. ■Language of the statute. An indictment or information charging obtaining money or property by false pretenses or the use of false tokens is governed by the general rule of law^ which permits the allegation to be made in the language of the statute,^ or in words of equivalent import,^ it not being necessary to strictly fol- low the language of the statute in describing the offense ;* and the fact that the indictment or information describes the offense with more particularity than it is described in the statute will not affect the validity of the instru- ment.^ But where the statute creating the offense is in 14 See R. T. Walker, 10 Up. Can. Q. B. 465. 1 See, supra, § 269. 2 ALA. — Cowles v. State, 50 Ala. 454; Clark v. State, 14 Ala. App. 633, 72 So. 291. CAL.— People v. Frigerio, 107 Gal. 151, 40 Pac. 107; People V. Eddards, 25 >Cal. App. 660, 145 Pac. 173 (here the infor- mation hoth followed the language of the statute and set forth with particularity the details and suc- cessive steps of the fraud). COLO.— Stoltz V. People,- 59 Colo. 342, 148 Pac. 865. ILL.— Morton V. People, 47 111. 468; Graham v. People, 181 111. 477, 47 L. R. A. 731, 55 N. E. 179; People v. Weil, 243 111. 208, 134 Am. St. Rep. 357, 90 N. B. 731. MASS.— Com. v. Ash- ton, 125 Mass. 384, MINN.— State V. Evans, 88 Minn, 262, 92 N. W. 976. MO. — State v. Krueger, 134 Mo. 262, 25 S. W. 604; State v. Dewitt, 152 Mo. 76, 53 S. W. 429; State V. Wllkerson, i7C Mo. 184, 70 S. W. 478; State v. Edgen, 181 Mo. 582, 80 S. W. 942. N. Y.— People V. King, 110 N. T. 418, 6 Am. St. Rep. 389, 1 L. R. A. 293, 18 N. E. 245; Fenton v. People, 4 Hill 126; People v. Rouss, 63 Misc. 135, 23 N. Y. Cr. Rep. 340, 118 N. Y. Supp. 433. UTAH— State v. Swan, 31 Utah 336, 88 Pac. 12. WASH. — State v. Knowlton, 11 Wash. 512, 39 Pac. 966; State v. Ryan, 34 Wash. 597, 76 Pac. 90. Confidence game charged in the language of the statute, held to be sufBcient. — Morton v. People, 47 111. 468; People v. Weil, 243 111. 208, 134 Am. St. Rep. 357, 90 N. E. 731. 3 Com. V. Scroggin, 22 Ky. L. Rep. 1338, 60 S. W. 528; State v. Lewis, 41 La. Ann. 590, 6 So. 536; State V. Southall, 77 Minn. 296, 79 N. W. 1007; Cowan v. State, 22 Neb. 519; State V. King, 67 N. H. 219, 34 Atl. 461; Tarbox v. State, 38 Ohio St. 581. 4 Com. V. Scroggin, 22 Ky. L. Rep. 1338, 60 S. W. 528. 5 Com. V. Parker, 117 Mass. 112; Bargle v. United States, 4 Hayw. & H. 357, Fed. Cas. No. 18229. §G27 FALSE PRETENSES. 831 generic terms, and does not set out all the material facts constituting the offense, the indictment or information will be insufficient,* unless in addition it fully sets forth the elements of the offense,'' because an indictment or in- formation, though in the language of the statute, is in- sufficient where it is too indefinite to inform the accused of the nature of the cause of the accusation against him.® Form prescribed by statute or code^ being followed, the indictment or information will be sufficient.^**' — Negation or pretenses. An indictment or information charging obtaining goods or money by false pretenses should negative the pretenses by which the same was obtained, but need not negative all the pre- tenses,^ it being essential to negative such material pre- 6 state V. Clay, 100 Mo. 571, 13 S. W. 827; Nasets t. State, (Tex. Cr. Rep.) 32 S. W. 698. 7 People V. Haas, 28 Cal. App. 182, 151 Pac. 672; State v. Swan, 31 Utah 336, 88 Pac. 12; State v. Ryan, 34 Wash. 597, 76 Pac. 90. 8 State V. Levy, 119 Mo. 434, 24 S. W. 1026; State v. Fraker, 148 Mo. 143, 49 S. W. 1017; State v. Pickett, 174 Mo. 663, 74 S. W. 844. Contra: State v. Morgan, 112 Mo. 202, 20 S. W. 456; State v. Jackson, 112 Mo. 585, 20 S. W. 674. 9 As, for example, Ala. Cr. Code, 1896, § 4923, Form No. 48, p. 330. 10 O'Connor v. State, 30 Ala. 9; Johnson v. State, 142 Ala. 1, 37 So. 937; Frederick v. State, (Ala.) 39 So. 915. 1 CAL. — People v. Hlnes, 5 Cal. App. 122, 89 Pac. 858. IND.— State V. Smith, 8 Blackf. 489. MASS.— Com. V. Morrill, 62 Mass. (8 Cush.) 671. N. Y. — Thomas v. People, 34 N. Y. 351; People v. Stone, 9 Wend. 182; People v. Haynes, 11 Wend. 557; reversed on another point in 14 Wend. 546, 28 Am. Dec. 530; Skiff V. People, 2 Park. Cr. Rep. 139. ENG. — Hamilton v. R., 9 Ad. & E. N. S. (9 Q. B.) 271, 58 Bng. C. L. 271; R. v. Hill, Russ. & R. C. C. 190. Thus, an indictment for obtain- ing goods by false pretenses which charges that the accused, by falsely representing that he had money in bank, and thereby induc- ing another to accept a check in payment for goods sold and deliv- ered, is sufficient. An additional averment that accused repre- sented that he would give a check different from the one he did give, though unnecessary, is not an averment that he issued such dif- ferent check, and does not vitiate the indictment; and a further averment, characterizing the check issued as "a false token" and "a false writing" may be disregarded as surplusage, because neither add- ing to nor detracting from the material allegation charging the gist of the offense. — ^Barton v. Peo- 832 CRIMINAL PEOCEDUEE. §627 tenses only as the prosecution expects to prove to have been false, and this must be done by such specific aver- ment as will give to the accused due notice of what he is expected to defend against;- and the averment of fal- sity of the pretenses must be as distinct and specific as pie, 135 111. 405, 25 Am. St. Rep. 375, 10 L. R. A. 302, 25 N. B. 776. Several false pretenses inducing sale of goods, set out in indict- ment or information, as to whether proof of some of the false pre- tenses will be sufficient, quasre. — People V. Haynes, 14 Wend. (N. Y.) 546, 28 Am. Dec. 530. — Proof of one is held to be sufficient in State v. King, 67 N. H. 219, 34 Atl. 461; Bielschofsky v. People, 3 Hun 40, 2 Cow. Cr. Rep. 96, 5 Thomp. & C. 277; affirmed, 66 N. Y. 616. 2 ILL.— Barton t. People, 135 111. 405, 25 Am. St. Rep. 375, 10 L. R. A. 302, 25 N. E. 776. IND.— State v. Smith, 8 Blackf. 489 ; State v. Tim- mons, 58 Ind. 98; State v. Long, 103 Ind. 481; Pattee v. State, 109 Ind. 545, 10 N. E. 421; Funk v. State, 149 Ind. 338, 49 N. B. 266. IOWA— State v. Webb, 26 Iowa 262. KAN.— State v. Metsch, 37 Kan. 220, 15 Pac. 251; State v. Palmer, 50 Kan. 518, 32 Pac. 29. KY. — Com. V. Sanders, 98 Ky. 12, 32 S. W. 129; Com. v. Whitney, 8 Ky. L. Rep. 776, 3 S. W. 533. MD. — State v. Blizzard, 70 Md. 385, 14 Am. St. Rep. 366, 17 Atl. 270. MASS. — Com. v. Eastman, 55 Mass. (1 Cush.) 189, 48 Am. Dec. 596; Com. v. Morrill, 62 Mass. (8 Cush.) 571. MICH. — People v. Reynolds, 71 Mich. 343, 38 N. W. 923; People v. Behee, 90 Mich. 356, 51 N. W. 515; People v. Fitz- gerald, 92 Mich. 328, 52 N. W. 726; People V. Lennox, 106 Mich. 625, 64 N. W. 488. MO.— State v. Pea- cock, 31 Mo. 413; State v. Brad- ley, 68 Mo. 140; State v. De Lay, 93 Mo. 98, 5 S. W. 607. N. Y.— Thomas v. People, 34 N. Y. 351; Barber v. People, 17 Hun 366; People V. Winner, 80 Hun 130, 9 N. Y. Cr. Rep. 288, 30 N. Y. Supp. 54; Skiff v. People, 2 Park. Cr. Rep. 139 ; People v. Stone, 9 Wend. 182; People v. Conger, 1 Wheel. Cr. Cas. 448. iST. C— State v. Bur- rows, 33 N. C. (11 Ired. L.) 477; State V. Pickett, 78 N. C. 458; State V. Lambeth, 80 N. C. 393. OHIO— Redmond v. State, 35 Ohio St. 81; State v. Trisler, 49 Ohio St. 583, 31 N. E. 881. PA.— Com. V. Wallace, 114 Pa. St. 405, 60 Am. Rep. 353, 6 Atl. 685; Com. v. Ad- ley, 1 Pears. 62. TENN. — Tyler v. State, 21 Tenn. (2 Humph.) 37, 36 Am. Dec. 298; Jim v. State, 27 Teun. (8 Humph.) 603; Britt v. State, 28 Tenn. (9 Humph.) 31; Amos V. State, 29 Tenn. (10 Humph.) 117. TEX.— State v. Levi, 41 Tex. 568. ENG.— Hamilton v. R., 9 Ad. & E. N. S. (9 Q. B.) 271, 58 Eng. C. L. 271; R. v. Airey, 2 Bast 30, 102 Eng. Repr. 279 ; R. v. Perrott, 2 Maul. & S. 379, 105 Eng. Repr. 422, 8 Eng. Rul. Cas. 116, 15 Rev. Rep. 280. Special averment negativing matter as to which the alleged false pretenses were made, is nec- essary to sufficiency. — Com. y. Sanders, 98 Ky. 12, 32 S. W. 129. § 628 FALSE PRETENSES. 833 in the case of a charge of perjury;* otherwise, the in- dictment or information will be insufficient.* But it is not essential that the indictment or information should allege in terms that the pretenses were false, where it is alleged that accused knowingly, designedly, falsely and feloni- ously pretended, and so forth.° § 628. Surplusage. Where in an indictment or in- formation, in addition to the essential facts required to be stated, other and unessential facts are alleged which are wholly redundant and useless, the latter may be dis- regarded as surplusage, under the general rule of pleading as to surplusage.^ Thus, where the accused, being a mer- chandise broker, is charged with falsely representing him- self to be the agent and broker of certain undisclosed per- sons residing in another city, e. g., New York, and with thereby obtaining certain goods, the indictment nowhere charging that he was a broker or agent, or authorized to act for the undisclosed persons, it is surplusage to allege that the offense was committed by him "in his capacity as a merchandise broker"; as would also be the further averment of an actual sale to the parties in such foreign city, effected by the accused as their broker, and a de- 3 state V. Peacock, 31 Mo. 413. R. R. Co., 38 Mo. App. 408; State 4 IND.— Keller v. State, 51 Ind. v. Phillips, 36 Mont. 112, 92 Pac. 299. Immaterial averments in an In- dictment or Information do not render it defective where it is ap- _ parent that they could have preju- TENN.-Tyler v. State, 21 Tenn. ^.^^^ ^^^ accused.-State v. Phil- (2 Humph.) 37, 36 Am. Dec. 298. ^^^^ gg ^^^^ ^^^^ g^ p^^ ^gg TBX.-State v. Dyer, 41 Tex. 520. i^^ictment will not he quashed 5 Britt V. State, 28 Tenn. (9 simply because it contains imma- Humph.) 31; State v. Hurst, 11 terjai allegations, or because some W. Va. 54, 3 Am. Cr. Rep. 100. qj the pretenses are not properly 1 State V. Gordon, 56 Kan. 64, charged, where upon the face of 42 Pac. 346; Com. v. Jeffries, 89 the indictment it appears that an Mass. (7 Allen) 548, 83 Am. Dec. offense has been committed. — 712; State v. Vorback, 66 Mo. 168; Com. v. Parmenter, 121 Mass. 354; Doan V. St. Louis, K. & N. W. Com. v. Stevenson, 127 Mass. 446. I. Crim. Proc— 53 11. MICH.— People v. Behee, 90 Mich. 356. N. Y. — Bai-ber v. Peo- ple, 17 Hun 366. N. C— State v. Burrows, 33 N. C. (11 Ired. L.) 477. 834 CRIMINAL PKOCEDUEE. §629 livery in pursuance of such sale, and a receipt by accused in such capacity.* § 629. Necessary averments — False pretenses and KNOWLEDGE THEREOF. Exccpt as Otherwise provided by statute in some states,^ an indictment or information charging obtaining of money or property by false pre- tenses, or by the use of false tokens, must distinctly aver that such pretenses or tokens were false,'^ and the nega- 2 Com. V. Jeffries, 89 Mass. (7 Allen) 548, 83 Am. Dec. 712. 1 As in Texas. See Arnold v. State, 11 Tex. App. 472. 2 CAL. — People v. Millan, 106 Cal. 320, 39 Pac. 65; People v. Griffith, 122 Cal. 212, 54 Pac. 275. COLO. — Current v. People, 60 Colo. 362, 153 Pac. 684. FLA.— Hamilton v. State, 16 Fla. 288. GA. — Carlisle v. State, 2 Ga. App. 651, 58 S. B. 1068. ILL.— People V. Manns, 146 111. App. 571. IND.— State V. Smith, 8 Blackf. 489 ; Pat- tee V. State, 109 Ind. 545, 10 N. E. 421; Funk v. State, 140 Ind. 338, 49 N. B. 266; Campbell v. State, 154 Ind. 309, 56 N. E. 665. IOWA— State V. Webb, 26 Iowa 262. KAN.— State v. Metsch, 37 Kan. 222, 15 Pac. 251; State v. Palmer, 50 Kan. 318, 32 Pac. 29; State v. Crane, 54 Kan. 251, 38 Pac. 270. MICH. — People v. Behee, 90 Mich. 356, 51 N. W. 515; People v. Fitz- gerald, 92 Mich. 328, 52 N. W. 726. MINN. — Smith v. State, 55 Miss. 513. MISS. — State v. Mortimer, 82 Miss. 443, 34 So. 214; State v. Freeman, 103 Miss. 764, 60 So. 774. MO.— State v. Peacock, 31 Mo. 413; State v. Bradley, 68 Mo. 140; State v. DeLay, 93 Mo. 98, 5 S. W. 607. MONT.— Terr. v. Un- derwood, 8 Mont. 131, 19 Pac. 398 ; State V. Phillips, 36 Mont. 112, 92 Pac. 299. N. J.— State v. Riley, 65 N. J. L. 624, 48 Atl. 536; State v. Murphy, 68 N. J. L. 235, 15 Am. Cr. Rep. 236, 52 Atl. 279. N. Y.— People V. Stone, 9 Wend. 182; Peo- ple V. Haynes, 11 Wend. 557; re- versed on another point in 14 Wend. 546, 28 Am. Dec. 530; Peo- ple V. Gates, 13 Wend. 311; In re Conger, 4 City Hall Rec. 65; Peo- ple V. Winner, 80 Hun 130, 9 N. Y. Cr. Rep. 288, 30 N. Y. Supp. 54. N. C— State v. Pickett, 78 N. C. 458. OHIO — Redmond v. State, 35 Ohio St. 81; State v. Trisler, 49 Ohio St. 583, 31 N. B. 881; Horton V. State, 85 Ohio St. 13, Ann. Cas. 1913B, 90, 39 L. R. A. (N. S.) 423, 96 N. E. 797; Winnett v. State, 18 Ohio Cir. Ct. 515, 10 Ohio Cr. Dec. 245. PA. — Com. v. Adley, 1 Pears. 62. S. C— State v. Wilson, 2 Mill 135. TENN.— Tyler v. State, 21 Tenn. (2 Humph.) 37, 36 Am. Dec. 298; Amos v. State, 29 Tenn. (10 Humph.) 117. TEX.— State v. Levi, 41 Tex. 563; Maranda v. State, 44 Tex. 442, 1 Am. Cr. Rep. 225; Hirsch v. State, 1 Tex. App. 493. VA. — Com. V. Speer, 4 Va. (2 Va. Cas.) 65. FED. — United States v. Watkins, 3 Cr. C. C. 441, Fed. Cas. No. 16649; United States v. Post, 113 Fed. 852. An avennent that the one whose name Is signed to the letter "never §629 FALSE PRETENSES. 835 tiving must he by distinct and special averment,^ it not did write or send, or cause to be written or sent, any such letter,'' is a sufficient averment of falsity. — Tyler v. State, 21 Tenn. (2 Humph.) 37, 36 Am. Dec. 298. Alleging want of authority on the part of accused to collect money for injury sustained by a named person in an accident, and that no such accident as described by accused occurred, held not to be a sufficient denial of accused's representations. — People v. Behee, 90 Mich. 353, 51 N. W. 515. "Did falsely and designedly pre- tend," etc., by means of which money or credit was obtained, held to be a sufficient negativing of the truth of the representations in Com. v. Rosenberg, 1 Pa. Co. Ct. Rep. 273, 3 Lane. Law Rev. 75. Falsity of the representations is sufficiently laid where the in- dictment alleged that liens to the amount of $6400 existed against the property at the date of the representations that the property was free from liens, whereas in fact the notices of the liens were not filed until after the represen- tations were made and the money procured. — ■ People v. Moxley, 17 Cal. App. 466, 120 Pac. 43. Full truth of false representar tions must be negatived; thus, where accused is charged with having falsely represented that he was the owner of several parcels of land, an indictment alleging that accused "was not then and there the owner of all of said real estate" is an insufficient negativ- ing of the truth of the representa- tions. — ^State V. Trisler, 49 Ohio St. 583, 31 N. B. 881. Horse represented as "sound and all right," indictment or infor- mation specifically denying that representation need not set out in what particular the horse was dis- eased. — ■ Waterman v. State, 114 Ga. 262, 40 S. E. 262. Obtaining money for charity un- der false pretenses being charged, the words "whereas. In truth and In fact . . . was not at any time, nor at any other time, au- thorized by ... to collect any money, . . ." avers the falsity in fact of accused's pretenses suffi- ciently. — People V. Mtzgerald, 92 Mich. 328, 52 N. W. 726. Representations or false pre- tenses must be relative to matter inducing to reliance upon same and parting with money or prop- erty; consequently, an indictment charging obtaining money under false pretenses, showing the pre- tenses to be a false representation that a building and loan associa- tion with which accused did not appear to be connected had a gen- uine existence, was held insuffi- cient, in Roper v. State, 58 N. J. L. 420, 33 Atl. 969. Substantial truth and not merely the literal truth of representations by means of which accused ob- tained money, property or credit, must be negatived. — Redmond v. State, 35 Ohio St. 81. Truth of the pretense not nega- tived, the indictment does not charge an offense. — Pattee v. State, 109 Ind. 545, 10 N. B. 421. 3 Id. See Com. v. Sanders, 98 Ky. 12, 32 S. W. 129; State v. Pea- cock, 31 Mo. 413. See, also, supra, § 627. Knowingly and falsely repre- senting specified things, with in- 836 CRIMINAL PEOCEDUEE. §629 being sufficient to set out the false pretenses or false tokens and allege that the accused falsely pretended and by means thereof obtained the money or property al- leged.* Where the alleged false representations consist of a series of interdependent statements, the allegation of falsity must not be negatively pregnant;^ and where several pretenses are set out, all forming part of a gen- eral scheme, it is necessary to negative enough of the pretenses, only, to show the scheme was fraudulent.® tent, etc., being alleged simply, is insufficient because not specifi- cally negativing by direct aver- ment the matter as to vfhicli the alleged false statement or pre- tenses was made. — Com. v. San- ders, 98 Ky. 12, 32 S. W. 129. Sale of piano charged to be fraudulent on the part of the ac- cused in representing that he was the owner thereof and had pur- chased it for a price much less than its actual value, indictment or information alleging accused was not in fact the owner of the piano and had never owned it, is not insufficient because it falls specifically to deny that the ac- cused purchased the piano for the sum named by him, because the specific allegation that he did not and never had owned the piano is a sufficient denial that he ever purchased for said sum. — Merrill V. State, 156 Ind. 99, 59 N. B. 322. 4KY.^ ulent" do not in effect allege that the accused knew them to be false.^2 sible. — Com. v. Hulbert, 53 Mass. (12 Met.) 446. 10 State V. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. See R. v. Phil- potts, 1 Car. & K. 112, 47 Eng. C. L. 110; R. T. Henderson, 1 Car. & M. 328, 41 Eng. C. L. 183. "Did designedly, falsely repre- sent and pretend" that he had re- ceived a designated subscription from a named person with pay- ment in full thereof, held to suffi- ciently negative accused's igno- rance of falsity of the pretense. — People V. Lennox, 106 Mich. 625, 64 N. W. 488. "The defendant designedly and unlawfully did falsely pretend," omitting the word "knowingly," was held to sufficiently charge knowledge on the part of the ac- cused of the falsity of the pre- tenses. — Com. V. Hulbert, 53 Mass. (12 Mete.) 446. 11 Com. V. Whitney, 8 Ky. L. Rep. 776, 3 S. W. 533; Com. v. Shedd, 61 Mass. (7 Cush.) 514; People v. Behee, 90 Mich. 356, 51 N. W. 515; People v. Fitzger- ald, 92 Mich. 328, 52 N. W. 726; People v. Lennox, 106 Mich. 625, 64 N. W. 488. Indorsement on note procured by falsely representing to the in- dorser that accused had specified property, and on trial accused stating he never had said prop- erty, an indictment need not allege the falsity of the representation, because the accused, from his own statement, must have known the falsity. — Com. v. Shedd, 61 Mass. (7 Cush.) 514. Procuring goods from store by falsely pretending accused had been sent by A to procure the goods and representing that A would pay for them, indictment alleging said statements to be false, held to be sufficiently defi- nite to enable accused to know the nature of the charge against him. — Com. v. Whitney, 8 Ky. L. Rep. 776, 3 S. W. 533. 12 Maranda v. State, 44 Tex. 442, 1 Am. Cr. Rep. 225; Doxey v. State, 47 Tex. Cr. Rep. 503, 11 Ann. Cas. 830, 8^. S. W. 1061. §630 FALSE PEETENSES. 839 § 630. Intent and design. An indictment or infor- mation charging obtaining goods or other property under false pretenses or by means of false tokens, must spe- cifically allege that the false pretenses were made, or the false tokens used, with the intent to cheat and defraud,^ 1 ALA. — Mack v. State, 63 Ala. 138; Carlisle v. State, 76 Ala. 75; White V. State, 86 Ala. 69, 8 Am. Cr. Rep. 225, 5 So. 674. CAL.— People V. Haas, 28 Cal. App. 182, 151 Pac. 672. FLA. — Jones v. State, 22 Fla. 532. IND.— Todd v. State, 31 Ind. 514; Abbott v. State, 59 Ind. 70. IOWA— State v. Grant, 86 Iowa 216, 53 N. W. 120; State V. Daniels, 90 Iowa 491, 58 N. W. 891. LA. — State v. Lewis, 41 La. Ann. 591, 6 So. 536. ME.— State V. Philbrick, 31 Me. 401. MASS.— Com. V. Wilgus, 21 Mass. (4 Pick.) 177; Com. v. Strain, 51 Mass. (10 Mete.) 521; Com. v. Lannan, 83 Mass. (1 Allen) 590; Com. v. Hooper, 104 Mass. 549; Com. v. Dean, 110 Mass. 64; Com. v. Coe, 115 Mass. 481; Com. v. Howe, 132 Mass. 250. MICH. — People v. Getchell, 6 Mich. 496; People v. Wakely, 62 Mich. 297, 28 N. W. 871. MO.— State v. Scott, 48 Mo. 422; State v. Smallwood, 68 Mo. 192, 3 Am. Cr. Rep. 98; State v. Benson, 110 Mo. 18, 19 S. W. 213; State V. Chapel, 117 Mo. 639, 23 S. W. 760; State v. Kain, 118 Mo. 5, 23 S. W. 763; State v. Fraker, 148 Mo. 143, 49 S. W. 1017; State V. Martin, 226 Mo. 538, 126 S. W. 442. MONT. — Terr. v. Underwood, 8 Mont. 131, 19 Pac. 398; State v. Phillips, 36 Mont. 112, 92 Pac. 299. NEB.— Jacobs v. State, 31 Neb. 33, 47 N. W. 423. N. Y.— Scott v. Peo- ple, 62 Barb. 62; Clark v. People, 2 Lans. 329. N. C— State v. Gar- ris, 98 N. C. 733, 4 S. E. 633; State V. Burke, 108 N. C. 750, 12 S. B. 1000. OHIO— Coblentz v. State, 84 Ohio St. 235, 95 N. B. 768; Horton V. State, 85 Ohio St. 13, Ann. Cas. 1913B, 90, 39 L. R. A. (N. S.) 423, 96 N. B. 797; State v. Mutchler, 87 Ohio St. 268, 101 N. E. 267. PA.^<;om. V. Shissler, 9 Phila. 587; Com. v. Adley, 1 Pars. 62. TBX.— Marshall v. State, 31 Tex. 471; Jones v. State, 8 Tex. App. 648; Stringer v. State, 13 Tex. App. 520. VT. — State v. Switzer, 63 Vt. 604, 25 Am. St. Rep. 789, 22 Atl. 724. WASH. — State v. Phelps, 41 Wash. 470, 84 Pac. 24. WYO. — Haines v. Territory, 3 Wyo. 167, 13 Pac. 8. There must be an allegation of an "intent to cheat and defraud," otherwise it is fatally defective. — People V. Cohen, 147 111. App. 393 ; People V. Herroa, 147 111. App. 396. Where the information charged the defendant with "wilfully, un- lawfully and feloniously with in- tent to cheat and defraud" obtain- ing money, but failed to use the word "designedly" or its equiva- lent, it was insuflScient. — State v. Pickett, 174 Mo. 663, 74 S. W. 844. Intent of accused in making the false representations need not be alleged to have been to accom- plish the particular result which was in fact obtained, or to accom- plish it in a particular manner. — 840 CEIMINAL PEOCEDUKE. §630 it not being sufficient to allege that the pretenses were made for the purpose of obtaining the money or prop- erty, and that by means of them accused did obtain the money or property with intent to cheat and defraud. ^ The general rule is that the averment must be affirmatively made and not merely by way of inference or argument,* although there are cases which hold that there need be no express averment of intent.* Where the statute allows Todd V. state, 31 Ind. 514; Com. v. O'Brien, 172 Mass. 248, 52 N. E. 77. Intent need not be alleged In Texas; the courts will infer an intent corresponding with, the ob- vious consequences of the ac- cused's acts. — Tomkins v. State, 33 Tex. 228; Robinson v. State, 33 Tex. 341. Compare: Stringer v. State, 13, Tex. App. 520. — In Vermont, under the statute, intent need not be alleged. — State V. Bacon, 7 Vt. 222; State v. Swit- zer, 63 Vt. 604, 25 Am. St. Rep. 789, 22 Atl. 724. Signature to written Instrument charged to have been obtained by false pretenses, the indictment or information must state that the signature was obtained with In- tent to defraud, otherwise it will be fatally defective. — State v. Dan- iels, 90 Iowa 491, 58 N. W. 891; State V. Switzer, 63 Vt. 604, 25 Am. St. Rep. 789, 22 Atl. 724. "Then and there asked and re. quested" the person defrauded to whom certain false pretenses had been made, "in consideration thereof, to pay and deliver" to the accused the money alleged to have been secured, sufficiently sets forth an intent to defraud. — Com. V. Howe, 132 Mass. 250. "With Intent to cheat and de- fraud, to the great damage" of a person named, sufficiently charged the intent in false pretenses. — State V. Burke, 108 N. C. 750, 12 S. E. 1000. "With intent to defraud" need not be used in an indictment or information for statutory larceny under the statute where it is al- leged that accused unlawfully, knowingly, etc., with an intent to deprive the true owner of his property, by means, color and aid of certain false writings and rep- resentations, then and there known to the accused to be false, because the allegation amounts to an averment of an intent to de- fraud. — State V. Southall, 77 Minn. 296, 79 N. W. 1077. 2 State V. Scott, 48 Mo. 422; State V. Smallwood, 68 Mo. 192, 3 Am. Cr. Rep. 98. 3 Carlisle v. State, 76 Ala. 75; White V. State, 86 Ala. 69, 8 Am. Or. Rep. 225, 5 So. 674; Com. v. Dean, 110 Mass. 64; Stringer v. State, 13 Tex. App. 520. 4GA. — Sadler v. State, 9 Ga. App. 201, 70 S. E. 969. IND.— Todd v. State, 31 Ind. 514. IOWA— State V. Hazen, 104 Iowa 16, 73 N. W. 359. MO.— State v. Small- wood, 68 Mo. 192, 3 Am. Cr. Rep. 98. An allegation that the defen- § 631 FALSE PRETENSES. 841 the intent to be alleged in the alternative, "to injure or defraud," an indictment charging "an intent to de- fraud, ' ' is sufficient.^ Particular person intended to be defrauded by the ac- cused need not be alleged, under some statutes." Design to defraud being an essential element of the statute under which prosecution is had, an indictment or information which fails to allege that the act was "de- signedly" done, will be insufficient §631. "Feloniously." An indictment or infor- mation charging false pretense in the words of the stat- ute, setting forth the pretenses and alleging their fal- sity, is sufficient, without an allegation that the pretenses were "feloniously" made,^ in the absence of statutory requirement to that effect; and where the absence of any intent to defraud would not avail as a defense, it is unnecessary to allege a fraudulent or a felonious intent.^ But where by statute the crime of obtaining money or property by false pretenses, or by means of false tokens, dant unlawfully, knowingly, etc., 6 White v. State, 86 Ala. 69, with Intent to deprive the owner 8 Am. Cr. Rep. 225, 5 So. 674. of his property by means of cer- g gt^te v. Scott, 48 Mo. 422. tain false writings and represen- tations known by him to be false. Is equivalent to an allegation of an intent to defraud. - State v. State v. Wilson, 143 Mo. 334, 44 Southall, 77 Minn. 296, 79 N. W. «. W. 722; State v. Pickett, 174 1007. Mo. 663, 74 S. W. 844. TEX.— An averment that the represen- State v. Baggerly, 21 Tex. 757. tations were fraudulently made Is VT.— State v. Switzer, 63 Vt. 604, sufficient— Isaacs v. State, 7 Ga. 25 Am. St. Rep. 789, 22 Atl. 724. App. 799, 68 S. E. 338. The word "designedly," or its It is enough to allege that the equivalent, must be used.— State pretenses were made for the pur- ^ withee, 87 Me. 462, 32 Atl. 1013. pose of obtaining the property; ^ ^^^^^ ^ ^^ ^^ and that by means thereof he did _ _ ^ ^^ „„ ^^^ ^„, „_ obtain the property with Intent to ^^ate v. Switzer. 63 Vt. 604, 25 Am. cheat and defraud. - State v. St. Rep. 789, 22 Atl. 724. Smallwood, 68 Mo. 192, 3 Am. Cp. 2 State v. Mitchell, 109 Miss. 91, Rep. 98. 67 So. 853. 7 IOWA — State v. Hazen, 104 Iowa 116, 73 N. W. 359. MO.— 842 CRIMINAL PROCEDUEE. § 632 is made a felony, or where the statute defining the crime uses the word "feloniously," an indictment or informa- tion charging the crime must allege a "felonious" in- tent;^ and it has been said that it is not sufficient to allege that the accused, with intent to defraud, did ' ' felo- niously" make the false pretenses complained of,* al- though there are authorities to the contrary, holding that an allegation that the accused * ' did feloniously make cer- tain false pretenses" does not make the instrument vul- nerable to the objection that it is insufficient by reason of its failure to specifically allege that the accused "felo- niously" intended.^ § 632. Parties — By whom made. An indictment or information charging obtaining money or other property by false pretenses, we have already seen,^ must spe- cifically allege that the false pretenses or statements were made or authorized by the accused.^ Where two or more persons are acting in concert in obtaining money or other property by false pretenses, and the false pre- tenses are. made by one of them only, the indictment or information must allege by which one of the accused such false pretenses were made;^ but it seems that an allegation that the defendants made the false pretenses, 3 MO. — state v. Turley, 142 Mo. being charged, indictment must 403, 44 S. W. 267. N. Y. — People allege that accused's acts and in- V. Fish, Seld. 537, 4 Park. Cr. Rep. tent were "felonious." — People v. 206. N. C— State v. Skidmore, 109 Pish, Sheld. (N. Y.) 537, 4 Park. N. C. 795, 14 S. E. 63; State v. Cr. Rep. 206. Bryan, 112 N. C. 848, 16 S. E. 909; 4 R. v. Walker, 6 Car. & P. 657, State V. Caldwell, 112 N. C. 854, 25 Eng. C. L. 582; R. v. Howarth, 16 S. B. 1010; State v. Wilson, 3 Stark. 26, 14 Eng. C. L. 151. 116 N. C. 979, 21 S. E. 692. 5 State v. Truly, 142 Mo. 403, TBNN. — State v. Tate, 25 Tenn. 44 S. W. 267. (6 Humph.) 424; Johnson v. State, i See, supra, §625, footnotes 10 25 Tenn. (6 Humph.) 426; Jim v. and 11, and text going therewith. State, 27 Tenn. (8 Humph.) 603. 2 Dwyer v. State, 24 Tex. App. TEX.— State v. Small, 31 Tex. 184. 132, 5 S. W. 662. Defrauding by false weights 3 Kirtley v. State, 38 AtX. 543. § 633 FALSE PRETENSES. 843 is a sufficient allegation that each of the defendants made such false pretenses or representations.* Capacity in which accused acted in making such false pretenses or representations, e. g., in his capacity as a merchandise broker, is immaterial, and the maxim, ' ' utile per inutile non vitiatur," is applicable to it, because the offense which the statute aims to prevent is the obtain- ing of property by false pretenses with an intent to defraud the owner thereof, and a possession so obtained is criminal by whomsoever it is accomplished, and in whatever capacity he acts." § 633. To WHOM MADE AND WHO DEFBAI7DED. The general rule is that an indictment or information charging obtaining money or other property by means of false pretenses, or false tokens, should state to whom the false pretenses were made,^ and also who was de- frauded or attempted to be defrauded thereby,^ unless 4 People V. Jeffrey, 82 Hun "LA. — State v. Lewis, 41 La. Ann. (N. Y.) 409, 9 N. Y. Cr. Rep. 419, 590, 6 So. 536. MICH.— People v. 31 N. Y. Supp. 267. Barkelow, 37 Mich. 455. MO.— 5 Com. V. Jeffries, 89 Mass. (7 State v. McChesney, 90 Mo. 120, Allen) 548, 83 Am. Dec. 712. 7 Am. Cr. Rep. 184, 1 S. W. 841, iln re Schurman, 40 Kan. 533, overruling 16 Mo. App. 259; State 20 Pac. 277; State v. Fraker, 148 v. Horn, 93 Mo. 190, 6 S. W. 96; Mo. 143, 49 S. W. 1017; Colbert v. State v. Dowd, 95 Mo. 163, 8 S. W. State, 1 Tex. App. 314. 7; State v. Praker, 148 Mo. 143, 2 ALA.— Mack v. State, 63 Ala. 49 S. W. 1017; State v. Martin, 138 ; Dorsey v. State, 111 Ala. 40, 226 Mo. 538, 126 S. W. 442. NEB. — 20 So. 629; Bailey v. State, 159 Jacobs v. State, 31 Neb. 33, 47 Ala. 4, 17 Ann. Caa. 623, 48 So. N. W. 422. N. Y.— People v. Fish, 791. CAL. — People v. Haas, 28 Sheld. 537, 4 Park. Cr. Rep. 206. Cal. App. 182, 151 Pac. 672. OHIO— In re Trick Game, 7 Ohio COLO. — Current v. People, 60 U. P. 604, 5 Ohio Dec. 572. Colo. 362, 153 Pac. 684. GA.— TENN. — State v. Woodson, 24 O'Neal V. State, 10 Ga. App. 474, Tenn. (5 Humph.) 55. TEX. — ^Burd 73 S. E. 696; Oliver v. State, 15 v. State, 39 Tex. 509. ENG.— R. v. Ga. App. 452, 83 S. E. 641. IOWA— Sowerby, 2 Q. B. 173; Sill v. R., State V. Clark, 141 Iowa 297, 119 Dears. C. C. 132, 1 El. & BI. 553, N. W. 719. KAN.— In re Schur- 72 Eng. C. L. 553; R. v. Douglas! man, 40 Kan. 533, 20 Pac. 277. 1 Campb. 212; R. v. Silverlock, 844 CRIMINAL PROCEDURE. §633 the name of such person or persons is to the grand jury unknown,' in which case the indictment should so state ;* an omission to set out the name of the person defrauded or attempted to be defrauded, where known, will render the indictment invalid.^ The allegation may be that the false pretenses were made to a designated person,® to a partnership,^ to the public — e. g., where the false repre- 2 L. R. [1894] Q. B. 766, 9 Am. Cr. Rep. 276, distinguishing Reg. v. Sowerby, 2 Q. B. 173. It is sufficient to allege that the false pretense was made to the public through an advertisement in the paper and that by such means a person to whose notice it came and acting thereon was induced to part with money. — ^Reg. V. Silverlock, 18 Cox C. C. 104, 10 Am. Cr. Rep. 318. 3 People V. Pish, Sheld. (N. Y.) 537, 4 Park. Cr. Rep. 206. 4 State V. McChesney, 90 Mo. 120, 7 Am. Or. Rep. 184, 1 S. W. 841. 5 State V. Horn, 93 Mo. 190, 6 S. W. 96. "Brewer's association of St. Louis and East St. Louis" de- scribed as composed of "certain persons, firms and corporations as then and there composing such voluntary association," held fa- tally defective for not setting out the names of the persons, firms and corporations composing such association. — State v. McChesney, 90 Mo. 120, 7 Am. Cr. Rep. 184, 1 S. W. 841. "Divers persons" alleged to have been cheated by false weights and measures held in- sufficient In Tennessee, for not setting out the names of the per- sons defrauded. — State v. Wood- son, 24 Tenn. (5 Humph.) 55. 6 Fraudulent representations charged to have been made to A, with the allegation that he was the owner of the money obtained by means of such representations and that he was the owner of the "Jones County Bank" was held to sufficiently show that the bank was an individual. — Faulk v. State, 38 Tex. Cr. Rep. 77, 41 S. W. 616. 7 ALA. — Woods V. State, 133 Ala. 162, 31 So. 984. IND.— State V. Williams, 103 Ind. 235, 2 N. E. 585. MASS. — Com. v. Call, 38 Mass. (21 Pick.) 515; Com. v. Har- ley, 48 Mass. (7 Mete.) 462. MICH. — People v. Fitzgerald, 92 Mich. 328, 52 N. W. 726. OHIO.— Soughton V. State, 2 Ohio St. 562. Alleging firm name is a sufli- cient charge that the false pre- tenses were made to a partner- ship. — State V. Williams, 103 Ind. 235, 6 Am. Cr. Rep. 256. Charity subscription obtained under false pretenses being charged, an indictment or Infor- mation which states that the per- son to whom the false representa- tions were made was a member of the co-partnership of which the money was fraudulently obtained, held sufficient — People v. Fitzger- ald, 92 Mich. 328, 52 N. W. 726. "H. & P. Son" given as the firm to whom the false representations were made and which was de- frauded, held to be bad for failure §633 FALSE PRETENSES. 845 sentations or statements are made by advertisement** — or to a private® or to a municipaP" corporation; and where the allegation is that a corporation was defrauded, or attempted to be defrauded, it is sufficient to set out the name of such corporation, without designating any particular individual, officer or agent of such corporation to whom the representations or false pretenses were made,^^ By statute in some jurisdictions it is not necessary to allege the name of the person defrauded, it being pro- to specify any person was de- ceived from whom the money was obtained.— Bates v. State, 124 Wis. 612, 103 N. W. 251. "H., H. E., & others" being named in the indictment as the firm that was injured, and it being alleged that the false representa^ tions were made to H. B., with- out alleging that H. E. was a mem- ber or an employee of the firm, was held to be suflficient, because it would be presumed, on de- murrer, that the H. E. to whom the representations were made and the H. B. who was a member of the firm were one and the same person.— Woods v. State, 133 Ala. 162, 31 So. 984. 8 R. V. Silverlock, 2 L. R. [1894] Q. B. 766, 9 Am. Cr. Rep. 276. Cheating by false weights and measures charged, the indictment or information must specify the persons to whom the sales were made. — State v. Woodson, 24 Tenn. (5 Humph.) 55; Burd v. State, 39 Tex. 509. 9 Bailey v. State, 159 Ala. 4, 17 Ann. Gas. 623, 48 So. 791; State v. Hulder, 78 Minn. 524, 81 N. W. 532; State v. Turley, 142 Mo. 403, 44 S. W.. 267; Brown v. State, (Tex. Cr.) 43 S. W. 986. An allegation that the defendant uttered a check with intent to de- fraud "Lesser Bros. Co., a corpo- ration," is sUflScient. — People t. Russell, 156 Cal. 450, 105 Pac. 416. 10 Roberts v. People, 9 Colo. 458, 13 Pac. 630; Com. v. Mulrey, 170 Mass. 103, 49 N. E. 91; State v. Crowley, 39 N. J. L. (10 Vr.) 264; People ex rel. Phelps v. Court of Oyer and Terminer, 83 N. Y. 436. Collector designated as the per- son to whom the false pretenses were made, indictment held suffi- cient to charge obtaining money from the board of chosen freehold- ers, it not being necessary that the pretenses should be made to the owner of the money, such pre- tenses to an agent being sufficient. — State V. Crowley, 39 N. J. L. (10 Vr.) 264. Mayor's signature charged to have been procured by false pre- tenses, held to be sufficient with- out setting out the channels by which the representations were made to the mayor. — People ex rel. Phelps V. Court of Oyer and Ter- miner, 83 N. Y. 436. 11 Bailey v. State, 159 Ala. 4, 17 Ann. Cas. 623, 48 So. 791; State V. Truley, 142 Mo. 403, 44 S. W. 267. 846 CKIMINAL PROCEDURE. § 634 vided that it shall be sufficient to allege that the accused did the acts complained of with the intent to defraud, without alleging an intent to defraud any particular per- son, partnership or corporation,^^ and a charge as to such person is immaterial, and will be treated as surplus- age.^* False pretenses to other than owner of the money or other property received being charged, the indictment or information must show the relation of the person to whom the representations were made with the owner of the money or other property received, in order to show the connection of the former with the latter as agent or otherwise, and how the false pretenses could have caused the injury complained of.** § 634. The false pretenses, false tokens, etc. — In geneeal. Ah indictment or information for obtain- ing money or other property by means of false pre- tenses, or by false tokens, or by tricks and devices, and so forth, in general terms, will not be sufficient ;* the false 12 ALA. — Gardner v. State, 4 Mack t. State, 63 Ala. 138 ; Woods Ala. App. 131, 58 So. 1001. MD.— v. State, 133 Ala. 162, 31 So. 984. State V. Blizzard, 70 Md. 385, 14 1 3 MICH. — People v. Behee, 90 Am. St. Rep. 366, 17 Atl. 270. Mich. 356, 51 N. W. 515; People N. Y.— People v. Rouss, 63 Misc. v. Fitzgerald, 92 Mich. 328, 52 135, 23 N. Y. Cr. Rep. 340, 118 N. W. 726. N. C— State v. Salis- N. Y. Supp. 433. N. C— State v. bury Ice & Fuel Co., 166 N. C. 366, Burke, 108 N. C. 750, 12 S. B. 1000; 52 L. R. A. (N. S.) 216, 81 S. E. State V. Ridge, 125 N. C. 658, 34 737. WASH.— State v. Pilling, 53 S. E. 440; State v. Salisbury Ice Wash. 464, 132 Am. St. Rep. 1080, & Fuel Co., 166 N. C. 366, 52 102 Pac. 230. VHS. — Owens v. L. R. A. (N. S.) 216, 81 S. E. 737. State, 83 Wis. 496, 53 N. W. 736. WASH.— State v. Pilling, 53 Wash. ENG.— R. v. Tully, 9 Car. & P. 464, 132 Am. St. Rep. 1080, 102 227, 38 Eng. C. L. 142. Pac. ,230. ENG.— Sill v. R., Dears. i* Jacobs v. State, 31 Neb. 33, C. C. 132, 1 El. & Bl. 553, 72 Eng. 47 N. W. 422; Owens v. State, C. L. 553; R. v. Sowerby, 2 L. R. 83 Wis. 496, 53 N. W. 736. [1894] Q. B. 173, 7 Am. Cr. Rep. i Burrow r. State, 12 Ark. 65; 184. State v. Roberts, 34 Me. 320; State In Alabama this has been held v. Johnson, 1 D. Chip. (Vt.) 129. without a statutory provision. See False token charged as the §634 FALSE PRETENSES. 847 pretenses, or false tokens, or tricks and devices, must be set out in detail and with reasonable certainty,^ some of the authorities saying they must be specified with strict certainty;* in any event the false pretenses must be set out with such particularity, and in such terms, that the accused may know the exact offense with which he is charged and which he will be called upon to answer, and will enable the court to determine whether the particular things set out come within the statute and render the ac- cused liable for the crime charged;* that is to say, the means of obtaining property by false pretenses, falling to allege that the token was delivered by the accused, and received by the party defrauded. In exchange for, or in payment for the goods or property. Is fatally defective. — Wagoner v. State, 90 Ind. 504. 2CAL. — People v. McKenna, 81 Cal. 158, 22 Pac. 488; People v. Haas, 28 Cal. App. 182, 152 Pac. 672. FLA.— Hamilton v. State, 16 Fla. 288. MO.— State v. Fraker, 148 Mo. 143, 49 S. W. 1017; State V. Pickett, 174 Mo. 663, 74 S. W. 844; State v. Martin, 226 Mo. 538, 126 S. W. 442. WASH.— State v. Swan, 31 Utah 336, 88 Pac. 12. WIS. — State V. Crowley, 41 Wis. 271, 2 Am. Cr. Rep. 33. 3 Burrow v. State, 12 Ark. 65; State V. Roberts, 34 Me. 320; State T. Johnson, 1 D. Chip. (Vt.) 129. 4 O'Connor v. State, 30 Ala. 9; Beasley v. State, 59 Ala. 20. ARK.— Moffatt v. State, 11 Ark. 171; McKenzie v. State, 11 Ark. 594; Burrow v. State, 12 Ark. 65; State V. Vandlmark, 35 Ark. 396. CAL. — People v. Carolan, 71 Cal. 195, 12 Pac. 52; People v. Mc- Kenna, 81 Cal. 158, 22 Pac. 488; People V. Frigerio, 107 Cal. 151, 40 Pac. 107. FLA. -— Hamilton v. State, 16 Fla. 288; Scarlett v. State, 25 Fla. 717, 6 So. 767. GA.— Hatchcock v. State, 88 Ga. 91, 13 S. B. 959; Jones v. State, 93 Ga. 547, 19 S. E. 250. ILL.— Cowen v. People, 14 111. 348; West v. People, 137 111. 189, 27 N. B. 34, 34 N. E. 254. IND. — Keller v. State, 51 Ind. Ill, 1 Am, Cr. Rep. 211; John- son V. State, 75 Ind. 553; Mus- grave v. State, 133 Ind. 297, 32 N. E. 885. IOWA— United States V. Ross, 1 Morr. 164; State v. Cad- well, 79 Iowa 473, 44 N. W. 711. KAN. — State v. Palmer, 40 Kan. 474, 20 Pac. 270; In re Schurman, 40 Kan. 533, 20 Pac. 1277. KY.— Glackan v. Com., 60 Ky. (3 Mete.) 234; Com. v. Moore, 11 Ky. L. Rep. 971, 12 S. W. 1066. MB.— State v. Ripley, 31 Me. 386; State v. Rob- erts, 34 Me. 320; State v. May- berry, 48 Me. 218. MD.— State v. Scribner, 2 Gill & J. 246. MASS.— Com. V. Wallace, 82 Mass. (16 Gray) 221; Com. v. Goddard, 88 Mass. (4 Allen) 312; Com. v. Walker, 108 Mass. 309. MICH.— People V. Arnold, 46 Mich. 268, 9 N. W. 406. MO.— State v. New- ell, 1 Mo. 248; State v. Chunn, 19 Mo. 233; State v. Bonnoll, 46 Mo. 395; State v. Porter, 75 Mo. 171; State V. Crooker, 95 Mo. 389, 8 848 CRIMINAL PROCEDURE. §634 facts must be alleged from wMch it may be determined whether or not the conclusion of their false and fraudu- lent character is correct,^ and it is insufficient to merely aver that the representations were false and fraudu- lent.** There need, however, be no allegation as to whether the pretenses were spoken or written.'' All the pretenses need not be set out, the indictment or information being sufficient where it sets out those S. W. 422; state v. Clay, 100 Mo. 571, 13 S. W. 827; State v. Terry, 109 Mo. 601, 19 S. W. 206; State V. Benson, .110 Mo. 18, 19 S. W. 213; State v. Cameron, 117 Mo. 371, 22 S. W. 1024; State v. Flem- ing, 117 Mo. 377,. 22 S. W. 1024; State V. Chapel, 117 Mo. 639, 23 S. W. 760; State v. Kain, 118 Mo. 5, 23 S. W. 763; State v. Levy, 119 Mo. 434, 24 S. W. 1024; State V. Fraker, 148 Mo. 143, 49 S. W. 117; State v. Pickett, 174 Mo. 663, 74 S. W. 844; State v. McChesney, 16 Mo. App. 259. N. H.— State v. Parker, 43 N. H. 83. N. Y.— Thomas v. People, 34 N. Y. 351; People V. Laurence, 66 Hun 574, 21 N. Y. Supp. 818; reversed on another point, 137 N. Y. 517, 10 N. Y. Cr. Rep. 331, 33 N. B. 547; Skiff V. People, 2 Park. Cr. Rep. 139; People v. Stone, 9 Wend, 182, 191; People v. Haynes, 11 Wend. 557; reversed on another point in 14 Wend. 546, 28 Am. Dec. 530; People V. Gates, 13 Wend. 311; People V. Conger, 1 Wheel. Cr. Cas. 448. N. C— State v. Boon, 40 N. C. (4 Jones L.) 463; State v. Holmes, 82 N. C. 607; State v. Sherrill, 95 N. C. 663. OHIO— Dillingham v. State, 5 Ohio St. 280, PA.— Com. v. Frey, 50 Pa. St. 245; Com. V. Wallace, 114 Pa. St. 405, 60 Am. Rep. 353, 6 Atl. 685; Com. V. Gillespie, 7 Serg. & R. 469, 10 Am. Dec 475; Com. v. McKlsson, 8 Serg. & R. 420, 11 Am. Dec. 630; Com. V. Daniels, 2 Pars. Eg. Cas. 332; Com. v. Dennis, 1 Pa. Co. Ct. Rep. 278; Com. v. Galbraith, 24 Leg. Int 117. TENN.— Bowen v. State, 68 Tenn. (9 Baxt.) 45, 40 Am. Rep. 71. TEX. — State v. Dyer, 41 Tex. 520; Warrington v. State, 1 Tex. App. 168 ; Mathena v. State, 15 Tex. App. 473. VT.— State v. Johnson, 1 D. Chip. 129; State v. Keach, 40 Vt. 113. WIS.— State v. Green, 7 Wis. 676. FED. — United States v. Hess, 124 U. S. 483, 31 L. Ed. 516, 8 Sup. Ct. Rep. 571; United States v. Watkins, 3 Cr. C. C. 441, Fed. Cas. No. 16649; United States v. Beatty, 60 Fed. 740. CANADA— R. v. Davis, 18 Up. Can. Q. B. 180; R. v. Patterson, 26 Ont. 656. ENG.— R. v. Plestow, 1 Campb. 494; R. v. Munoz, 2 Stra. 1127, 93 Eng. Repr. 1078; R. V. Mason, 2 T. R. 581, 100 Eng. Repr. 312, 1 Rev. Rep. 545; R. v. Hazelton, L. R. 2 C. C. 134; R. v. Henshaw, 9 Cox C. C. 472. B People V. Carpenter, 6 Cal. App. 231, 91 Pac. 809. 6 People V. Carpenter, 6 Cal. App. 231, 91 Pac. 809. 7 Com. V. Stevenson, 127 Mass. 446; Com. v. Mulrey, 170 Mass. 103, 49 N. E. 91. § 634 FALSE PRETENSES. 849 false pretenses, false tokens, tricks and devices, whicli were the inducing cause to reliance by the party de- frauded, and because of which the crime charged was rendered possible.® Spoken words constituting the false pretenses charged, an indictment setting out the words as uttered, has been said to be sufficient, without explaining their meaning.* Written instrument, e. g., a certificate of stock, charged as the false token used, an indictment or information is sufficient which alleges its falsity without setting forth the manner in which it could be used by the accused to accomplish his purpose of deceiving and defrauding the party named ;^'' the same is true of a false coin,^* and the like. The general rule is that the written instrument or false token should be set out in the indictment or in- formation either in haec verba or by purport.^^ Where the written instrument thus used is known by a well de- fined name — e. g., bank bill,^* check," verified claim against a county,^^ and the like — and which is but one step in the transaction, a particular description of the instrument in the indictment is unnecessary,^* it being sufficient to describe the instrument by name and set sCowen v. People, 14 111. 348; 400, 5 S. W. 316; Hardin v. State, Moore V. People, 190 111. 331, 60 25 Tex. App. 74, 7 S. W. 534; Fer- N. E. 535. guson v. State, 25 Tex. App. 451, 9 State V. Call, 48 N. H. 126; « S. W. 479; Doxey v. State, 47 :'kiff V. People, 2 Park. Cr. Rep. ^ex. Cr. Rep. 503, 11 Ann. Cas. (N Y.) 139. ^^O' ^* ^- "^- ^°^1- 10 Com. V. Coe, 115 Mass. 481. Reason must be given where in- strument can not be set out in 11 Com. V. Nason, 75 Mass. (9 full— Ferguson v. State, 25 Tex. Gray) 125. App. 451, 8 S. W. 479. 12 See: ALA. — Oliver v. State, i3 See State v. Lyman, 8 Blackf. 37 Ark. 134. IND.— State v. Lay- (Ind.) 330. man, 8 Blackf. 338. MASS.— Com. i4 State v. Baker, 57 Kan. 541, V. Coe, 115 Mass. 491. TEX.— 46 Pac. 947. State V. Dyer, 41 Tex. 520; Baker is See Wilson v. State, 156 Ind. V. State, 14 Tex. App. 332; Dwyer 631, 59 N. E. 380, 60 N. B. 1086. V. State, 24 Tex. App. 132, 5 S. W. i6 State v. Baker, 57 Kan. 541, 662; Willis v. State, 24 Tex. App. 46 Pac. 947. 1. Crlm. Proc. — 54 i 850 CRIMINAL PEOCEDURE. § 635 out the purport thereof,^'' except in those eases in which the instrument enters into the offense as the basis thereof, that is, as the inducement,^* or the question whether the crime charged was in fact perpetrated turns upon the construction of the instrument, in either of which cases the instrument must be set out in hsec verba. ^^ By statute in some jurisdictions the false pretenses, and so forth, used by the accused are not required to be set out in the indictment or information, it not being necessary to state the particulars of the false pretense intended to be relied upon by the prosecution.^" § 635. Desckiption of the pabtictjlab pre- tenses. The indictment or information must clearly and certainly, in plain and concise language, describe the par- ticular pretense, or the false token, complained of, by means of which the fraud alleged was perpetrated, suf- ficiently to inform the accused of the nature and cause of the accusation against him,* or it will be insufficient.- 17 state V. Caldwell, 79 Iowa 310; People v. Winslow, 39 Mich. 473, 44 N. W. 711; Bargle v. 505; State v. Porter, 75 Mo. 171. United States, 2 Hayw. & H. 357, i See, supra, § 625; State t. Fed. Cas. No. 18229. Phelps, 41 Wash. 470, 84 Pac. 24. isDwyer v. State, 24 Tex. App. Money obtained, in what reia- 132, 5 S. W. 662; Scott v. State, tion, whether as a gift, a loan, or 27 Tex. App. 264, 11 S. W. 320; otherwise, need not be alleged.— State V. Green, 7 Wis. 676. Com. v. White, 24 Pa. Sup. Ct. 19 See: ILL. — Moore v. People, 178. 190 111. 331, 6 N. E. 535. TEX.— 2 ARK. — Burrow v. State, 12 White V. State, 3 Tex. App. 605; Ark. 65. CAL. — People v. Mc- Baker v. State, 14 Tex. App. 332; Kenna, 81 Cal. 158, 22 Pac. 488. Dwyer v. State, 24 Tex. App. 132, FLA. — Hamilton v. State, 16 Fla. 5 S. W. 662; Hardin v. State, 25 288. IND.— Keller v. State, 51 Ind. Tex. App. 74, 7 S. W. 534; Fer- 111, 1 Am. Cr. Rep. 211; Shaffer v. guson V. State, 25 Tex. App. 451, State, 82 Ind. 221; State v. Will- 8 S. W. 479. WIS.— State v. Green, iams, 103 Ind. 235, 6 Am. Cr. Rep. 7 Wis. 676. BNG.— R. v. Wickham, 256, 2 N. E. 585. MO.— State v. 10 Ad. & E. 34, 37 Eng. C. L. 43; Chunn, 19 Mo. 233; State v. Mc- R. V. Coulson, 1 Den. C. C. 592. Chesney, 90 Mo. 120, 7 Am. Cr. 20 State V. Blizzard, 70 Md. 385, Rep. 184, 1 S. W. 841; State v, 14 Am. St. Rep. 366, 17 Atl. 270; Pickett, 174 Mo. 663, 74 S. W. 844. Jules V. State, 85 Md. 305, 36 Atl. N. H. — State v. Parker, 43 N. H. 1027; People v. Clark, 10 Mich. 83. N. C— State v. Lambeth, 80 §635 FALSE PRETENSES. 851 Thus, an indictment or information is insufficient which, charges that accused was a common cheat and "did, by divers false pretenses and divers false tokens, cheat and defraud," etc.;* "by means of divers false, fraudulent and unlawful pretenses";* "designedly and by false pre- tenses and with intent to defraud," etc. ;^ "did unlaw- fully, knowingly and designedly, and by false and fraudu- lent representations and pretenses defraud" a named person out of his property, describing itf "falsely pre- tended" that certain property — e. g., a horse or a cow — ■ was sound,'' and the like, without alleging specifically N. C. 393; State v. Holmes, 82 N. C. 607. OHIO — In re Trick Game, 7 Ohio N. P., 5 Oliio S. & C. Dec. 572. PA. — Com. v. Hoover, 6 Lane. 129. TEX. — State v. Bag- gerly, 21 Tex. 757. VT.— State v. Johnson, 1 D. Chip. 129. Charging attempt to cheat and defraud by means of trick, decep- tion, false and fraudulent repre- sentations and statements, and a bogus metal, indictment held sufiB- cient without stating of what the "cheat," fraud, etc., consisted. — State V. Morgan, 112 Mo. 212, 20 S. W. 456. 3 State V. Johnson, 1 D. Chip. (Vt.) 129. 4 Burrow v. State, 12 Ark. 65. 5 Hamilton v. State, 16 Fla. 288. 6 People V. McKenna, 81 Cal. 158, 22 Pac. 488. 7 See, among other cases : IOWA— State v. Patty, 97 Iowa 373, 66 N. W. 727. KY.— Com. v. Watson, 146 Ky. 83, Ann. Cas. 1913C, 272, 142 S. W. 200; Hale v. Com., 151 Ky. 639, 152 S. W. 773. ME.— State v. Stanley, 64 Me. 157, 1 Am. St. Rep. 209. N. Y.— Wat- son V. People, 87 N. Y. 561, 41 Am. Rep. 397, affirming 26 Hun 76. N. C— State v. Holmes, 82 N. C. 607; State v. Mangum, 116 N. C. 998, 21 S. B. 189. PA.— Com. v. Hoover, 6 Lane. (Pa.) 129. S. C. — State V. Stone, 95 S. C. 390, 49 L. R. A. (N. S.) 574, 79 S. E. 108. Fraud in a horse trade charged, consisting in falsely representing the horse to be "sound," "with in- tent to cheat and defraud," held to be sufficient as alleging a misrep- resentation of a subsisting fact. — State V. Mangum, 116 N. C. 998, 21 S. E. 189. — Age of horse knowingly mis- represented. — State V. Holden, 2 Boyce (Del.) 429, 79 Atl. 215. — Identity of horse knowingly misrepresented. — State v. Mills, 17 Me. 211. Overstatement of miik- yield knowingly made to induce a trade. — Parks V. State, 94 Ga. 601, 20 S. E. 430. — Milk-yield as to future of cow traded is merely matter of opin- ion, and not false representations. —Miller v. State, 99 Ga. 207, 25 S. E. 169, distinguishing Parks v. State, 94 Ga. 601, 20 S. E. 430. Sheep represented as free from disease. — People v. Crissle, 4 Den. (N. Y.) 525. 852 CKIMINAL PROCEDURE, § 636 the facts constituting the false pretenses. And charging that accused falsely pretended and represented to a named person that a certain order or token in writing he then and there had, and which purported td be signed by another, authorizing accused to sell the interest of such signer in certain property in the county, merely charging a sale of the property by accused to such person alleged to have been defrauded, or a mere trans- fer of the order, is insufficient.* But it has been said that an indictment or information charging a conspiracy to obtain money from a named person "by false pre- tenses, and by false and privy tokens and subtle means and devices," need not state more specifically what such pretensions, tokens or devices were, the obtaining of the money on false pretenses being a crime under the stat- ute.® § 636. Confidence game and bunko STEERING. An indictment or information charging an at- tempt to obtain money by the use of the confidence game, in the language of the statute providing for the punish- ment of those who attempt to obtain money by the use of the confidence game, is sufficient to inform the accused of the exact charge against him, and the outer lines within which the evidence must be confined, and apprises him of what evidence he will be required to meet, without alleging all the acts constituting the offense, such as the manner of playing the game, the participants in the game, the amount of money lost, and the like ;^ and it is in the 8 staffer v. State, 82 Ind. 221. Maxwell v. People, 158 111. 248, 41 9 State V. Crowley, 41 Wis. 271, N. E. 995; Graham v. People, 181 2 Am. Cr. Rep. 33. 111. 477, 47 L. R. A. 731, 55 N. E. iCOLiO. — Lace v. People, 43 179; Du Boise v. People, 200 111. Colo. 199, 95 Pac. 302. ILL.— Mor- 157, 93 Am. St. Rep. 183, 65 N. E. ton V. People, 47 111. 468; Seacord 183; People v. Weil, 244 111. 176, V. People, 121 111. 623, 13 N. E. 91 N. E. 112; People v. Clark, 256 194; Loehr v. People, 132 111. 504, 111. 14, Ann. Cas. 1913E, 214, 99 24 N. E. 68; West v. People, 137 N. E. 866. MINN.— State v. Gray, 111. 189, 27 N. B. 34, 34 N. B. 254; 29 Minn. 142, 12 N. W. 455. MO.— § 637 FALSE PRETENSES. 853 discretion of the trial court as to whether or not it will allow or refuse a bill of particulars.^ Bunho steering game being charged, an indictment or information alleging the oft'ense in the language of the statute providing for the punishment of bunko steering, averring tha{ a person named was enticed to a certain place, and then and there "by duress or fraud" was com- pelled to part with money upon a foot race, or upon any other occasion, is insufficient, the facts constituting the nature of the fraud and duress not being set out,^ because the nature of the offense designated simply as "bunko steering" defines and describes the crime in generic terms, and when the crime is thus generically described and defined, the pleader must descend to the particulars.* § 637. Description of the false token. The general rules regarding the pleading of a written instru- ment, in order to be sufficient, where it is used as a means of procuring money or other property of another by false pretenses, have been set out,^ and it remains but to add in this place that the description of the written instrument, or other false token, must be sufficient to meet all the requirements of the rules of criminal plead- ing,2 and to give a few illustrations which, it is thought, state V. Jackson, 112 Mo. 585, 20 17 Tex. App. 178, 50 Am. Dec. 122. S. W. 674; State V. Edgen, 181 Mo. VA. — Boyd v. Com., 77 Va. 52. 582, 80 S. W. 942. FED.— Coffin v. FED. — United States v. .Cruik- Unlted States, 156 U. S. 432, 39 shank, 92 TJ. S. 542, 23 L. Ed. 588 ; L. Ed. 481, 15 Sup. Ct. Rep. 394. United States v. Carll, 105 U. S. 2 Lace V. People, 43 Colo. 199, 95 611, 26 L. Ed. 1135. Pac. 302. 1 See, supra, § 634. 3 Haughn v. State, 159 Ind. 413, 2 Among other cases, see: ILL. — 59 L. R. A. 789, 65 N. E. 287. Barton v. People, 136 111. 405, 25 4 Haughn v. State, 159 Ind. 413, Am. St. Rep. 375, 10 L. R. A. 302, 59 L. R. A. 789, 65 N. B. 287. See: 25 N. E. 776. IND.— State v. Lay- ARK.— State v. Graham, 38 Ark. man, 8,Blackf. 330; State v. Locke, 519. IND.— Bowles v. State, 13 35 Ind. 419; Keller v. State, 51 Ind. Ind. 427; Malone v. State, 14 Ind. Ill, 1 Am. Cr. Rep. 211. KAN.— 219; State v. Bruner, 111 Ind. 98, State v. Baker, 57 Kan. 541, 46 12 N. E. 103. TEX.— Burch v. Re- Pac. 947. MASS.— Com. v. Steven- public, 1 Tex. 608; Kerry v. State, son, 127 Mass. 446. MO.— State v. 854 CRIMINAL PROCEDURE. §637 will be helpful to the pleader. Thus, bank-bills charged as the means of procuring goods by false pretenses, it being alleged accused represented the bank-bills as good, an indictment or information charging the bank was in- solvent and the bank-bills worthless, sufficie:gtly describes the bills.^ A bank-check charged as the means of defraud- ing, indictment or information need not particularly de- scribe the check,* and an allegation in the indictment or information characterizing the check as "a false token" and "a false writing" is surplusage.® A chattel mortgage Barbee, 136 Mo. 440, 37 S. W. 1119. N. C— State v. Patillo, 11 N. C. (4 Hawks) 348. TEX.— State V. Dyer, 41 Tex. 520; Willis v. State, 24 Tex. App. 400, 6 S. W. 316; Hardin v. State, 25 Tex. App. 74, 7 S. W. 534; Ferguson v. State, 25 Tex. App. 451, 8 S. W. 479. 3 State V. Layman, 8 Blackt (Ind.) 330. 4 State V. Baker, 57 Kan. 541, 46 Pac. 947. Bank -check charged as the means oil obtaining money from one bank by falsely representing that accused had money in an- other bank upon which the check was drawn, indictment is suffi- cient, without alleging that the latter bank was incorporated. — Brown V. State, (Tex. Cr.) 43 S. W. 986. Bank-check alleged as the means of defrauding by procuring an- other to sign same through fraud- ulent representations, indictment or information purporting to give the representations and state- ments made by the accused, is not invalidated by the fact that such statements and representations are in the alternative. — State v. Carter, 112 Iowa 15, 83 N. W. 715. 5 Barton v. People, 135 111. 405, 25 Am. St. Rep. 375, 10 L. R. A. 302, 25 N. E. 776. Bank -check charged as the means of cheating by false pre- tense, an indictment or informa- tion alleging accused falsely repre- sented that he had money in the bank upon which the check was drawn, and by such representa- tions Induced a merchant to accept a check in payment, which was delivered, and further alleging that accused represented that he would give a check different from the one actually delivered, held not to amount to a charge of issuing such different check. — Barton v. People, 135 111. 405, 25 Am. St. Rep. 375, 10 L. R. A. 302, 25 N. E. 776. Bank - check charged as the means used in an attempt to de- fraud, accused representing he then and there had in his posses- sion, for the payment of money drawn by him in favor of the party attempted to be defrauded, by means of which he Intended to pay certain bills due from the said party to other persons, without further allegations, is Insufficient, as it falls to allege that accused § 637 FALSE PRETENSES. 855 alleged as the means used, an indictment or information charging that accused did not own the cattle specified, is not defective in failing to allege that the accused did not own other cattle upon which the mortgage was executed, or that the money loaned was not secured by other cat- tle;* but it has been held that an indictment failing to set out the mortgage in hsec verba, is fatally defective,'^ although there are authorities to the contrary.^ A coim- terfeit coin charged as the means of procuring goods by false pretenses, the indictment or information need not aver that the spurious coin was made like the genuine coin it represented, the word "counterfeit" being a suf- ficient allegation of that fact ;® and it need not be averred that the fraud was accomplished by passing the coin.^" A false certificate of stock charged as the means of defraud- ing, alleged to be false and forged, but represented by accused to be good, valid and a genuine certificate of stock, an indictment or information setting forth such certificate in hsec verba is good, notwithstanding the fact had or pretended to have any 74, 7 S. W. 534; Ferguson v. State, money in the hank on which the 25 Tex. App. 451, 8 S. W. 479. check was drawn; or that the Mortgage not set out, reason check was delivered, or posses- must be stated showing it to be sion or control over it obtained. — impossible to do so. — Ferguson v. Com. V. Stevenson, 127 Mass. 44«. State, 25 Tex. App. 451, 8 S. W. 6 Moore v. People, 190 m. 331, 479. 60 N. E. 535. 8 Chattel mortgage, or its pro- Chattel mortgage charged as the visions, need not be set out in means of defrauding by accused the indictment or information. — falsely representing that he was Moore v. People, 92 111. App. 137. the owner of "twenty-two steer » State v. Boon, 49 N. C. (4 cattle," the description of the Jones L.) 463. cattle held sufiacient. — State v. Counterfeit quarter of a dollar Hubbard, 170 Mo. 346, 70 S. W. charged as the means of cheating 883. by false pretenses, indictment or False representations as to own- information need not aver to what ership of cattle not contained in currency the genuine coin be- the mortgage, the indictment need longed. — State v. Boon, 49 N. C. not set out the mortgage. — Moore (4 Jones L.) 463. V. People, 190 111. 331, 60 N. E. 535. lo State v. Boon, 49 "N. C. (4 7 Hardin v. State, 25 Tex. App. Jones L.) 463. 856 CRIMINAL PEOCEDUEE. § 637 that the certificate is made out in the name of the de- frauded party;" indorsements on the certificate need not be set forth ;^2 neither need it be stated in what manner it could be used to deceive.^^ A false draft charged as the means by which accused secured property of the in- jured party, the indictment or information need not al- lege the draft to be due, where it appears from the instru- ment that it was due upon presentation.^* False weights charged as the means of cheating, indictment or informa- tion averring that accused used the same, "by artful and deceitful contrivances," to defraud named persons, suffi- ciently describes the false token and the manner of cheat- ing.^'' A note charged as the means of the false pretenses, indictment or information charging that the pretense was made to induce the party defrauded to become the surety thereon, but that, instead of becoming surety, he became the principal and made a note for the specified amount, payable to the accused, is bad for ambiguity and uncer- tainty; it must be direct and certain both as regards the party and the offense charged.**' A mortgage charged as the means of procuring goods by false pretenses, indict- ment or information setting forth the substance of the mortgage, is sufficient ;*'^ the pretense being that the real property covered by the mortgage was worth a desig- nated sum of money, and the allegation being that the real estate was not worth that amount of money, is in- sufficient ; the indictment or information must show that the real estate was not of sufficient value amply to secure the sum loaned.** And where the false pretense consists 11 Com. V. Coe, 115 Mass. 481. See Whitney v. State, 10 Ind. 404; 12 Com. V. Coe, 115 Mass. 481. Walker v. State, 23 Ind. 61; Com. 13 Com. y. Coe, 115 Mass. 481. ^- ^agowan, 58 Ky. (1 Mete.) 368, 71 Am. Dec. 480; People v. Gates, 14 State V. Cadwell, 79 Iowa ^3 ^^^^ ^^_ ^^ 3^^ 473, 44 N. W. 711. ,, Keller v. State, 51 Ind. 111. 15 People V. Fish, 4 Park. Cr. 1 Am. Cr. Rep. 211. Rep. (N. y.) 206. is In re Shotwell, 4 City Hall 10 State V. Locke, 35 Ind. 419. Reo. (N. Y.) 75. § 637 FALSE PRETENSES. 857 in representing that the property covered by the mort- gage is not subject to prior liens, an indictment or infor- mation charging that this representation was false and that the property was subject to prior liens, will be in- sufficient, if it does not set out and describe such prior liens.^" Overdrafts to a specified amount procured to be paid by a bank, for and on account of accused by his false representations as to the ownership of a note, an indict- ment or information must aver the date, amount and maturity of the note ; that the maker was, or was repre- sented by accused to be solvent ; that the overdrafts were authorized by reason of accused's representations, and give the dates, amounts and payees of such overdrafts, or it will be insufficient by reason of uncertainty.^** Promis- sory note charged as the means of procuring property by false pretenses, by representing that it was a draft, in- dictment or information ^dll be insufficient unless it dis- closes in what particular the instrument was defective f"^ for the reason that promissory notes are not public tokens, like bank notes, where the indictment does not aver that the instruments bore the resemblance of bank notes ;-^ and an indictment or information setting out in hsec verba a note apparently valid on its face, will be fatally defective, unless it also alleges the facts which render the instrument worthless.^® 19 Keller v. State, 51 Ind. Ill, 20 State v. Barbee, 136 Mo. 440, 1 Am. Or. Rep. 211. 37 S. W. 1119. False pretense in sale of mort- 21 State v. Dyer, 41 Tex. 520. gage charged, it seems that if the ^^^^ g.^^^ ^^ instrument al- real estate covered by the mort- j^^^^ ^^ ^^ ^^^ ^^^^^ ^^ cheating gage is sufficiently valuable amply j^y ^^y^^ pretenses, is immaterial, to secure the sum due on the ^1^^^.^ ^^^ instrument is valid.- mortgage, it is immaterial that state v. Dj-er, 41 Tex. 520. the accused represented the real estate to be very much more val- ^^ State v. PatlUo, 11 N. C. (4 uable than it actually was.— Keller Hawks) 348. V. State, 51 Ind. Ill, 1 Am. Cr. 23 Willis v. State, 24 Tex. App. Rep. 211. 400, 6 S. W. 316. 858 CRIMINAL PROCEDURE. §638 § 638. Eepeesentations as to financial con- dition. An indictment or information charging obtain- ing money, goods, or other property by means of false representations as to present financial condition and abil- ity to pay, must show that the false representations were made for the purpose, and with the intention, to induce the party defrauded to part with his money, goods, or other property,^ or to induce him to indorse or sign com- mercial paper for the benefit of accused, that the represen- tations were relied upon f that the accused thereby, and by reason of such false representations obtained the money, goods, or other property, or secured the desired signa- ture to commercial or other paper.^ It must also appear that the person defrauded was not in fault in relying upon such false representations, and that he exercised due business care and acted prudently.* Thus, where the 1 Under Washington Pen. Code, § 234, indictment or information otherwise sufficient is good with- out this allegation. — State v. Bok- lin, 14 Wash. 403, 44 Pac. 889. 2 See, infra, §640; Curtis v. State, 31 Tex. Cr. Rep. 39, 19 S. W. 604. 3 See, infra, § 642; State v. Pen- ley, 27 Conn. 587; State v. Connor, 110 Ind. 469, 11 N. E. 454. 4 Among other cases, see : IND. — Bonnell v. State, 64 Ind. 498; Jones v. State, 50 Ind. 473. IOWA— State v. McConkey, 49 Iowa 499. KY. — Com. v. Haughey, 60 Ky. (3 Mete.) 223; Com. v. Grady, 76 Ky. (13 Bush) 285, 26 Am. Rep. 192. ME]. — State v. Estes, 46 Me. 150. N. T.— People v. Stet- son, 4 Barb. 151; People v. Crissie, 4 Den. 525; People v. Williams, 4 Hill 9, 40 Am. Dec. 258; People v. Johnson, 12 Johns. 292; People v. Haynes, 11 Wend. 557; reversed on another point in 14 Wend. 546, 28 Am. Dec. 530; People v. Sully, Sheld. 17, 5 Park. Cr. Rep. 142. TENN. — State v. De Hart, 65 Tenn. (6 Baxt.) 222; Delaney v. State, 66 Tenn. (7 Baxt.) 28; Bowen v. State, 68 Tenn. (9 Baxt.) 45, 40 Am. Rep. 71. Compare: People v. Pray, 1 Mich. 69; Com. v. Henry, 22 Pa. St. 253; In re Greenough, 31 Vt. 279; Colbert v. State, 1 Tex. App. 314; and see, also, post, § 641, foot- note 5. "It may be difficult to draw a line which would exclude cases where common prudence would be a sufficient protection, still I do not think the statute should be so interpreted as to include cases where the representation was ab- surd or irrational, or where the party alleged to be defrauded had the means of detection at hand. The object of the statute, It is true, was to protect the weak and credulous against the wiles and § 639 FALSE PEETENSES. 859 accused obtained credit on a note lie owed upon the false and fraudulent pretense and representation that a large quantity" of tobacco, which the party defrauded had then purchased from the accused, would average in quality with a sample which accused then and there exhibited, the indictment was dismissed, the court saying that a common caution on the part of the person defrauded would have protected him from the injury;® and where accused fraudulently represented that he was the owner of certain realty, and that it was free from encum- brance, when as a matter of fact there was on record a mortgage executed by the accused, the court held that the indictment showed on its face that the party de- frauded had the means of detection of fraud in his hands which he failed, as an ordinarily prudent man, to exer- cise.® § 639. Relation to past events or existing state OF FACTS. False representations, to be indictable, must re- late to past events,'^ or be as to an existing and not as to a stratagems of the artful and cun- guarded against by common pru- ning. But this may be accom- dence, the weak and imbecile, the plished under an interpretation usual victims of false pretenses, which should require the repre- would be left unprotected." — sentation to be an artfully-con- State v. Mills, 17 Me. 211. trived story which would naturally have an effect upon the mind of the person addressed — one which would be equal to a false token or 6 Com. v. Grady, 76 Ky. (13 a false writing — an ingenious Bush) 285, 26 Am. Rep. 192. contrivance of unusual artifice, , „„„ „ ^,. „ 1 See, among other cases: Bur- against which common sagacity ^^ ^ ^„ _ and the exercise of ordinary cau- '°^ ^- ^'^'^' ^^ ^^"^^ ''' ^tate v. tion, would not be sufficient to ^agee, 11 Ind. 154; Keller r. guard" (obiter).— People v. Cris- State, 51 Ind. Ill, 1 Am. Cr. Rep. sie, 4 Den. (N. Y.) 525. 211; Glackan v. Com., 60 Ky. (3 "If the construction should be Mete.) 232; Dillingham v. State, narrowed to cases which might, be 5 Ohio St. 280. 5 Com. V. Haughey, 60 Ky. (3 Mete.) 223. 860 CRIMINAL PROCEDURE. §640 future^ state of facts,* and the indictment or information must set out the false pretenses complained of in such terms as to clearly show that they were false representa- tions by the accused of an existing state of facts, or clearly establish their relation to a past state of events, otherwise the indictment will be insufficient.* § 640. RELiAif CE ON PRETENSES. An iudictmont or information charging obtaining money or other property by means of false pretenses, if otherwise adequate, has been said to be sufficient if it alleges that the money or other property was obtained by the accused by means of the false pretenses, and with the fraudulent intent par- ticularly stated, without other averment that the owner relied upon and was induced thereby to part with his property,^ for the reason that it must necessarily be im- 2 T li u s where accused was charged with falsely representing that A was to give to him a stated amount, and that B was going to allow, a third person a stated amount of money weekly, for the benefit of his health, the indict- ment was held to he insufficient because it failed to state a case as to an existing state of facts. — R. v. Henshaw, 10 Jur. N. S. 595. 3 See, among other cases: Colly V. State, 55 Ala. 85; In re Snyder, 17 Kan. 542; State v. Evers, 49 Mo. 542; State v. Vorback, 66 Mo. 168; State v. King, 67 N. H. 219, 34 Atl. 461; People v. Blanchard, 90 N. Y. 314; In re Conger, 4 City Hall Rec. (N. Y.) 65; Com. v. Moore, 99 Pa. St. 570; Canter v. State, 75 Tenn. (7 Lea) 349; Allen V. State, 16 Tex. App. 150. 4 FLA. — Scarlett v. State, 25 Fla. 717. IND.— Clifford v. State, 56 Ind. 249; Bonnell v. State, 64 Ind. 498. KY.— Com. v. Haughey, 60 Ky. (3 Mete.) 223; Glackan v. Com., 60 Ky. (3 Mete.) 232. LA.— State V. Colly, 39 La. Ann. 841. N. C— State v. Phlfer, 65 N. C. 321; State v. Dickson, 88 N. C. 643; State v. Mangum, 116 N. C. 998, 21 S. E. 189. ENG.— R. v. Douglas, 1 Moo. C. C. 462; R. v. Henshaw, 9 Cox C. C. 472. 1 IOWA— State v. McConkey, 49 Iowa 499. MICH. — People v. Ja- cobs, 35 Mich. 36, 2 Am. Or. Rep. 102. MISS.— State v. Dodenhoff, 88 Miss. 277, 40 So. 641. N. H.— State V. King, 67 N. H. 219, 34 Atl. 461. OHIO— Norris v. State, 25 Ohio St. 217, 18 Am. Rep. 291, 2 Am. Cr. Rep. 85. TEX.— Baker V. State, 14 Tex. App. 332. WASH.— State v. Ryan, 34 Wash. 597, 76 Pac. 90. FED. — In re Strauss, 63 C. C. A. 99, 126 Fed. 327. An averment charging that the firm "relied on such false repre- sentations" is a sufficient allega- §640 FALSE PRETENSES. 861 plied from suel. allegations that lie was induced to part with his money or other property by such false represen- tations.^ However, there is a line of cases which seem to hold — and it would probably be the better practice to so plead — that there must be some sort of an allegation that the person defrauded relied on the false pretenses as true;* that he was deceived thereby;* that by means of such false pretenses he was induced to part with the pos- tion that they believed them to he true. — State v. Williams, 103 Ind. 235, 6 Am. Cr. Rep. 256. The statement that accused by means of the false pretenses ob- tained the money is a sufficient allegation of the fact. — State v. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. In Norris v. State, 25 Ohio St. 217, 18 Am. Rep. 291, 2 Am. Cr. Rep. 85, Gllmore, J., in discussing the objection that the indictment ■was insufficient because it did not allege that the party defrauded relied upon the false pretenses and representations, and was in- duced by means thereof to part with his property, said: "We have been referred to quite a number of authorities supposed to support this objection, which, on examina- tion, are found not to do so. Two questions are discussed in them. First, as to whether the offenses charged are within the statute, of wliich no notice need be taken; and second, whether the indict- ment in the case then under con- sideration was good. And in not a single case examined is it found that an indictment, otherwise good, was held bad for a want of the averments in question," — citing and analyzing, and showing to be in harmony with his deci- sion, the cases of State v. Phil- brick, 31 Me. 401, and Com. v. Strain. 51 Mass. (10 Mete.) 521. 2 State V. McConkey, 49 Iowa 499; People v. Jacobs, 35 Mich. 36, 2 Am. Cr. Rep. 102; State v. Bloodsworth, 25 Ore. 83, 34 Pac. 1023; State v. Ryan, 34 Wash. 597, 76 Pac. 90. Where the indictment charges that the accused obtained money by means of certain false repre- sentations there is sufficient im. plication that the prosecutor was induced to part with his money through his reliance on the repre- sentations. — State V. Bloodsworth, 25 Ore. 83, 34 Pac. 1023. 3 FLA. — Strickland v. State, 51 Fla. 129, 40 So. 178. IND.— Jones V. State, 50 Ind. 473, 1 Am. Cr. Rep. 218. MONT.— State v. Phil- lips, 36 Mont. 112, 92 Pac. 299. N. Y. — Clark v. People, 2 Lans. 329. OKLA.— Taylor v. Territory, 2 Okla. Cr. 1, 99 Pac. 628. TEX.— Johnson v. State, 57 Tex. Cr. Rep. 347, 123 S. W. 143. Where an attempt is charged it Is not necessary to allege that the person intended to be defrauded believed the representations, that being immaterial. — State v. Phil- lips, 36 Mont. 112, 92 Pac. 299. 4 Cook V. State, 51 Fla. 36, 40 So. 490; Strickland v. State, 51 Fla. 129, 40 So. 178. 862 CRIMINAL PROCEDURE. §640 session of the property acquired by the accused,^ and that an indictment or information which fails so to allege will be held to be bad on a motion to quash,* or on a gen- eral demurrer^ 5 See, among other cases dis- cussing this question pro and con: ALA. — Cowles v. State, 50 Ala. 454 ; Copeland v. State, 97 Ala. 30, 12 So. 181; Tennyson v. State, 97 Ala. 78, 12 So. 391. CONN.— State V. Penley, 27 Conn. 587. FLA. — Ladd V. State, 17 Fla. 215; Pendry V. State, 18 Fla. 191. IND.— John- son T. State, 11 Ind. 481; State v. Orvis, 13 Ind. 569; Todd v. State, 31 Ind. 514; Jones v. State, 50 Ind. 473 ; Clifford v. State, 56 Ind. 245; Wagoner v. State, 90 Ind. 504; State v. Williams, 103 Ind. 235, 6 Am. Cr. Rep. 256, 2 N. B. 585; State v. Connor, 110 Ind. 469, 11 N. B. 454. IOWA — State v. Dowe, 27 Iowa 273, 1 Am. Rep. 271; State v. Nelmeier, 66 Iowa 634, 24 N. W. 247. KAN.— State V. Metsch, 37 Kan. 222, 15 Pac. 251. MB.— State v. Philbrick, 31 Me. 401. MASS.— Com. v. Har- ley, 48 Mass. (7 Mete.) 462; Com. V. Strain, 51 Mass. (10 Mete.) 521; Com. V. Lannan, 83 Mass. (1 Allen) 590; Com. v. Goddard, 86 Mass. (4 Allen) 321; Com. v. Jeff- ries, 89 Mass. (7 Allen) 548, 83 Am. Dec. 712; Com. v. Lincoln, 93 Mass. (11 Allen) 233; Com. v. Hooper, 104 Mass. 549; Com. v. Dean, 110 Mass. 64; Com. v. Coe, 115 Mass. 481; Com. v. Parmenter, 121 Mass. 354; Com. v. Stevenson, 127 Mass. 446; Com. v. Howe, 132 Mass. 250; Com. v. Lee, 149 Mass. 179, 21 N. E. 299; Com. v. Dun- leay, 153 Mass. 330, 26 N. E. 870. MISS. — Enders v. People, 20 Mich. 233; People v. Cline, 44 Midi. 290, 6 N. W. 671; People v. Brown, 71 Mich. 296, 38 N. W. 916. MINN.— State V. Thaden, 43 Minn. 325, 45 N. W. 447; State v. Butler, 47 Minn. 483, 50 N. W. 532. MISS. — Denley v. State, 12 So. 698. MO. — State v. Bonnell, 46 Mo. 395; State v. Evers, 49 Mo. 542; State v. Saunders, 63 Mo. 482; State v. Vorbaek, 66 Mo. 168; State v. Smallwood, 68 Mo. 192. MONT. — Territory v. Under- wood, 8 Mont. 131. NEB. — Cowan V. State, 22 Neb. 519, 35 N. W. 405. N. Y.— People v. Rice, 128 N. T. 649, affirming 13 N. Y. Supp. 161; People v. Higbie, 66 Barb. 131; People v. JefCerey, 82 Hun 409, 9 N. Y. Cr. Rep. 419, 31 N. Y. Supp. 267; Clark v. People, 2 Lans. 329; People v. Herrick, 13 Wend. 88; People v. Gates, 13 Wend. 311; People v. Conger, 1 Wheel. Cr. Cas. 448. ORE.— State V. Bloodsworth, 25 Ore. 83, 34 Pac. 1023. TENN.— State v. Tate, 25 Tenn. (6 Humph.) 424. TEX.- Ervin© v. State, 11 Tex. App. 536; Lutton V. State, 14 Tex. App. 518 ; Mathena v. State, 15 Tex. App. 473; Hightower v. State, 23 Tex. App. 451, 5 S. W. 343; Curtis v. State, 31 Tex. Cr. Rep. 39, 19 S. W. 604. ■ W. VA.— State v. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. WIS.— State V. Green, 7 Wis. 676. WYO. — Haines v. Territory, 3 Wyo. 168. BNG.— R. v. Reed, 7 Car. & P. 849, 32 Eng. C. L. 904. 6 Jones V. State, 50 Ind. 473, 1 Am. Cr. Rep. 218. 7 Taylor v. Territory. 2 Okla. Cr. Rep. 1, 99 Pac. 628. §G41 FALSE PRETENSES. 863 § 641. Representations as inducing cause. An in- dictment or information charging obtaining money or other property by false pretenses must show/ and should directly aver,^ that the injured party was induced to part with his money or property because of the false pre- tenses on the part of the accused.^ It seems that where the facts recited in the indictment or information show upon their face that they are capable of defrauding, and it is charged that the accused did in fact, intentionally and wickedly defraud, then it is unnecessary to aver that the pretenses were capable of defrauding,* and that the indictment or information need not show that the person defrauded acted as a prudent man,^ although there are authorities to the contrary.* Inducement and reliance required to attach criminal liability to the accused making the false representations 1 Not necessary to allege in ex- press terms, according to some authorities, that the party de- frauded relied upon the false rep- resentations made, hut there must be an allegation that he was in- duced by such representations to part with his property. — People v. Jacobs, 35 Mich. 36, 2 Am. Or. Rep. 102. 2 "Relied on such false repre- sentations," Is a sufficient showing that the party defrauded believed such representations, and that they were the Inducing cause. See State V. Williams, 103 Ind. 235, 6 Am. Or. Rep. 256, 2 N. B. 585. 3FLA.— Ladd v. State, 17 Fla. 215; Pendry v. State, 18 Fla. 191. IND.— State v. Williams, 103 Ind. 235, 6 Am. Or. Rep. 256, 2 N. E. 585. MICH. — Enders v. People, 20 Mich. 233. MISS. — State v. Free- man, 103 Miss. 764, 60 So. 774. N. J.— State V. Tomlin, 29 N. J. L. (5 Dutch.) 13. N. Y.— Clark v. People, 2 Lans. 329. TEX. — ^Ervin V. State, 11 Tex. App. 536; High- tower v. State, 23 Tex. App. 451, 5 S. W. 343. W. VA.— State v. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. WIS.— State v. Green, 7 Wis. 676. A contrary doctrine is main- tained in Norris v. State, 25 Ohio St. 217, 18 Am. Rep. 291, 2 Am. Cr. Rep. 85, and the line of cases cited in the first part of § 640, supra. 4 Meek v. State, 117 Ala. 116, 23 So. 155; Com. v. Beckett, 119 Ky. 817, 27 Ky. L. Rep. 265, 115 Am. St. Rep. 285, 68 L. R. A. 638, 84 S. W. 758. 6 People T. Henninger, 20 Cal. ,App. 79, 128 Pac. 352. Guilt of the accused does not depend upon the degree of folly or credulity of the party defrauded. — People V. Cummings, 123 Cal. 269, 55 Pac. 898. 6 See, supra, § 638, authorities in footnote 4. 864 CRIMINAL PEOCEDUEE. §641 complained of, is not a constant quantity; some of the decisions, under the peculiarities of local statutes, hold that the false pretenses set out in the indictment or infor- mation must be such as "had a tendency" to induce the party defrauded to part with his money or property;'' others hold that the false pretenses must be the sole inducing cause.^ The better doctrine is thought to be the middle course of decision, which holds that the indictment or information will be sufficient when it appears there- from that the false pretenses or representations made by the accused were the decisive cause, either in and of them- selves, or in co-operation with other matters, in influ- encing the party defrauded to part with his money or other property," and that this fact may be inferred from 7 See Roper v. State, 58 N. J. L. 420, 33 Atl. 969. False token must have been cal- culated to deceive according to the capacity of the person to whom presented to detect Its falsity imder the circumstances. — ^Com. v. Beckett, 119 Ky. 817, 115 Am. St. Rep. 285, 68 L. R. A. 638, 27 Ky. L. Rep. 265, 84 S. W. 758. See, also. Com. v. Ferguson, 135 Ky. 39, 24 L. R. A. (N. S.) 1104, 121 S. W. 967; McDowell v. Com., 136 Ky. 12, 123 S. W. 313. A false token that might be cal- culated to deceive a blind man, or a man in the dark, or a child, would not necessarily be a false token when used upon one who could see and who had mature judgment. — Peckham v. State, (Tex. Cr.) 28 S. W. 532. False representation or false token not within the statute unless calculated to deceive is true in a limited sense, only, "for the stat- ute was not designed to protect only the ordinarily wary and pru- dent, who, in spite of their vigi- lance, might be overreached by the clever rogue, but must have been aimed at all scoundreldom who, by false statements or false tokens, succeeded in hoodwinking the unwary, or even the foolish, into parting with their property." —Com. v. Beckett, 119 Ky. 817, 115 Am. St. Rep. 285, 68 L. R. A. 638, 27 Ky. L. Rep. 265, 84 S. W. 758. Absurd and irrational pretenses, not ordi/arily calculated to de- ceive one of the intellect and ca- pacity of one upon whom it may have been practiced, it seems, will not be a false pretense within the statute. — See Woodbury v. State, 69 Ala. 242, 44 Am. Rep. 515; Peo- ple v. Crissie, 4 Den. (N. Y.) 525. 8 People V. Conger, 1 Wheel. Cr. Cas. (N. Y.) 448; People v. Dal- ton, 2 Wheel. Cr. Cas. (N. Y.) 161. 9 See: MASS.— Com. v. Drew, 36 Mass. (19 Pick.) 179. MISS.— Smith V. State, 53 Miss. 513. N. J. — State V. Thatcher, 35 N. J. L. (6 Vr.) 445. N. Y.— People V. Haynes, 11 Wend. 557; People § Wl FALSE PRETENSES. 865 an allegation that the defrauded person was induced by the false pretenses to consummate the transaction and part with his property.^" Connection betiveen the false pretenses and the pay- ment of the price contracted or the delivery of the prop- erty must be set forth in the indictment or information/^ and must be such as to show why or how the person de frauded was induced by means of the false pretenses to V. Herrick, 13 Wend. 87. ENG.— R. V. Eagleton, 33 Eng. L. & Eq. 540. 10 See, supra, § 640, and particu- larly authorities in footnote 1; also: CONN.— State v. Penley, 27 Conn. 587. IND.— Clifford v. State, 56 Ind. 245; State v. Williams, 103 Ind. 235, 6 Am. Cr. Rep. 256, 2 N. E. 585. IOWA— State v. Mc- Conkey, 49 Iowa 499. MICH.— Enders v. People, 20 Mich. 233; People V. Jacobs, 35 Mich. 36, 2 Am. Cr. Rep. 102. N. J.— State v. Vanderbilt, 27 N. J. L. (3 Dutch.) 328. N. Y.— People v. Rice, 128 N. Y. 649, affirming 13 N. Y. Supp. 161; People v. Jefferey, 82 Hun 409, 9 N. Y. Cr. Rep. 419, 31 N. Y. Supp. 267. ORE. — State v. Bloods- worth, 25 Ore. 83, 34 Pac. 1023. TEX. — Baker v. State, 14 Tex. App. 332. W. VA.— State v. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. 11 ALA. — Copeland v. State, 97 A'la. 30, 12 So. 181. ARK.— Rob- erts V. State, 85 Ark. 435, 108 S. W. 842. .CAL.— People v. White, 7 Cal. App. 99, 93 Pac. 683; People V. Kahler, 26 Cal. App. 449, 147 Pac. 228; People v. Canfleld, 28 Cal. App. 792, 154 Pac. 33. FLA.- Jones V. State, 22 Fla. 532. ILL.— Simmons v. People, 187 111. 327, 58 N. E. 384, reversing 88 111. App. 334. IND.— State v. Williams, 103 I. Grim. Proc. — 55 Ind. 235, 6 Am. Cr. Rep. 256, 2 N. E. 585- State v. Miller, 153 Ind. 229, 15 Am. Cr. Rep. 231, 54 N. E. 808; Campbell v. State, 154 Ind. 309, 56 N. E. 665. ME.— State V. Philbrick, 31 Me. 401. MASS.— Com. V. Strain, 51 Mass. (10 Mete.) 521;. Com. v. Dunleay, 153 Mass. 330; 26 N. E. 870. MICH.— People V. McAllister, 49 Mich. 12, 12 N. W. 891; People v. Brown, 71 Mich. 296, 38 N. W. 916. MISS.— Denley v. State, 12 So. 698. MO.— State v. Clay, 100 Mo. 571, 13 S. W. 827. NEB.— Moline v. State, 67 Neb. 164, 93 N. W. 228. N. J.— Roper v. State, 58 N. J. L. 420, 33 Atl. 969. N. Y.— People v. Gates, 13 Wend. 311. N. C— State V. Fitzgerald, 18 N. C. 408. OHIO— Redmond v. State, 35 Ohio St. 81. TEX.— State v. Baggerly, 21 Tex. 757; Curtis v. State, 31 Tex. Cr. Rep. 39, 19 S. W. 604; Hurst v. State, 39 Tex. Cr. Rep. 196, 45 S. W. 573. There must be alleged some nat-, ural connection between the false pretenses and the delivery of the money or property, and a failure to so allege is a defect that is not cured by verdict. — ^People v. White, 7 Cal. App. 99, 93 Pac. 683. It may, however, be sufficient to aver such facts from which the connection between the pretense 866 CRIMINAL PEOCEDURE. §642 part with Ms money or property,^^ it being insufficient merely to allege that the representations induced the de- frauded party to part with his money or property,^* al- though there are well-reasoned cases holding it to be suffi- cient simply to aver the obtaining of the property by means of the false pretenses.^* § 642. Damage to or loss by prosbctjtok. We have already seen that it must appear from the indictment or information that the false pretenses were the means by which accused obtained the money or other property,* and that it is insufficient to allege that the person defrauded was, by reliance on the pretenses, induced and the obtaining of the property can be inferred. — People v. Can- field, 28 Cal. App. 792, 154 Pac. 33. 12 ILL. — Simmons v. People, 187 111. 327, 58 N. E. 384. IND.— Jones V. State, 50 Ind. 473, 1 Am. Cr. Rep. 218 ; Johnson v. State, 75 Ind. 553. MICH.— Enders v. People, 20 Mich. 233. TEX.— State v. Bag- gerly, 21 Tex. 757. WIS.— State v. Green, 7 Wis. 676. Where the contract into which the person was sought to be de- frauded was not set out in the indictment, it will be held bad on a motion to quash. — Jones v. State, 50 Ind. 473, 1 Am. Cr. Rep. 218. 13 State V. Whedbee, 152 N. C. 770, 27 L. R. A. (N S.) 363, 67 S. B. 60. 14 Com. V. Hulbert, 53 Mass. (12 Mete.) 446; State v. Butler, 47 Minn. 483, 50 N. W. 532; Norris V. State, 25 Ohio St. 217, 18 Am. Rep. 291, 2 Am. Cr. Rep. 85; State V. Bokien, 14 Wash. 403, 44 Pac. 889. 1 See, supra, § 634; also: ALA. — Tennyson v. State, 97 Ala. 78, 12 So. 391. FLA. — Jones v. State, 22 Fla. 532; Connor v. State, 29 Fla. 455, 30 Am. St Rep. 176, 10 So. 30. GA. — Jackson v. State, 118 Ga. 125, 44 S. E. 833. IND.— Abbott v. State, 59 Ind. 70; State v. O'Con- nor, 110 Ind. 469, 11 N. E. 454. MISS. — State v. Mortimer, 82 Miss. 443, 34 So. 214. MO.— State v. Evers, 49 Mo. 542; State v. Saun- ders, 63 Mo. 482; State v. Pickett, 174 Mo. 663, 74 S. W. 844. NEV.— In re Waterman, 29 Nev. 288, 13 Ann. Gas. 926, 11 L. R. A. (N. S.) 424. OHIO— Horton v. State, 85 Ohio St. 13, Ann. Gas. 1913B, 90, 39 L. R. A. (N. S.) 423, 96 N. E. 797. OKLA. — Taylor v. Territory, 2 Okla. Cr. 1, 99 Pac. 628. TEX.— White V. State, 3 Tex. App. 605; Mathena v. State, 15 Tex. App. 473; Hlghtower v. State, 23 Tex. App. 451, 5 S. W. 343; Nasets v. State, (Tex. Or.) 32 S. W. 698; Cummings v. State, 36 Tex. Cr. Rep. 152, 36 S. W. 266. WIS.— State V. Green, 7 Wis. 676. § C-12 FALSE PKETENSES. 867 to part with, and did part with his ownership.^ It is held in some jurisdictions that the indictment or information need not charge an actual pecimiary loss or damage to the person to whom the false pre- tenses were presented,* for the reason that one may be actually defrauded without having suffered a pecu- niary loss when he received something substantially different from that which he would have received had the representations in relation thereto been true.* However, there are other cases which hold that the in- dictment or information must show that the deceitful means caused pecuniary loss to the prosecutor.^ The better doctrine is thought to be that the indictment or information will be insufficient which fails to show that the prosecutor suffered some legal injury, as that term is understood in the law of false pretense.® However, it is not essential that legal injury be alleged in specific terms; if the allegations are such as to warrant the in- ference of injury, it will be sufficient.'' Thus, an aver- ment that by means of false pretenses charged, accused secured the signature of the prosecutor to a deed of grant 2 Connor v. State, 29 Fla. 455, 4 Stoltz v. People, 59 Colo. 342, 30 Am. St. Rep. 126, 10 So. 891. 148 Pac. 865. insufficient allegation: An alle- 5 Busby v. State, 120 Ga. 858. gation that the person defrauded, ^g g ^ 3^^. g^^^jj ^ g^ or owner of the property, or his t j ,.no /-. r^^ ^ „. ^ . , J • Ind. 498; Graves v. State, 31 Tex. agent, was, by reason of and in ' reliance upon false pretenses of a ^^- ®^' ^^ ^- ^- ^^^• defendant, induced to part with -A^n averment that it was a "war- and did part with their ownership ranty deed" to which it was sought in the money or other property is to falsely obtain the signature not equivalent to an allegation shows that it may prejudice the that the defendants obtained the prosecutor. — State v. Butler, 47 money by or through such pre- Minn. 483, 50 N. W. 532. tenses or at all. — Connor v. State, 29 Fla. 455, 30 Am. St. Rep. 126, 10 So. 891. 6Bonnell v. State, 64 Ind. 498; West V. State, 63 Neb. 257, 88 3 Stoltz V. People, 59 Colo. 342, N. W. 503; Graves y. State, 31 148 Pac. 865; West v. State, 63 Tex. Cr. Rep. 65, 19 S. W. 895. Neb. 257, 88 N. W. 503; People v. 7 West v. State, 63 Neb. 257, 88 Higbee, 66 Barb. (N. Y.) 131. N. W. 503. 868 CRIMINAL PEOCEDURE. §643 with -warranty, sufficiently shows that the person signing might be prejudiced thereby;^ and where the charge is of having obtained a signature to a promissory note by means of false pretenses, it is not necessary to allege that the party signing was injured, for the reason that it suffi- ciently appears in the indictment that the promissory note, on its face, was an instrument calculated to preju- dice the prosecutor.® § 643. Pboperty, etc., obtained— Descbiptiost of. An indictment or information charging the accused with hav- ing obtained money or other property, or the signature of the party defrauded, must contain a description of the property alleged to have been obtained, or the instru- ment alleged to have been signed,^ and this description must be of sufficient certainty and particularity to enable 8 state V. Butler, 47 Minn. 483,, 50 N. W. 582. 9 People V. Crissie, 4 Den. (N. Y.) 525. 1 FLA.— Ladd v. State, 17 Fla. 215. INC.— Markle v. State, 3 Ind. 535; Smith v. State, 33 Ind. 159. MASS. — Com. V. Walker, 108 Mass. 309; Com. v. Howe, 132 Mass. 250. MO.— State v. Crocker, 95 Mo. 389, 8 S. W. 422; State v. Clay, 100 Mo. 571, 13 S. W. 827; State V. Stowe, 132 Mo. 199, 33 S. W. 799. N. J. — Hagerman v. State, 54 N. J. L. 104, 23 Atl. 357. N. Y. — People v. Parish, 4 Den. 153 ; People v. Conger, 1 Wheel. Cr. Cas. 448. N. C— State v. Burrows, 3?! N. C. (11 Ired. L.) 477; State v. Reese, 83 N. C. 637. OHIO— Red- mond V. State, 35 Ohio St. 81. PA. — Com. V. France, 2 Brews. 568. TEX.— Resales v. State, 22 Tex. App. 673. VA.— Leftwich v. Com., 61 Va. (20 Gratt.) 716. W. VA.— State V. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. WIS.— State V. Black, 75 Wis. 490, 44 N. W. 635. Contract under which property obtained being simply a means to the end desired, the property ob- tained, and not the contract under which obtained, should be de- scribed in the Indictment. — People V. Martin, 102 Cal. 558, 36 Pac. 952. Copy of bill containing names, quantities, prices, and amount, in figures, using abbreviations known to the trade only, is Insufficient description. — People v. Conger, 1 Wheel. Cr. Cas. (N. Y.) 448. Compare: In re Conger, 4 City Hall Rec. (N. Y.) 65. House moldings, inside doors, corner blocks, and finishing boards for houses, held to be a sufficient description . of the property ob- tained. — Hagerman v. State, 54 N. J. L. 104, 23 Atl. 357. §643 FALSE PRETENSES. 869 the accused to make his defense, and the court and jury to determine whether the property disclosed in the evi- dence is the property set out in tiie indictment.^ Some of the cases hold that the description must be made with the same particularity that would be required in an in- dictment for a larceny of such property;* other cases are to the effect that the indictment or information may describe the property in the language used by the ac- cused in making the false pretenses.* However, the de- scription of the property should be reasonably certain,® and as particular as the case will admit of.* This de- 2 People V. Conger, 1 Wheel. Cr. Cas. (N. y.) 44S; State v. Reese, 83 N. C. 637; State v. Kube, 20 Wis. 217, 91 Am. Dec. 390. 3 ARK.— Maxey v. State, 85 Ark. 499, 108 S. W. 1135. FLA.— Sulli- van V. State, 44 Pla. 155, 32 So. 106. IND.— Markle v. State, 3 Ind. 535; Smith, v. State, 33 Ind. 159. NBV. — In re Waterman, 29 Nev. 2SS, 13 Ann. Cas. 926, 11 L. R. A. (N. S.) 424, 89 Pac. 291. N. Y.— People V. Conger, 1 Wheel. Cr. Cas. 448. N. C— State v. Reese, 83 N. C. 637. OHIO— Redmond v. State, 35 Ohio St. 81. VA.— Left- wich V. Com., 61 Va. (20 Gratt.) 716. W. VA.— State v. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. AVIS.- State V. Kuhe, 20 Wis. 217, 91 Am. Dec. 390; State v. Black, 75 Wis. 490, 44 N. W. 635. Description of the goods as "a large amount of dry and fancy goods" of a stated value is too indefinite. — Appleby v. State, 63 N. J. L. 526, 42 Atl. 847. Describing the property ob- tained as "a certain lot of dry goods" is insufficient. — Redmond v. State, 35 Ohio St. 81. A description of the money as "divers United States treasury notes and divers national bank notes, the denomination of which treasury notes and national bank notes were to the jurors unknown, amounting in the whole to the sum of one hundred and fl>ty-eight dollars, and of the value of one hundred and fifty-eight dollars, the money and property of the said B. R. C," is sufficient. — State v. Hurst, 11 W. Va. 100, 3 Am. Or. Rep. 100. 4 State V. Hubbard, 170 Mo. 350, 70 S. W. 883; State v. Loesch, (Mo.) 180 S. W. 875. Description of property forms a part of the false pretenses and representations, and the indict- ment may set out the description of the property exactly as made by the defendant, regardless of any uncertainty therein. — People V. Nesbitt, 102 Cal. 327, 36 Pac. 654. 6 Com. V. France, 2 Brews. (Pa.) 568. « Hagerman v. State, 54 N. J. L. 104, 23 Atl. 357; State v. Reese, 83 N. C. 637; Baker v. State, 31 Ohio St. 314; R. v. McQuarrie, 22 Up. Can. Q. B. 600. 870 CEIMINAL PEOCEDURE. §644 scription need not be by the legal name of the article,'' and should not be in the alternative.* §644. Money, batstk-bili^s, etc. Where the prop- erty charged in an indictment or information to have been obtained by false pretenses, consists of money, either coin or bank-bills, there is a line of cases holding that the money must be described -svith the certainty and particularity required in an indictment or information charging the larceny of such money ;^ but the weight of decision, and the better doctrine, is to the effect that it is sufficient to describe the money as a certain amount of lawful money,^ without setting out the character, denomi- 7 state V. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. 8 Com. V. France, 2 Brews. (Pa.) 568. 1 ARK.— Barton v. State, 29 Ark. 68; Treadaway v. State, 37 Ark. 443; Jamison v. State, 37 Ark. 445, 40 Am. Rep. 103 (this point omitted by editor) ; Cain v. State, 58 Ark. 43, 22 S. W. 954. ET:,A.— Sullivan v. State, 44 Fla. 155, 32 So. 106. IND.— Smith v. State, 33 Ind. 159. MO. — State v. Kroeger, 74 Mo. 530. VA.— Leftwich v. Com., 61 Va. (20 (Jratt.) 716. 2 ALA.— Oliver v. State, 37 Ala. 134. MASS.— Com. v. Lincoln, 93 Mass. (11 Allen) 233. N. Y.— Peo- ple V. Dimick, 107 N. T. 13, 1^ N. E. 178 ; People v. Smith, 5 Park. Cr. Rep. 490. N. C. — State v. Reese, 83 N. C. 637. WASH.— State v. Knowlton, 11 Wash. 512, 39 Pac. 966. W. VA.— State v. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. ENG.— R. V. Brown, 2 Cox C. C. 348. "A package of money containing the sum of sixty dollars in bank- bills," held to be a sufficient de- scription, bank-bills which are current as a medium of exchange being money. — State v. Kube, 20 Wis. 217, 91 Am. Dec 390. It is sufficient to describe the money as of a certain sum, al- leging it to be of a kind and description unknown to the grand jury. — People v. Dimick, 107 N. Y. 13, 14 N. E. 178. By statute in Virginia it Is suffi- cient to describe the money as "United States currency," or its equivalent, "national currency of the United States." This statute was passed in order to get around the decision of the supreme court in the case of Leftwich v. Com., .61 Va. (20 Graft.) 716; Dull v. Com., 66 Va. (25 Graft.) 965. "Divers United States treasury notes and national bank-notes, and fractional currency notes, amount- ing in the whole to one hundred fifty-eight dollars," etc., held to be good.— State v. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. See Com. v. Swlnney, 3 Va. (1 Va. Cas.) 146, 5 Am. Dec. 512, in which it was held that a descrip- §645 FALSE PRETENSES. 871 nation, or kind of money obtained,* but it must be de- scribed as money and not as "goods."* There are also cases holding that the indictment or information . mnst state whether the money was delivered to the accused as a loan, a gift, or otherwise,^ but it is thought that the better doctrine is that the nature of the possession need not be stated.* — "Written iitsteumbnts. We have alreadv §645. - discussed the methods of describing in an indictment or information, charging the procuring of money or Tiron- erty by false pretenses, a written instrument which is the basis of the false pretenses and of the fraud com- plained of .^ Where the obtaining of a signature to a writ- ten instrument is the injury complained of, the same as in those cases in which the thing obtained is a written instrument, the instrument need not be set out in hsec verba,^ it being sufficient to indicate the nature, char- tion of "one hundred dollars In a note of the Bank of Virginia," WHS not good on the ground, it would seem, that the bank-note was not money in the sense in which that word is used in stat- utes relating to false pretenses. 3 Com. V. Lincoln, 93 Mass. (11 Allen) 233; State v. Knowlton, 11 Wash. 512, 39 Pac. 966. A statement in the indictment that the number of coins or bank- notes stolen were to the grand jurors unknown would dispense with the statement of their num- ber and render the indictment good. — State v. Hurst, 11 W. Va. 54, 3 Am. Cr. Rep. 100. Thus in Haskins v. People, 16 N. Y. 344, the description of the property stolen in the indictment was, "bank-bills of banks, to the jurors unknown, and of a number and denomination to the jurors unknown, of the value of six hun- dred dollars; silver coin, current money of the state of New York, of a denomination to the jurors unknown, of the value of fifty dol- lars; gold coin, current money of the state of New York, of a de- nomination to the jurors unknown, of the value of fifty dollars," — and this was held by the court to be sufficient description. 4 Schleisinger v. State, 11 Ohio St. 669. Certificate of deposit is not money, and description of it as such will be bad. — Com. v. Howe, 132 Mass. 250. . 6 Com. V. Adley, 1 Pears. (Pa.) 62. 6 State V. Williams, 14 Mo. App. 591. 1 See, supra, § 634. 2 State V. Carter, 112 Iowa 115, 83 N. W. 715; Com. v. Coe, 115 872 CRIMINAL PROCEDURE. § 646 acter and contents thereof;* and when the substance of the instrument can not be set out, an excuse or reason therefor must be alleged.* That the indictment may be good, however, there must be a description of sufficient definiteness and certainty to identify the instrument when it is introduced in evidence.^ Where the indictment charges the obtaining of a "bill of sale or mortgage of personal property," it must give the purport thereof, or set it out, in order that there can be no mistake as to the identification of the instrument with that produced in evidence;® but where a check given was only a step in the transaction, or an incident of the offense, a particu- lar description of the check is not indispensable.'^ § 646. OwNEKSHip OF MONEY OE PROPERTY. Au in- dictment or information charging obtaining money or other property by means of false pretenses, must cor- rectly state the ownership, in some person, of such money Mass. 481; People v. Peckens, 12 was then, and there of the value App. Div. (N. Y.) 626, 43 N. Y. of thirty-four dollars and fifty-one Supp. 1160; affirmed, 153 N. Y. cents," does not sufficiently de- 576, 12 N. Y. Cr. Rep. 433, 47 N. E. scribe the check. — Bonnell v. 883. State, 64 Ind. 498. 3 Oliver v. State, 37 Ala. 134; The description as "a check and State V. Ryan, 34 Wash. 597, 76 order for the payment of money" Pac. 90. is sufficient. — Com. v. Coe, 115 The instrument ought not to be Mass. 481. described by name alone. Its sub- Particulars of the contract by stance or tenor should be shown. — which the goods or money were Langford v. State, 45 Ala. 26. obtained need not be set out. — Where the offense was com- Com. v. Blanchette, 157 Mass. 486, mitted by means of fraudulent 32 N. E. 658. bills of costs the indictment is not 4 Bonnell v. State, 64 Ind. 498. defective for failing to set out 6 Bonnell v. State, 64 Ind. 498; such bills of cost.— State v. Mor- State v. Blauvelt, 38 N. J. L. (9 gan, 109 Tenn. 157, 69 S. W. 970. Vr.) 306; State v. Baggerly, 21 A description of the checl< as Tex. 757. that of a named person "upon the 6 State v. Blizzard, 70 Md. 385, Commercial Bank of Cincinnati 14 Am. St. Rep. 366, 17 Atl. 270. for the sum of thirty-four dollars 7 State v. Baker, 57 Kan. 541, and fifty-one cents, which check 46 Pac. 947. §646 FALSE PRETENSES. 873 or other property alleged to have been so obtained,^ or IFLA.— Ladd v. State, 17 Fla. 215; Moull© V. State, 37 Fla. 321, 20 So. 554; Cook v. State, 51 Fla. 36, 40 So. 490; Strickland v. State, 51 Fla. 129, 40 So. 178; Webb v. State, 69 Fla. 697, 68 So. 943. GA. — O'Neal v. State, 10 Ga. App. 474, 73 S. E. 696; Oliver v. State, 15 Ga. App. 452, 83 S. E. 641. ILL. — Thompson v. People, 24 111. 60, 76 Am. Dec. 733; DuBois v. People, 200 111. 157, 93 Am. St. Rep. 183, 65 N. B. 658. INC.— State V. Smith, 8 Blackf. 489; Leo- bold V. State, 33 Ind. 484; Holly V. State, 43 Ind. 509; State v. Mil- ler, 153 Ind. 229, 15 Am. Cr. Rep. 231, 54 N. E. 808. IOWA— State v. Jackson, 128 Iowa 543, 105 N. W. 51; State v. Clark, 141 Iowa 297, 119 N. W. 719; State v. Kiefer, 172 Iowa 306, 151 N. W. 440. MD. — State V. Blizzard, 70 Md. 385, 14 Am. St. Rep. 366, 17 Atl. 270. MISS.— State v. Hubanks, 99 Miss. 775, 56 So. 163. MO.— State V. Horn, 93 Mo. 190, 6 S. W. 96, overruling State v. Myers, 82 Mo. 558, 52 Am. Rep. 389; State v. Clay, 100 Mo. 571, 13 S. W. 827; State V. Stowe, 132 Mo. 199, 33 S. W. 799; State v. Vandenburg, 159 Mo. 230, 60 S. W. 79, 160 Mo. 42, 60 S. W. 1134. N. M.— Terr. v. Hubbell, 13 N. M. 579, 13 Ann. Cas. 848, 86 Pac. 747. N. Y.— People V. Knimmer, Seld. 549, 4 Park. Cr. Rep. 217. PA.— Com. v. Graham, 1 Pa. Co. Ct. 882, 3 Kulp 289. TEX. — State v. Vickey, 19 Tex. 326; State v. Levi, 41 Tex. 563; Washington v. State, 41 Tex. 583; Mays v. State, 28 Tex. App. 484, 13 S. W. 787. VT.— State v. Lathrop, 15 Vt. 279. W. VA.— State V. Cutllp, 88 S. B. 829. WIS.— -Owens v. State, 83 Wis. 496, B3 N. W. 736. WYO.— Martins v. State, 17 Wyo. 319, 22 L. R. A. (N. S.) 645, 98 Pac. 709. CANADA— R. V. Walker, 10 Up. Can. Q. B. 465. ENG.— R. v. Nor- ton, 8 Car. & P. 196, 34 Eng. C. L. 686; R. V. Parker, 3 Q. B. 292. Thus, an indictment or informa- tion charging that accused, with intent to defraud another, and, to induce him to p|BJ(!%ase specified property, mao^'certa!|it false pre- tenses as to tilr^wJiershLip of such property, and**6id thereby obtain from him t^ 'dollars, ^^■^, owner- ship of jtfc^ji.'^on^y B^t ^being averred, arid it not beingi averred that the sal^ was 'consuajmated, will bi&'iiisuaiciejit. — State )f. Mil- ler, 153iJiid. 229, 15 Am. dr,. Rep. 231, 54 Vn. E. 808. See !s4te v. William's, 103 Ind. 235, 6 Ahi. Cr. Rep. 256, 2 N. E. 585; Com. v. Strain, 51 Mass. (10 Mec6.) 521. An allegation that defendant "did unlawfully, ' fraudulently, falsely, and felo*- ^isly obtain from Ed Haglin flfty-three dollars and fifty-four cents gold, sliver and paper money of the value of fifty-three dollars and fifty-four cents," etc., sufaciently alleges ownership and description of the money.: — Silvie v. State, 177 Ark. 108, 173 S. W. 857. An erroneous allegation as to ownership Is immaterial. — Hen- nessy v. Com., 88 Ky. 301, 11 S. W. 13. Where the ownership is not al- leged there must be an allegation of a legal excuse for the omission. — Terr. v. Hubbell, 13 N. M. 579, 13 Ann. Cas. 848, 86 Pac. 747. Where the ownership is not al- 874 CEIMINAL PEOCEDUEE. §646 present a sufficient excuse for not so doing ;^ and a fail- ure to so allege will be fatal.* There is authority to the effect that the indictment or information will be sufficient in those cases where a statement of ownership can be gathered from the whole instrument, without a specific allegation as to such o-wnership;* but other cases hold that this will not be sufficient, because the ownership is a material fact and should be directly averred.^ The ownership should be laid in some person who could main- tain a civil _^tion for the possession of the property.® It has beeji''s£^.ihat the ownership may be laid in a per- son having'-authOTity to sell the property -^ or in a person who wadp5'¥>^s^^^si°^ ^^ ^^ property at the time f or in a mor^|r ,,efe of thte property;® or in any one of the part- ners of /'a copart£Si%hip ;^"' or in a named company, and when, tjh.e ownership is laid in a company, it is not nec- essary to allege whether that company is a corporation leged l^ere must b& averted an fully as if there had been a direct excuseN^or not alleging it-j^State V. Lathr^i), 15 Vt. 279. ' By statutS in North Carolina it is unnecessary to allege owner- ship.— State v.-TRldge, 125 N. C. 658, 34 S. E. ? ). 2 Territory ^'Hubbell, 13 N. M. 579, 13 Ann. Cas. 848, 86 Pac. 747; State V. Lathrop, 15 Vt. 279. 3 Jenkins v. State, 97 Ala. 66, 12 So. 110; Washington v. State, 41 Tex. 583; R. v. Martin, 8 Ad. & E. 481, 35 Eng. C. L. 443; R. v. Parker, 2 Gale & D. 709. 4 People V. Skidmore, 123 Cal. 267, 55 Pac. 984; McCllntock v. State, 98 Neb. 158, 152 N. W. 378; State V. Knowlton, 11 Wash. 512, 39 Pac. 966; Griggs v. United States, 84 C. C. A. 596, 158 Fed. 572. Where all the facts are set out in the indictment and the owner- ship can be gathered therefrom as allegation, the indictment Is suflS- cient. — People v. Skidmore, 123 Cal. 267, 55 Pac. 984. sMoulie V. State. 37 Fla. 321, 20 So. 554. 6 Jones V. State, 22 Fla. 532. 7 Com. V. Blanchette, 157 Mass. 486, 32 N. E. 658. 8 Fields V. State, 121 Ala. 16, 25 So. 726; May v. State, 15 Tex. 430; R. V. Dent, 1 Car. & K. 249, 47 Eng. C. L. 249. An article of property obtained by means of a counterfeit piece of coin, the ownership of the prop- erty need not be laid in the person from whom the article was ob- tained. — State V. Boon, 49 N. C. (4 Jones L.) 463. 9 Barber v. People, 17 Hun (N. Y.) 366. 10 Gardner v. State, 4 Ala. App. 131, 58 So. 1001. § 647 FALSE PEETENSES. 875 or a copartnership;^^ or in a county officer, where the money is secured by the accused to he paid out by such officer on a false and fraudulent warrant,^^ and the like ; and in those cases in which the ownership is not known, it may he alleged that the property belonged to a party to the grand jury unknown.^* Ownership immaterial, however, in those cases in which the accused points out to a prospective purchaser valu- able property, which he does not own, and subsequently concludes a bargain with such person for the property pointed out, but instead, conveys or delivers to him, in- stead of the valuable property pointed out and which the party intended to purchase, other property which was worthless ; in which case the ownership of the property pointed out is immaterial, and need not be alleged.^* § 647. Value op money or property. An indict- ment or information charging the procuring of money or other property by means of false pretenses, need not al- lege the value of such money^ or property,^ if it be a 11 state V. Wilson, 73 Kan. 334, the number of them was unknown 80 Pac. 639; reversed on other to the jury. — State v. Hurst, 11 points in 73 Kan. 343, 117 Am. St. W. Va. 54, 3 Am. Cr. Rep. 100. Rep. 479, 84 Pac. 737. See Leftwick's Case, 61 Va. (20 12 State V. Lynn, 3 Penn. (Del.) Gratt.) 716. 316, 51 Atl. 878. Where the name is unknown 13 See State v. McChesney, 90 there must be an allegation to that Mo. 120, 1 S. W. 841; State v. effect. — State v. McChesney, 90 Lathrop, 15 Vt. 279. Mo. 120, 7 Am. Cr. Rep. 184, Charging obtaining money by 1 S. W. 841. false pretenses, the money being i* State v. McConkey, 49 Iowa described as: "Divers United 499. States notes, and divers national i Charging accused, with intent bank notes, the denominations of to defraud a named person, ob- which treasury notes and national tained from him the sum of twenty bank notes are to the jurors un- dollars, it is unnecessary to allege known, amounting to" a stated that twenty dollars are money and number of dollars, is a sufficient worth something. — State v. Ryan, description of the money, it not 34 Wash. 597, 76 Pac. 90. being necessary to state the num- 2 ALA. — Oliver v. State, 37 Ala. ber of the notes or to allege that 134. ME. — State v. Dorr, 33 Me. 876 CRIMINAL PROCEDUEE. §647 thing recognized as property,^ except in those cases in which the value is made by the statute an element of the offense,* e. g., where a greater punishment is inflicted when the value is over a designated amount ;®"but a state- ment that the accused obtained money® or property'^ of a designated value, is sufficient. Money being the prop- erty obtained, being in itself a measure of value, there need be no averment of its value ;^ and it is not neces- 498. N. Y.— People v. Stetson, 4 Barb. 151; People v. Higbie, 66 Barb. 131; People v. Jefferey, 82 Hun 409, 9 N. Y. Crim. Rep. 419, 31 N. Y. Supp. 267. N. C— State v. Gillespie, 80 N. C. 396. Horse trade charged as the basis of false pretenses, after con- viction the fact that the indict- ment did not allege the horse was of any value, held not to be suiH- cient ground for an arrest of judg- ment.— State V. Dorr, 33 Me. 498. 3 State V. Boon, 49 N. C. (4 Jones L.) 463. 4 Baker v. State, 31 Ohio St. 314. 5 CAL.— People v. Haas, 28 Cal. App. 182, 151 Pac. 672. MONT.— Terr. v. Underwood, 8 Mont. 131, 19 Pac. 398; State v. Phillips, 36 Mont. 112, 92 Pac. 299. N. H.— State V. Ladd, 32 N. H. 110. N. Y.— People v. Stetson, 4 Barb. 151; People v. Higbie, 66 Barb. 131. N. C— State v. Gillespie, 80 N. C. 396. OHIO— Baker v. State, 31 Ohio St. 314. c State V. Ryan, 34 Wash. 597, 76 Pac. 90. 7 IOWA— State v. Jackson, 128 Iowa 543, 105 N. W. 51. MO.— State V. Vandenburg, 159 Mo. 230, 60 S. W. 79, 160 Mo. 42, 60 S. W. 134. N. J. — Hagerman v. State, 54 N. J. L. 104, 23 Atl. 357. N. Y.— People V. Peckens, 153 N. Y. 576, 12 N. Y. Or. Rep. 433, 47 N. E. 883,, affirming 12 App. Div. 620, 43 N. Y. Supp. 1160. Deed and title to land alleged to have been procured feloniously through false pretenses, an allega- tion of the value of the land at fifteen hundred dollars sufficiently alleges the value of the deed. — People V. Peckens, 153 N. Y. 576, 12 N. Y. Or. Rep. 433, 47 N. E. 883, affirming 12 App. Div. 626, 43 N. Y. Supp. 1160. Reasonably vyorth "about fifteen thousand dollars," is not sufficient description of value. — State v. Jackson, 128 Iowa 543, 105 N. W. 51. 8 ALA.— Oliver v. State, 37 Ala. 134. CAL.— People v. Millan, 106 Cal. 320, 39 Pac. 605. MO.— State V. Vandenburg, 159 Mo. 230, 60 S. W. 79. WIS.— State v. Kube, 20 Wis. 217, 91 Am. Dec. 390. FED.— Griggs v. United States, 85 C. C. A. 596, 158 Fed. 572. Where the Information alleged that the person defrauded "did then and there deliver to said W. H. G. a check payable for the sum. of one thousand dollars in money . . . and said W. H. G. did then and there unlawfully . . . receive and obtain said money," the check and the value §§ 648, 649 FALSE PEETENSES, 877 sary to aver that the false pretenses were made concern- ing property or a thing of value.* § 648. False pretense of being an officer. The offense of falsely personating an officer has already been dis- cussed under the specific crime of "False Personation,"^ and it remains but to add in this place that an indictment or information charging the receiving of money or prop- erty by accused through falsely pretending and repre- senting himself to be an officer, must describe the money or other property with the same particularity as is re- quired in an indictment or information charging the lar- ceny of such money or property;* must allege that the accused falsely assumed and pretended to be, and repre- sented himself to be, an officer f that the party defrauded relied upon such false pretenses and representations, and believed accused to be an officer;* that the party de- frauded intended that the money or property be delivered to the accused for the party or person whom the accused falsely pretended to represent j' and that the accused intended" to convert the money or property to Ms own use.'' § 649. Peesentinq false claim. An indictment or in- formation charging procuring money by means of false pretense through presenting a false and fraudulent claim to a public officer whose duty it was to pay claims duly presented, phrased in the language of the statute, will oe thereof were sufficiently described Cush.) 61; United States v. Brown, and stated.— State v. Garland, 65 119 Fed. 482. Wash. 666, 118 Pac. 907. 4 Jones v. State, 22 Fla. 532; 9 People V. Henninger, 20 Cal. Goodson v. State, 29 Fla. 511, 30 App 79, 128 Pac. 352; People t. *>"■ St- Rep. 135, 10 So. 738. Stetson, 4 Barb. (N. Y.) 151. ^ Goodson v. State, 29 Fla. 511, „ „„, 30 Am. St Rep. 135, 10 So. 738. t See, supra, § 624. , ^^ ^^ .„^^„, ^j ^^^^^^ ^^^^ 2 Treadaway v. State, 37 Ark. supra, § 630. 443; Jamison V. State, 37 Ark. 445, 7 Jones v. State, 22 Fla. 532; 40 Am. Rep. 103. Goodson v. State, 29 Fla. 511, 30 3 Com. V. Wolcott, 64 Mass. (10 Am. St. Rep. 135, 10 So. 738. S78 CEIMINAL PROCEDURE. §650 sufficient,* where it states, in addition, the particulars in which the claim was false.^ The purport of the claim should be given, but the claim itself need not be set out in the indictment or information.^ The alleged false pretenses should be correctly described,* and there must be an allegation that the claim was false, and the money not owing ;^ that the accused knew the claim to be false and fraudulent,® and that he received the money, or shared in if § 650. JoiNDEK OF DEFENDANTS. In an indictment or in- formation charging procuring money or other property by means of false pretenses, it has been pointed out elsewhere,* all the parties actively participating in the commission of the offense may be joined as co-defen- dants. Thus, in a case where false pretenses are made by one of several parties in pursuance of a conspiracy or agreement between them, for the purpose of procuring 1 People V. Carolan, 71 Cal. 195, 12 Pac. 52. See, also, supra, § 626. 2 People V. Mahoney, 145 Cal. 104, 78 Pac. 354; Wilson v. State, 156 Ind. 631, 59 N. E. 380; Com. v. Mulrey, 170 Mass. 103, 49 N. B. 91. Compare: Davis v. State, 20 Ohio Cir. Ct. Rep. 430, 10 Ohio Cir. Dec. 738; United States v. Watkins, 3 Cr. C. C. 441, Fed. Cas. No. 16649. Claim dpcket not required by law to be kept, indictment need not allege that such a docket was kept— Wilson v. State, 156 Ind. 631, 59 N. E. 380. False returns of amount due made by a city official, and money obtained thereon, the indictment or Information need not set out the names of the other officers through whose hands the returns must pass for approval. — Com. v. Mulrey, 170 Mass. 103, 49 N. E. 91. s Johnson v. State, 75 Ind. 553; Wilson V. State, 156 Ind. 631, 59 N. B. 380. 4 Johnson v. State, 75 Ind. 553; Davis V. State, 20 Ohio Cir. Ct. Rep. 430, 10 Ohio Cir. Dec. 738. Accused falsely pretended that the city was Indebted to him, need not be averred in the indictment. —Davis V. State, 20 Ohio Cir. Ct Rep. 430, 10 Ohio Cir. Dec. 738. 5 Com. V. Mulrey, 170 Mass. 103, 49 N. B. 91. 6 Wilson V. State, 156 Ind. 631, 59 N. E. 380; Com. v. Mulrey, 170 Mass. 103, 49 N. B. 91. See Davis V. SUte, 20 Ohio Cir. Ct. Rep. 430, 10 Ohio Cir. Dec. 738. 7 Goodson V. State, 29 Fla, 511, 30 Am. St. Rep. 135, 10 So. 738; People V. Court of General Ses- sions, 13 Hun (N. Y.) 395. 1 See, supra, §351; 2 Kerr's Whart. Crim. Law, § 1476. §§ 651, 652 FALSE PRETENSES. 879 money or other property from another person, the false pretenses or representations made by one are chargeable against all, and they may all be jointly indicted.^ § 651. JoiNDEE OF OFFENSES. We have already seen that offenses of the same character and having the same mode of trial and punishment may be joined in the same in- dictment,^ even where the punishment, though of the same class, is of different degrees of severity;^ hence, an indictment or information charging obtaining money or property by false pretenses may be joined with counts for conspiracy so to obtain money or property, and espe- cially so in those jurisdictions in which the two offenses are of the same grade;* so also may obtaining money by false pretenses and larceny from the person be joined in different counts in the same indictment;* and a count for obtaining money by false pretenses and another for embezzlement, they both belonging to the same family of crimes." The same is true of a charge of forgery and a charge of attempt to obtain money by false pretenses, both being based on the same transaction.® § 652. JoiNDBK OF COUNTS. We have already seen that the cautious pleader will insert as many counts as will be necessary to provide for every possible contingency in the evidence, and that this the law permits.^ An indict- ment or information charging the crime of securing money or other property, or attempting to secure money 2Cowen V. People, 14 HI. 348; United States, 151 U. S. 396, 38 Com. V. Harley, 48 Mass. (7 Mete.) L. Ed. 208, 14 Sup. Ct. Rep. 410. 462; Jones v. United States, 5 Cr. ai^. Lamkin v. People, 94 111.. C. C. 647, Fed. Cas. No. 7499. 501 ; Thomas v. People, 113 111! 1 See, supra, § 335. 53I, 2 See Johnson v. State, 29 Ala. 4 Johnson t. State, 29 Ala 62, 62, 65 Am. Dec. 383; Oliver v. gg ^^ ^^^ 3^3 State, 37 Ala. 134; Tanner v. State, 92 Ala. 1. 9 So. 613; Lowe v. State, " ^tate v. Lincoln. 49 N. H. 464. 134 Ala. 154, 32 So. 273; Herman e People v. Danford, 14 Cal. App. V. People, 131 111. 594, 9 L. R. A. 442, 112 Pac. 474. 182, 22 N. E. 471; Pointer v. 1 See, supra, § 347. 680 CRIMINAL PKOCEDURE. § 652 or other property, by false pretenses, should have as many counts as the facts and circumstances seem to re- quire. Thus, where the accused obtained money by means of false pretenses on two different days, the false pre- tense of each day should be set forth in a separate count, and the two counts will cover but one transaction f where the charge is of procuring money from a building and loan association, one count may charge the obtaining of the money from the association, and a second count may charge the accused with having obtained the money from the treasurer of such association by making the same fraudulent representations to him;* and an indictment charging accused with obtaining property under false pretenses in one count, and in another count charging him with obtaining the signature to a note by false pre- tenses, both acts having reference to the same transac- tion, charges but one offense.* Duplicity can not be charged against an indictment set- ting forth conjunctively the acts necessary to constitute the offense, stated disjunctively in the statute." An in- formation charging in one count that accused conspired together to defraud a corporation, and by fraudulent representations, which are fully set forth, obtained from it a bank-check, by means whereof they obtained a cer- tain sum of money and thereby defrauded the corpora- tion, charges but one offense." Where the offenses of lar- ceny, false pretense, or embezzlement all relate to the same transaction, they may be charged together, in dif- ferent counts ; in fact, should be so charged where there is any doubt which offense the evidence will disclose.'' 2 See Beasley v. State, 59 Ala. B, State v. Leonard, 73 Ore. 451, 20; West v. People, 137 111. 189, 144 Pac. 113, rehearing 144 Pac. 27 N. B. 34, 34 N. E. 254. 681. 3 State V. Franzreb, 11 Ohio Dec. See, also, supra, § 278. 775, 29 Wkly. L. Bui. 129. 6 State v. Richmond, 96 Kan. 4 People V. Danford, 14 Cal. App. 600, 152 Pac. 644. 442, 112 Pac. 474; State v. House, 7 People v. Miles, 19 Cal. App. 55 Iowa 466, 8 N. W. 307. 223, 125 Pac. 250. § 652 FALSE PRETENSES. 881 Where an indictment charges the offense of swindling in due form, it will not be rendered duplicitous, because the facts may also have constituted the crime of theft,* and by the same act the accused may have committed both offenses, and the state could have prosecuted him for either, at its election.^ s Sims V. State. 21 Tex. App. 9 Sims v. State, 21 Tex. App. 649. 649. I .Crlm. Proc. — B8 CHAPTER XLVI. INDICTMENT SPECIFIC CRIMES. Fellatio and Cv/nmlingus. § 653. Form and sufficiency of indictment. § 653. FoKM AND sxTFFiciENCT OF INDICTMENT. The Cali- fornia legislature of 1915^ sought to provide new punish- ment and to give new names to old offenses by calling them "fellatio" and "cunnilingus," which are not terms of art or "technical terms" known either to the law, or in medical or chirurgical science. Inasmuch as these terms are not defined by the act,^ and as they constitute the principal part of the section, the legislation has been attacked as plainly unconstitutional, because it is in vio- lation of the fundamental provision of the state consti- tution^ requiring all laws to be printed in the English language.* Whether the legislation is constitutional or unconstitutional, is for the courts, and until this matter is passed upon, an indictment or information drawn under that section must contain a full statement of the acts constituting the offense charged in ordinary and concise language,^ and in a manner to enable a person of iStatutes and Amendments, 4 See Kerr's Biennial Supple- 1915, p. 1022. ment, 1917, to Cyc. Codes of Call- 2 The acts technically known as fomia, p. 4091. fellatio and cunnilingus are hereby b Mr. Justice Chlpman, of the declared to be felonies, and any Third District Com-ts of Appeal, person convicted of the commls- has well said of this section that sion of either thereof shall be pun- it is "to a man of common under- Ishable by imprisonment in the standing (indeed, we think, also, state prison for not more than fif- to one of uncommon understand- teen years. — Cal. Pen. Code, ing) , as cabalistic as if written in § 288a; Kerr's Biennial Supple- Egyptian or Mexican hieroglyph- ment, 1915, to Cyc. Codes of Call- Ics, or in Japanese or Chinese fornia, p. 3245. characters." — People v. Carrell, 31 3 Cal. Const. 1879, arts. I, V, § 24. Cal. App. 793, 795, 161 Pac. 995. (882) § 653 FELLATIO AND CUNNILINGUS 883 common understanding to know what is intended,® otherwise, the indictment or information will not state a public offense, in the absence of any definition in the stat- ute of the terms "fellatio" and "eunnilingus," or of any statement of the particular acts constituting the alleged offense/ 6 People V. Carrell, 31 CaL App. 1 1d, 793. 161 Pac. 996. CHAPTER XLVII. IKDICTMENT SPECIFIC CEIMES. Forgery. § 654. Form and sufficiency of indictment — In general. § 655. Following language of statute. § 656. Having forged instrument in possession. § 657. Uttering forged instrument. § 658. Necessary averments — Making — In general. § 659. Time of the offense. § 660. Name of defendant. § 661. Name of person to be defrauded. § 662. Fictitious name signed. § 663. Thing prohibited — ^Value. § 664. Manner and means of forgery. § 665. Lack of authority. § 666. Guilty knowledge of accused. § 667. Intent to defraud — In general. § 668. Person intended to be defrauded. § 669. General intent to defraud. § 670. Altering genuine instrument. § 671. Falsification of record or of entries therein. § 672. Unnecessary averments — In general. § 673. Facts assumed in forged instrument. § 674. Value need not usually be averred. § 675. Name of person to whom forged instrument uttered or passed. § 676. Description of instrument — In general. § 677. Copy, tenor or facsimile of instrument. § 678. Purport of instrument. § 679. Effect of videlicet clause. § 680. Ambiguity and repugnancy — In general. § 681. In names of persons. § 682. In names of corporations. § 683. Designating instrument by name. § 684. Instrument in foreign language. (881) § 654 FORGERY. 885 § 685. Lost, destroyed, or withheld instrument. § 686. Indorsements. § 687. Marginal devices, words and figures, ete. § 688. Pacts extrinsic to instrument — In general. § 689. When to be alleged and sufficiency of averments. § 690. Explanation of instrument. § 691. Explanation of defective expressions. § 692. Joindei^Of defendant. § 693. Of offenses — Distinct crimes. § 694. Acts or steps in the offense. §695. Of counts. § 696. Duplicity. § 697. Remedies for misjoinder. § 654. FOKM AND SUPFICIEKOY OF INDICTMEKT^ 1n GBN- EKAL. An indictment at common law charging forgery in any of its phases was an extremely technical instrument, verbose and filled with essential "terms of art," or spe- cific technical words, the omission of which was fatal, and contained minute descriptions of matters of fact.^ The common law technicality and formality have been entirely done away with by statutes in most, if not all, the states in the Union, under which statutes an indictment or in- formation in plain and concise language, setting out all the elements of the offense sought to be charged as the same are laid down in the particular statute, will be suf- ficient,* however imartfully drawn,* and the omission 1 As to forms of indictment of N. Y. — In re Van Orden, 32 Misc. forgery in all its phases, see 215, 15 N. Y. Cr. Rep. 79, 65 N. f. Forms Nos. 978-1036. Supp. 720. OHIO— Lougee v. State, 2 See, fully, 3 Chit. Grim. Law " ^^^° 69; Poage v. State. 3 OBB, lu y, Qj^.^ 229. PA.— Com. v. Shiss- 1044; 2 Russ. on Crimes (9th Am. , „ „, ,, .„_ _ _ „ ler, 9 Phlla. 587. S. C. — State v. ed.), pp. 795 et seq. ^^^^^^^ 3 ^^^ ^ ^^^ VT.-State 3 GA.— Watson v. State, 78 Ga. y_ Morton, 27 Vt. 310, 65 Am. Dec. 349. ILL.— Crofts v. People, 3 111. 201. FED.— United States v. Al- 442. IND.— Sharley v. State, 54 bert, 45 Fed. 552. Ind. 168. KY.— Hughes v. Com., 4 People v. King, 125 Cal. 369, 89 Ky. 227, 12 S. W. 269; Holds- 58 Pac. 19; Stockslager v. United worth V. Com., 6 Ky. L. Rep. 591. States, 54 C. C. A. 46, 116 Fed. MO. — State v. Jackson, 90 Mo. 156. 590. 886 CRIMINAL PROCEDURE. §654 of sucli special words as "falsely,"* "feloniously,"* "knowingly,"'' and the Uke, will not vitiate the indict- ment. Certainty in the indictment or information is neces- sary in charging the offense in ordinary language in such a manner as to enable a person of common understand- ing to know what is intended to be charged,* and be in- formed of the particular acts relied upon as constituting his guilt;' to enable the jury to readily understand the nature of the offense •^'^ to enable the court to pronounce 5 CAL— People v. Mitchell, 92 Cal. 590, 28 Pac. 597. COLO.— Cohen v. People, 7 Colo. 274, 3 Pac. 385. FLA. — Tumipseed v. State, 45 Fla. 110, 33 So. 851. IND.— State v. Dark, 8 Blackf. 526. NBV. — State V. McKiernan, 17 Nev. 224, 30 Pac. 831. 6 Cohen v. People, 7 Colo. 274, 3 Pac. 385; Com. v. Lemon, 18 Ky. L. Rep. 480, 37 S. W. 61; State V. Murphy, 17 R. I. 698, 16 L. R. A. 550, 24 Atl. 473; United States v. Staats, 49 U. S. (8 How.) 41, 12 L. Ed. 679. Louisiana doctrine seems to he different. See State v. Flint, 33 La. Ann. 1288. T Morris V. State, 17 Tex. App. 660. •8 ALA. — Jones v. State, 50 Ala. 163; Horton v. State, 53 Ala. 491. ILL.— Bland v. People, 4 111. 364, 39 Am. Dec. 41g. IOWA— State v. Thompson, 19 Iowa 300; State v. Johnson, 26 Iowa 407, 96 Am. Dec. 158. KY. — Stowers v. Com., 75 Ky. (12 Bush) 342; Com. v. Will- lams, 76 Ky. (13 Bush) 267; Com. V. Bowman, 96 Ky. 40, 27 S. W. S16. LA. — State t. Fritz, 27 La. Ann. 360; State v. Leo, 108 La. 496, 15 Am. Cr. Rep. 272, 32 So. 447. MO.— State t. CUnton, 67 Mo. 380, 29 Am. Rep. 506, 3 Am. Cr. Rep. 132. NEV.— State v. McKier- nan, 17 Nev. 224, 30 Pac. 831. N. Y. — People v. Clements, 26 N. Y. 193. WASH. — State v. Wright, 9 Wash. 96, 37 Pac. 313. The indictment must show whose name was forged. — State v. Chinn, 142 Mo. 507, 44 S. W. 245. Where the information after set- ting forth a copy of the instrument alleged to have heen forged and stating that the Instrument was false and fictitious, then states that "whereas in truth and in fact there was no such individual as H. C. W. then or there in exist- ence," these latter words are not indefinite, and the information is sufBcient to enahle the defendant to know what was intended, and the court is enahled to pronounce judgment on conviction. — People V. Gordon, 13 Cal. App. 678, 110 Pac. 469. 9 ALA. — Jones v. State, 50 Ala. 163. IND.— State v. Callahan, 124 Ind. 366, 24 N. E. 732. TENN.— Luttrell V. State, 81 Tenn. (13 Lea) 232. VA.— Powell v. Com., 52 Va. (11 Gratt.) 824. 10 Cross V. People, 47 111. 152, 95 Am. Dec. 475. § 655 FORGERY. 887 the proper judgment in case of conviction," and to enable' tlie accused to plead such, judgment in bar of another indictment and prosecution for the same offense.^^ Fail- ure in these respects is good ground for quashing an indictment or information;^* but a mere clerical error will not vitiate the instrument." "Where the charging part of an indictment or information is defective and insufficient when taken separately, it gains no additional strength when joined with the other parts and considered as a whole. ^® Conclusion should be "contrary to the form of the stat- ute" where the statute expressly creates or prohibits the crime charged, but it is otherwise where the statute merely inflicts a punishment on what was before an offense;^® and where there is nothing on the face of the indictment or information to show that it was drawn under any statute, the conclusion "against the form of the statute," or other similar conclusion, may be disre- garded as surplusage.^^ % 655. Following language of statute. As in all other criminal offenses, in a charge of forgery, in any of its phases, the general rule^ applies, under which an in- 11 McDonnell v. State, 58 Ark. 14 State v. Given, 32 La. Ann. 242, 24 S. W. 105; Com. v. Bow- 782; State v. Morgan, 35 La. Ann. man, 96 Ky. 40, 27 S. W. 816; 293. Stowers v. Com., 75 Ky. (12 Bush.) As to clerical errors, see, supra, 342; Com. v. Williams, 76 Ky. (13 §§ 322 et seq. Bush) 267; Luttrell t. State, 85 IB People v. Mitchell, 92 Cal. Tenn. 232, 4 Am. St. Rep. 760, 590, 28 Pae. 597. 1 S. W. 886. 16 Com. v. Searle, 2 Bin. (Pa.) 12 McDonnell v. State, 58 Ark. 332, 4 Am. Dec. 446. See McCann 242, 24 S. W. 105; State v. John- v. State, 21 Miss. (13 Smed. & M.) son, 26 Iowa 407, 96 Am. Dec. 158; 71; White v. Com., 6 Bin. (Pa.) Com. V. Shissler, 9 Phila. (Pa.) 179, 6 Am. Dec. 443; Russell v. 587; Johnson v. State, 1 Tex. App. Com., 7 Serg. & R. (Pa.) 489. 151. As to statutory conclusion, see, 13 State V. Cook, 52 Ind. 574; supra, §§329-334. Trout V. State, 107 Ind. 578, 8 17 See R. v. Carson, 14 Up. Can. N. E. 618; Shannon v. State, 109 C. P. 309. Ind. 407, 10 N. E. 87. i See, supra, §§ 269 et seq. 888 CRIMINAL PEOCEDUEE. §655 dictment or information is usually sufficient whicli fol- lows the language of the statute,^ or substantially the language of the statute,^ where the words of that statute, 2 ALA. — Horton v. State, 53 Ala. 488. CAL. — People v. Todd, 77 Cal. 464, 19 Pac. 883; People v. Harold, 84 Cal. 567, 24 Pac. 106; People V. Eppinger, 105 Cal. 36, 38 Pac. 538. COLO. — Cohen v. People, 7 Colo. 274, 3 Pac. 385. GA. — Travis v. State, 83 Ga. 372, 9 S. E. 1063; Curtis v. State, 16 Ga. App. 678, 85 S. B. 980. ILL.— People V. Cotton, 250 III. 338, 95 N. E. 283. IND.— State v. Miller, 98 Ind. 70. KAN. — State v. Foster, 30 Kan. 365, 2 Pac. 628; State v. Gavigan, 36 Kan. 322, 13 Pac. 555. KY. — Eldridge v. Com., 21 Ky. Law Rep. 1088, 54 S. W. 7. LA.— State V. Boasso, 38 La. Ann. 202; State V. Tisdale, 39 La. Ann. 476, 2 So. 406; State v. Stephen, 45 La. Ann. 702, 12 So. 883. MICH.— People v. Van Alstine, 57 Mich. 69, 6 Am. Or. Rep. 272, 23 N. W. 594. MISS. — Harrington v. State, 54 Miss. 490. MO.— State v. Wat- son, 65 Mo. 115; State v. Fisher, 65 Mo. 438; State v. Rucker, 93 Mo. 88, 5 S. W. 609; State v. Row- len, 114 Mo. 626, 21 S. W. 729. NEV. — State v. McKiernan, 17 Nev. 224, 30 Pac. 831; State v. Raymond, 34 Nev. 198, 117 Pac. 17. N. J.— West V. State, 22 N. J. L. (2 Zab.) 212. N. Y.- People v. Rynders, 12 Wend. 425; Holmes v. People, 15 Abb. Pr. 154. N. C— State V. Morgan, 19 N. C. (2 Dev. & B.) 348; State v. Gardiner, 23 N. C. (1 Ired. L.) 27. OHIO— Poage V. State, 3 Ohio St. 229. OKLA. — Williams v. State, 11 Olcla. Cr. 82, 142 Pac. 1181. S. C— State V. Foster, 3 McC. L. 442. TENN. — Croxdale v. State, 38 Tenn. (1 Head) 139. TEX.— Lab- baite v. State, 6 Tex. App. 257; Townser v. State, (Tex. Cr. Rep.) 182 S. W. 1104. VA.— Huffman v. Com., 27 Va. (6 Rand.) 685. B^D. — United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135, 4 Am. Cr. Rep. 246; United States v. Britton, 107 U. S. 655, 27 L. Ed. 520, 2 Sup. Ct. Rep. 512; United States V. Jolly, 37 Fed. 108. Where the indictment follows the code form it is not subject to demurrer. — Davis v. State, 165 Ala. 93, 51 So. 239; Newsum v. State, 10 Ala. App. 124, 65 So. 87. Where the indictment closely conforms to the language of the statute defining forgery in the first degree it is good. — People v. Alderdice, 120 App. Div. (N. Y.) 368, 21 N. Y. Cr. Rep. 379, 105 N. Y. Supp. 395. Inasmuch as forgery is a statu- tory and not a common law crime in the District of Columbia, the offense must be charged as defined in the statute, irrespective of com- mon law rules of pleading. — Simon V. United States, 37 App. D. C. 280. 3 CAL. — People v. Eppinger, 105 Cal. 36, 38 Pac. 538. IND.— State V. Miller, 98 Ind. 70; Garmire v. State, 104 Ind. 444, 5 Am. Or. Rep. 238, 4 N. E. 54. KY.— Moore v. Com., 92 Ky. 630, 18 S. W. 833. MICH.— People v. Van Alstine, 57 Mich. 69, 6 Am. Cr. Rep. 272, 23 N. W. 594. MISS.— Harrington v. State, 54 Miss. 490. MO.— State v. Watson, 65 Mo. 115. NEV.— State v. McKiernan, 17 Nev. 224, 30 Pac. § 655 FOEGEBT. 889 in and of themselves, fully, distinctly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the particular phase of forgery sought to be charged;* but where, by pursuing the words of the statute, there is any ambiguity or un- certainty in the indictment or information, it will be insufficient,® because "the fact that the statute in ques- tion, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment the facts neces- sary to bring the case within that intent."® And where the forgery in question is considered a common-law offense because it is not defined by the statute, it will not be sufficient simply to follow the language of the stat- ute.'^ Where the language of the statute is not followed, but words of equivalent import are sought to be used, the indictment or information must set forth all the facts which are necessary to constitute the material ingredi- ents in the particular phase of the offense sought to be 831. OHIO — Poage v. State, 3 2 Pac. 628 ; State v. Gavigan, 36 Ohio St. 229. S. C. — State v. Fos- Kan. 322, 13 Pac. 555; United ter, 3 McC. L. 442. TBNN.— Crox- States v. Staats, 49 U. S. (8 How.) dale V. State, 38 Tenn. (1 Head) 41, 12 L. Ed. 679; United States v. 139. FED.— United States v. Carll, Carll, 105 U. S. 611, 26 L. Ed. 1135, 105 U. S. 611, 26 L. Ed. 1135, 4 Am. 4 Am. Cr. Rep. 246. Cr. Rep. 246. 6 Mr. Justice Gray, delivering An indictment following the Ian- the opinion in United States v. guage of the statute hut not fur- Carll, 105 U. S. 611, 25 L. Ed. 1135, ther alleging that .the defendant 4 Am. Cr. Rep. 246, citing: Com. knew the forged obligation to be v. Clifford, 62 Mass. (8 Cush.) 215; false, forged, counterfeited, and Com. v. Bean, 65 Mass. (11 Cush.) altered is insufficient even after 414; Com. v. Bean, 80 Mass. (14 verdict. — United States v. Carll, Gray) 52; Com. v. Filburn, 119 105 U. S. 611, 26 L. Ed. 1135, 4 Am. Mass. 297; United States v. Cruik- Cr. Rep. 246. shank, 92 U. S. 542, 23 L. Ed. 588; 4 United States v. Carll, 105 United States v. Simmons, 96 U. S. U. S. 611, 26 L. Ed. 1135, 4 Am. Cr. 360, 24 L. Ed. 819. Rep. 246. T State v. Leo, 108 La. 496, 15 5 State V. Foster, 30 Kan. 365, Am. Cr. Rep. 272, 32 So. 447. 890 CRIMINAL PROCEDURE. §656 charged;^ all technical words,® and words which are a part of the definition and descriptive of the offense, must be used in the indictment or information to make it suffi- cient,^" although it is otherwise as to those words of the statute which are merely descriptive of the instrument which is the subject of forgery. ^^ — Haying foeged instrument in possession.^ §656. - The statute making it a criminal offense to have a forged or counterfeit instrument in possession with the intent to pass it as true and genuine, an indictment or infor- mation charging the offense in the language of the stat- ute, or substantially in the language of the statute,^ or drawn in conformity with the statute,* will be sufficient, without an allegation of an intent to utter and pass it for a consideration,* or averring an intention on the part of the accused to cheat and defraud any particular per- 8 GA. — Moore v. State, 33 Ga. 225; Johnson v. State, 109 Ga. 268, 34 S. E. 573; McCombs v. State, 109 Ga. 500, 34 S. E. 1023. KY.— Com. V. Lee, 18 Ky. L. Rep. 484, 37 S. W. 72. MICH.— People v. Stewart, 4 Mich. 655. MINN. — Benson v. State, 5 Minn. 19; State V. Cody, 65 Minn. 121, 67 N. W. 798; State v. Mlnton, 116 Mo. 605, 22 S. W. 808. N. H. — State v. Horan, 64 N. H. 548, 15 Atl. 20. N. C— State v. Britt, 14 N. C. (3 Dev. L.) 122. WIS. — Snow v. State, 14 Wis. 479. 9 As "feloniously," under a stat- ute declaring forgery to be a fel- ony. — State V. Murphy, 17 R. I. 698, 16 L. R. A. 550, 24 Atl. 473. Where a statute has not pro- vided what shall constitute the offense of forgery, or prescribed a form of indictment therefor, the indictment will have to conform to the rules of common law plead- ing and allege that the act was done "feloniously." — State v. Mur- phy, 17 R. I. 698, 16 L. R. A. 550, 24 Atl. 473. See, also, Edwards v. State, 25 Ark. 444; Mott v. State, 29 Ark. 147; Bowler t. State, 41 Miss. 570; Mears v. Com., 2 Grant's Cas. (Pa.) 385; Cain v. State, 18 Tex. 387. "Willingly," substituted in an indictment for the statutory word "wittingly," renders the indict- ment insufficient. — Harrington v. State, 54 Miss. 490. 10 State V. Hesseltine, 130 Mo. 468, 32 S. W. 983; People v. Wil- ber, 4 Park. Cr. Rep. 19. 11 Powell T. Com., 52 Va. (11 Gratt.) 822. 1 As to forms of indictment for having forged instruments in pos- session, see Forms Nos. 1132-1136. 2 See, ante, § 655. 8 See People v. Smith, 125 Mich. 566, 84 N. W. 1068. 4 State V. Eaton, 166 Mo. 575, 66 S. W. 539. § 657 FORGERY. 891 son.'- An exception being provided by the statute, that exception need not be negatived, where it clearly appears from the face of the indictment or information that the crime charged does not fall within the exception.® Intent being an element of the offense under the stat- ute, the indictment or information must contain the words "Snowing the same to be false," or their equiva- lent, otherwise it will be insufficient.'' Joinder of counts where accused is charged with hav- ing in his possession more than one forged bank-note with the intention of passing it, is permissible,* and there may be a conviction of a separate offense on each count,® although there is authority to the effect that where the accused is charged, in several informations, with having in his possession, at one time, several forged bank-notes, of different banks, with the intent to pass them, they charge but one offense;^" and it has been said that an allegation accused had in his possession on a certain day, which is specified, a given number of forged or counter- feit bank-notes, with intent to pass the same, is not an allegation that he had all such bank-notes at the same time.^'- § 657. Uttering torged instrument.* An indict- ment or information charging accused with having ut- tered a forged instrument, framed in the language of the statute, or substantially in the language of the statute, is sufficient,^ when as thus framed it sets forth all the 5 state V. Turner, 148 Mo. 206, i As to forms of indictment for 49 S. W. 988. uttering forged Instrument, see 6 State V. Hathhorn, 166 Mo. 229, Forms Nos. 1018-1031. 65 S. W. 576. 2 See, supra, §655; Espalla v. TNewby v. State, 75 Neb. 33, State, 108 Ala. 38, 19 So. 82; State 105 N. W. 1099. V. Stanton, 23 N. C. (1 Ired. L.) 8 Logan V. United States, 59 424. C. C. A. 476, 123 Fed. 291. "Utter, publish, and pass, or at- 9 Id. tempt to pass" a forged instru- 10 State V. Benham, 7 Conn. 414. ment, is bad on demurrer, though 11 State V. Bonney, 34 Me. 223. In the language of the statute; 892 CRIMINAL PEOCEDURB. § 657 essential elements of the offense of uttering a forged in- strument,' any immaterial variance from the language of the statute not being material where the words used are of the same general import;* but the careful pleader mil follow the exact wording of the statute under which he is prosecuting, in order to insure the sufficiency of his pleading, because, although it has been held in some jurisdictions that the statutory words "passing, uttering or publishing" are sufficiently pleaded by charging ac- cused with "selling and delivering,"^ in other jurisdic- tions it has been held that the statutory words "utter and publish" are not met by an indictment charging ac- cused did "dispose of and put away";® in still other jur- isdictions it is held that the statutory words "pass and transfer" are essential to the validity of the indictment or information^ Where the statute provided that it should be forgery for any one to sell a forged instru- ment "with intent to have the same uttered and passed," an indictment was held to be insufficient which charged accused sold "with intent to injure and defraud."^ A charge of forging does not include a charge of utter- ing a forged instrument f there must be a distinct aver- ment as to the uttering,^" as well as an averment in the charge should be in the con- 4 State v. Walker, 167 Mo. 366, junctive form. — People v. Tomlln- 67 S. W. 228. son, 35 Cal. 503. 5 State v. Watson, 65 Mo. 115; ;ate v. Mills, 146 Mo. 195, 47 W. 938. 6 State V. Petty, Harp. (S. C.) See, also, footnote 31, this sec- ^'^^^ ^- *^'"«' "^ Mo. 195, 47 S. W. 938. tlon. 3 ALA. — Harrison v. State, 36 59. Ala. 248; Espalla v. State, 108 Ala. 7 Croxdale v. State, 38 Tenn. (1 38, 19 So. 82. IOWA — State v. Head) 139. Burling, 102 Iowa 681, 72 N. W. 8 State v. Hesseltine, 130 Mo. 295. KAN. — State v. Foster, 30 468, 32 S. W. 983. Kan. 365, 2 Pac. 628. MO.— State 8 State v. Snow, 30 La. Ann. 401. V. Webster, 152 Mo. 87, 53 S. W. 10 "False, forged, and counter- 423. N. C. — State v. Stanton, 23 feit bank-note" alleged to have N. C. (1 Ired. L.) 424. TENN. — been uttered, is not bad for re- Faute V. State, 83 Tenn. (15 Lea) pugnancy. -r- Mackey v. State, 3 712. WYO. — Leslie v. State, 10 Ohio St. 362. Wyo. 10, 65 Pac. 849, 69 Pac. 2. "Utter and publish" as true a §657 FORGERY. 893 the indictment or information that the accused had knowl- edge of the forgery ;^^ but existing forgery, and knowl- edge thereof, have been said to be sufficiently alleged by an averment that accused, on a specified day, had in his pos- session the forged instrument and did "then and there" utter it as true, with the intent to defraud, "then and there" well knowing it to be forged.^^ Who committed the forgery or how it was done, or the particulars or facts constituting the forgery,^^ or the intent of the maker of the false instrument,^* need not be stated in the indictment or information,^' it being sufficient to aver that accused delivered the forged instrument knowing it to have been false and forged;^® but where the particu- lars of the forgery are attempted to be set out, the prose- forged instrument, states properly the crime under a statute making it an offense to "alter or publish" as true a forged instrument, the word "utter" being mere surplus- age. — State V. Barrett, 121 La. 1058, 46 So. 1016, — "Utter" and "publish" carry the same meaning of disposing of the forged instrument. — State v. Barrett, 121 La. 1058, 46 So. 1016. Uttering altered instrument may be charged as the uttering of either a forged or an altered in- strument. — Biddings v. State, 56 Ind., 101. Uttering forged deed by delivery to "helper" of recorder of deeds, for record, sufficient, although there is no such officer as "helper" to recorder known to the law. — Temple v. State, (Ark.) 189 S. W. 855. "Showing forth in evidence" a forged Instrument charged, it is not necessary to state In the in- dictment in what suit or jurisdic- tion proceedings It was "shown forth." — State v. Stanton, 23 N. C. (1 Ired. L.) 424. 11 Powers V. State, 87 Ind. 97; Shelton v. State, 143 Ala. 98, 39 So. 377. 12 Com. V. Butterick, 100 Mass. 12. Uttering forged check, knowing it to be forged, charged. It is not necessary that accused should have forged the check, if he had knowledge that it was forged. — King V. State, 8 Ala. App. 239, 62 So. 374. 13 Com. V. Cochran, 143 Ky. 807, 137 S. W. 521; State v. Goodrich, 67 Minn. 176, 69 N. W. 815. 14 State V. Goodrich, 67 Minn. 176, 69 N. W. 815. 15 Com. V. Cochran, 143 Ky. 807, 137 S. W. 521; Eldridge v. Com., 21 Ky. L. Rep. 1087, 54 S. W. 10; People V. Marion, 28 Mich. 225; State V. Goodrich, 67 Minn. 176, 69 N. W. 815. 16 Eldridge v. Com., 21 Ky. L. Rep. 1087, 54 S. W, 10. 894 CRIMINAL PROCEDURE. § 657 cution will be bound to state them truly, and to prove them as laid.^^ Acts constituting the offense charged required by statute to be stated, an indictment or infor- mation charging accused "did feloniously and falsely utter and publish as true" a certain writing without fur- ther allegation, will be insufficient, because failing to state the particular acts constituting the uttering.^* Con- sideration for the uttering need not be alleged, in the ab- sence of a statutory provision so requiring.^® Descrip- tion of the instrument alleged to have been uttered should be given,^" or a satisfactory reason stated for fail- ing to do so.^^ The facts constituting the uttering should be specifically alleged,^^ and only such facts as are al- leged can be proved.^* The name of the person, firm, cor- poration, or company to, or upon whom the forged instru- ment was uttered, published, or passed, is required to be stated in some jurisdictions, or an averment that such person is to the grand jurors unknown,^* while in other jurisdictions this is not required;^® but alleging instru- ment passed to named person is sufficient without an allegation as to how passed.^® Official capacity in which alleged forged instrument uttered need not be stated, ex- cept in those cases where injury could result alone from utterance by accused as an officer.^'' Uttering forged 17 People V. Marion, 28 Micli. 225. ment need not set out that he 18 Com. V. Williams, 76 Ky. (13 received the check as such agent. Bush) 267; Powers v. Com., (Ky.) — Heimes v. State, (Tex. Cr. Rep.) 18 S. W. 357. 129 S. W. 123. 19 State V. Katon, 166 Mo. 575, Forged check alleged to have 66 S. W. 539. been passed, the name of any par- 20 Hess V. State, 73 Ind. 537. ticular person to be injured or de- 21 Id. frauded need not be set out — 22 Flaugher v. Com., 1 Ky. L. Heimes v. State, (Tex. Cr. Rep.) Rep. 119. 129 S. W. 123. 23 Id. 25 state V. Hart, 67 Iowa 142, 25 24 McClellan v. State, 32 Ark. N. W. 99. 609 ; Goodson v. State, 29 Fla. 511, 26 Selby v. State, 161 Ind. 667, 30 Am. St Rep. 135, 10 So. 738. 69 N. E. 463. Agent of bank alleged to have 27 State v. Anderson, 30 La. Ann. received the forged check, indict- 507. § 658 PORGEBY. 895 mortgage charged, it need not be alleged there was an actual transfer, and if there was a transfer, the name of the transferee need not be set out.^* Where uttering through an agent is charged, it is not necessary to allege the innocence of the agent, and any averments as to him, will be surplusage.^* Multifariousness can not be charged against an in- dictment or information alleging that accused did utter, publish, and show forth in evidence, a certain forged in- strument, because of the allegation that the instrument was shown forth in evidence; the latter clause may be rejected as surplusage.®" And where the statute enu- merates several distinct acts disjunctively which sepa- rately, or together, would constitute the offense of utter- ing, e. g., "utter, or publish, or pass," the indictment or information may charge more than one of them, and this not only may, but should be done in the conjunctive, and not the disjunctive f orm.*^ § 658. Necessary aveements — Making* — In general. There is a marked similarity between the crime of for- gery and the crime of counterfeiting, particularly in so far as relates to bank-bills and bank-notes, and the essentials of an indictment or information charging either offense are substantially the same as to their general form.* The indispensable elements to be clearly shown in an indict- ment or information charging forgery are: (1) A writing 28 State V. Weaver, (Iowa) 128 crime of uttering as specified in N. W. 559. the statute, may be incorporated 29 Dillard v. State, (Tex. Cr. in the indictment or information. Rep.) 177 S. W. 99. was held in Territory v. Poulier, 30 State V. Jarvis, 129 N. C. 698. 8 Mont. 150, 19 Pac. 594. 31 People V. Tomlinson, 35 Cal. i As to forms for making forged 503. See People v. Ah Woo, 28 instruments, see Forms Nos. 983- Cal. 205; People v. Frank, 28 Cal. 1008. 507, 513; Mackey v. State, 3 Ohio 2 As requisites of indictment or St. 362. information charging counterfeit- Separate count for each differ- ing in any of its phases, see, supra, ent method of committing the §§ 538-553. 896 CRIMINAL PKOCEDUHE. §658 apparently valid, and if valid, obligatory;* (2) fraudu- lent intent of the accused to defraud,* and (3) the falsity of the writing,^ all of which elements must be proved to warrant conviction, and an indictment or information containing all these elements will be sufficient,® however unartfully drawn.^ An indictment or information charg- 3 See: CAL. — People v. Munroe, 100 Cal. 664, 38 Am. St. Rep. 323, 24 L. R. A. 33, 35 Pac. 326; People V. Bellafont, 11 Cal. App. 492, 105 Pac. 426. FL.A. — King v. State, 43 Fla. 211, 31 So. 254. ILL.— People V. Daugherty, 246 111. 458, 92 N. E. 929. IND.— Garmire v. State, 104 Ind. 444, 5 Am. Cr. Rep. 238, 4 N. B. 54. IOWA— State v. Van Auken, 98 Iowa 674, 68 N. W. 454. LA.— State v. Alexander, 113 La. 747, 37 So. 711. OKLA.— Ter- ritory V. Deland, 3 Olda. 373, 41 Pac. 618. Essential ingredients of the crime of forgery are said, by tHe California court, to be: (1) A false making of some instrument, (2) a fraudulent intent, (3) if genuine, the writing might injure another. —People V. Munroe, 100 Cal. 664, 38 Am. St. Rep. 323, 24 L. R. A. 33, 35 Pac. 326. The court say that the third ele- ment above stated has been recog- nized by the California courts to be the true test as to the nature of the writing, citing People v. Frank, 28 Cal. 507; People v. Tom- linson, 35 Cal. 503; Bx parte Fin- ley, 66 Cal. 262, 5 Pac. 222. "There is some general lan- guage in the Tomlinson case (su- pra), taken probably from People V. Shall, 9 Cow. (N. Y.) 778, 784, to the effect that the writing, if genuine, must be sufficient to form the basis of a legal liability; but such is not the true test in our opinion." 4 CAL. — People v. Munroe, 100 Cal. 664, 38 Am. St. Rep. 323, 24 L. R. A. 33, 35 Pac. 326. ILL.— Goodman v. People, 228 111. 154. KY.— Barnes v. Com., 101 Ky. 556, 41 S. W. 772. LA.— State v. Stur- geon, 127 La. 459, 53 So. 703. MINN. — State v. Bjornaas, 88 Minn. 301, 42 N. W. 980. N. Y.— People ex rel. Hegeman v. Corri- gan, 129 App. Div. 75, 113 N. Y. Sup. 513; affirmed, 195 N. Y. 1, 23 N. Y. Cr. Rep. 242, 87 N. E. 792; People V. Brown, 141 App. Div. 638, 126 N. Y. Supp. 322. N. C— State V. Wolf, 122 N. C. 1079, 29 S. E. 840. TEX.— Jones v. State, (Tex. Cr.) 69 S. W. 143. 5 CAL. — People v. Munroe, 100 Cal. 664, 38 Am. St. Rep. 323, 24 L. R. A. 33, 35 Pac. 326. ILL.— People V. Pfeiffer, 243 111. 200, 26 L. R. A. (N. S.) 138, 90 N. E. 680. KAN.— State v Gavigan, 36 Kan. 326, 13 Pac. 554. LA. — State v. Ford, 38 La. Ann. 797; State v. Grayder, 44 La. Ann. 962, 32 Am. St. Rep. 358, 11 So. 573. S. C— State V. Webster, 88 S. C. 56, 32 L. R. A. (N. S.) 337, 70 S. B. 422. 6 Hughes V. Com., 89 Ky. 227, 12 S. W. 269; Holdsworth v. Com., 6 Ky. L. Rep. 591; In re Van Orden, 32 Misc. (N. Y.) 215, 15 N. Y. Cr. Rep. 79, 65 N. Y. Supp. 720. 7 See, supra, § 654, footnote 4. § 659 FORGERY. 897 ing accused did "forge" a specified instrument in writ- ing, has been held to be sufficient,** without the specific alleg'ation that accused "falsely" made and forged the instrument, even though the statute uses the word "falsely," because the word "forged" implies false mak- ing to the full extent the same as if the word "falsely" were incorporated." The particulars in which the forgery consists need not be set forth, as we shall see hereafter." However, it must be distinctly alleged that there was an intention to forge and falsely make the instrument.^^ In case the charge is that accused procured,^^ or aided^* in the forgery, the name of the person whom he procured or aided need not be set forth. § 659. Time op the offense. As in the case of other crimes charged, an indictment or information setting out forgery should allege the time^ and place of the commission of the offense charged, in the absence of statutory provisions dispensing with an allegation as to s CAL.— People v. Mitchell, 92 Minn. 211, 77 Am. St. Rep. 632, 78 Cal. 590, 28 Pac. 597. FLA.— King N. W. 1042. V. State, 43 Fla. 211, 31 So. 254. o People v. Mitchell, 92 Cal. 590, KAN.— State v. Foster, 30 Kan. 28 Pac. 597; Haskins v. Ralston, 365, 2 Pac. 628. MINN.— State v. 69 Mich. 63, 13 Am. St. Rep. 376, Greenwood, 76 Minn. 211, 77 Am. 37 N. W. 45. St. Rep. 632, 78 N. W. 1042, 1117. 10 See, infra, § 664. TEX.— Cagle V. State, 39 Tex. Cr. ii DEL.- State v. Marvels, 2 Rep. 109, 44 S. W. 1097; Webb v. Harr. 527. KAN.— State v. Mc- State, 39 Tex. Cr. Rep. 534, 47 Naspy, 58 Kan. 691, 38 L. R. A. S. W. 356. 756, 50 Pac. 895. N. H.— State v. Kentucky rule seems to be to Bryant, 17 N. H. 323. TEX. — the contrary, as expressed in Franklin v. State, 46 Tex. Cr. Rep. Stowers v. Com., 75 Ky. (12 Bush) 181, 78 S. W. 934. 342; Com. v. Williams, 76 Ky. 12 Huffman v. Com., 27 Va. (6 (13 Bush) 267, and Com. v. Mar- Rand.) 685. tin, 1 Ky. L. Rep. 279. But of 13 Com. v. Ervine, 4 Va. (2 Va. these decisions it has been said: Cas.) 337; Huffman v. Com., 27 "We do not deem these decisions Va. (6 Rand.) 685. sound, and decline to follow 1 As to necessity for alleging them." — State v. Greenwood, 76 time, see, supra, §| 162 et seq. I. Crlm. Proc— 57 898 CRIMINAL PEOCEDUEE. §§ 660, 661 the time f the reason for tMs rule being to show that the offense charged was committed within the period of limitation of statute. It is to be observed that while the offenses of forgery and of uttering forged instruments are separate and distinct offenses,' and should be so pleaded,* yet as regards the running of the statute of limitations they are considered as one offense.® § 660. Name of defendant. An indictment or information charging forgery of an instrument pro- hibited by statute should be certain as to the name of the accused,^ the general rule being that the given or Chris- tian name should be set out in full,^ although the surname may be laid as an alias ;^ but it has been held that an in- dictment charging the forgery of an instrument purport- ing to be the act of Lorenz Brown, the name being set out in the indictment as L. Brown, will not be void or objec- tionable for uncertainty.* § 661. Name of person to be defbauded.^ An indictment or information charging forgery should set out the name of the person intended to be defrauded ; and in a case in which the name of a deceased person is forged to a promissory note, or other instrument for the payment of money, the indictment or information may 2 McGuire v. State, 37 Ala. 161. proper allegations as to intent to 3 State V. McCormack, 56 Iowa defraud, etc., does not state two " 585, 9 N. W. 916; State v. Blodgett, offenses within Pen. Code, § 1834. 143 Iowa 578, 21 Ann. Cas. 231, 121 —State v. Mitten. 36 Mont. 376. 92 N. W. 685; Huff v. Com., 19 Ky. L. P^c. 969. Rep. 1064, 42 S. W. 907; People v. 4 See, infra, § 693, et seg. Van Alstine, 57 Mich. 69, 6 Am. 5 state v. Leekins, 81 Neb. 280, Cr. Rep. 272, 23 N. W. 594; State 115 n. w. 1080. V. Carragin, 210 Mo. 351, 16 ^ g g ^^^ L. R. A. (N. S) 561, 109 S. W. 553; wells v. Territory, 1 Okla. == ^ee, supra. §140. Cr. 469, 98 Pac. 483. ' See, supra, § 141. Montana rule is that an indict- * State v. Karlowskl, 142 Mo. ment or information charging 463, 44 S. W. 244. forgery and the uttering of the 1 As to person to be defrauded, instrument thus forged, with the see, fully, post, § 668. §662 POEGERY. 899 allege the act was done with the intent to defraud the estate of such deceased person, the estate of a decedent being, in law, regarded as a person,^ although there is authority to the effect that an estate is not a "person."^ Under the statutory provisions in some states* it is only necessary to allege the intent to defraud without desig- nating the person intended to be defrauded.** ^FlCTITIOTJS NAME SIGNED. PictltioUS §662. name purporting to be signed to an instrument for the payment of money, made with the intention to defraud, was punishable as forgery at common law.^ Under stat- 2 Billings V. State, 107 Ind. 54, 7 Am. Or. Rep. 188, 6 N. E. 914, 7 N. E. 763; Brewer v. State, 32 Tex. Cr. Rep. 74, 40 Am. St. Rep. 760, 22 S. W. 41. See Ginn v. Col- lins, 43 Ind. 271; Henderson v. State, 14 Tex. 503. 3 See Cole v. Manson, 42 Misc. (N. Y.) 149, 85 N. Y. Supp. 1011. 4 As under North Carolina Code, § 1191. 5 State V. Cross, 101 N. C. 770, 7 S. E. 715; affirmed in 132 U. S. 131, 33 L. Ed. 287, 10 Sup. Ct. Rep. 47. 1 2 Kerr's Whart. Crim. Law, §§ 864, 865; 2 Russ. on Crimes (9th Am. ed.), p. 730. It Is well established that a forgery may be committed by signing a fictitious name. See, among other cases: CAL. — Peo- ple V. Eppinger, 105 Cal. 36, 38 Pac. 538; People v. Terrill, 133 Cal. 120, 65 Pac. 303; People v. Nishiyama, 135 Cal. 299, 67 Pac. 776 (under Kerr's Cyc. Pen. Code, § 476) ; People v. Chretein, 137 Cal. 450, 70 Pac. 305 (under Kerr's Cyc. Pen. Code, § 470). LA.— State V. Hahn, 38 La. Ann. 169. MASS.— Com. V. Costello, 120 Mass. 370. MO. — State v. Warren, 109 Mo. 430, 32 Am. St. Rep. 681, 19 S. W. 191. NEB. — Randolph v. State, 65 Neb. 523, 91 N. W. 356. N. H.— State V. Hayden, 15 N. H. 355. ORE.— State v. Wheeler, 20 Ore. 192, 23 Am. St. Rep. 119, 10 L. R. A. 779, 25 Pac. 397; State v. Kelliher, 49 Ore. 82, 88 Pac. 867; TEX.- Brewer v. State, 32 Tex. Cr. Rep. 74, 40 Am. St. Rep. 760, 22 S. W. 41; Davis v. State, 34 Tex. Cr. Rep. 117, 29 S. W. 478; Hocker V. State, 24 Tex. Cr. Rep. 359, 53 Am. St. Rep. 716, 30 S. W. 783; Allen V. State, 44 Tex. Cr. Rep. 63, 100 Am. St. Rep. 839, 68 S. W. 286. FED.— United States v. Mitchell, Baldw. 366, Fed. Caa. No. 15787. ENG. — R. V. Rogers, 8 Car. & P. 629, 34 Eng. C. L. 930; R. v. Ashby, 2 Fost. & F. 560; R. v. Lockett, 1 Leach 94; R. v. Shepherd, 1 Leach 226; R. v. Parkes, 2 Leach C. C. 775. Subscribing fictitious name to check by accused, and passing it as his own, credit being given to accused and not to the fictitious name, has been held not to be forgery. — R. v. Martin, 49 L. J. C. C. R. 11, 41 L. T. (K. S.) 531, nOO CRIMINAL riiOUKUUw^i... § 662 ute in some of the states^ a distinction is drawn between the making of such an instrument purporting to be signed by the name of an existing person, firm, or corporation, and the making of such instrument purporting to be signed by a fictitious name of some person, firm, or corporation which in reality has no existence ; and where such statu- tory distinction is drawn, the indictment or information seeking to charge the offense of executing such instru- ment in a fictitious name, must bring the offense sought to be charged clearly within the requireinents and con- ditions of the statute, and must show on its face the making, with intent to defraud another, of an obligation calling for the payment of money, purporting to be signed in the name of some bank, corporation, co-part- nership, or individual ; must distinctly negative the exist- ence of such bank, corporation, co-partnership, or indi- vidual; and must further allege that the instrument purported to be signed by such fictitious name,^ and that the name purported to be the name of a bank, or of a corporation, or of a co-partnership, or of an individual, as the case may be, it not being sufficient merely to charge the maldng and passing of a check, or other similar instrument for the payment of money, with the averment that there was no bank, corporation, co-partnership, or individual in existence of the name by which the said in- strument was purported to have been signed.* Where the fictitious name purporting to be signed to the instrument appears to be that of either a corporation or a co-part- nership, it must be alleged which of the two it purports 1 Crim. L. Mag. 266, 21 Alb. L. J. 2 Kerr's Cyc Pen. Code of Cali- 91, 4 Val. L. J. 115. fornia, § 476. The same has been held where 3 People v. Dowd, 2 Cal. XJnrep. accused signed name of a pre- 68; People v. Elliott, 90 Cal. 586, tended firm, composed of himself 27 Pac. 433; People v. Eppinger, and another.— Com. v. Baldwin, 77 105 Cal. 36, 38 Pac. 538. Mass. (11 Gray) 197, 71 Am. Deo. ■* People v. Eppinger, 105 Cal. 36, 703. 38 Pac. 538. § 663 FORGEBT. 901 to be, and that tlie one alleged has no existence;® like- wise where the fictitious name purporting to be signed to the instrument appears to be that of an individual, it must be alleged that the name purports to be that of an individual, and aver that there is no such individual in existence.® Designating as "forgery" the offense of making an in- strument for the payment of money purporting to be signed by a fictitious name, is immaterial, where the in- dictment is otherwise sufficient.'^ § 663. Thing prohibited — ^Valxte. An indict- ment or information charging forgery must show that the written instrument complained of was one of the instruments designated in the statute under which prose- cution is had, and the allegation must be such as to bring the instrument clearly within the statute ; but the indict- ment or information need not further allege how the in- strument was that thing, or how it could be used as an instrument of fraud, or that it was in fact so used.^ Where the statute makes it a crime to forge or counter- feit, among other things, "any warrant, order or re- quest for the payment of money, or the delivery of any property, or writing of value," an indictment or infor- mation charging the forgery of an application for an insurance policy, is bad which does not aver, in the lan- guage of the statute, that the policy was a "writing of value" ;^ but where the statute does not make the value of the forged instrument a part of the description, or an 5 Id. of money, is a species of "forg- 6 Id. ery." See People v. Lee, 128 Cal. 7 Id. See People v. Morley, 8 330, 60 Pac. 854; People v. Ten-ill, Cal. App. 374, 97 Pac. 85; People 133 Cal. 120, 65 Pac. 303. V. Izlar, 8 Cal. App. 604, 97 Pac. i Com. v. White, 145 Mass. 392, 6S6. 7 Am. Or. Rep. 192, 14 N. B. 611. Fictitious cliecl<, or other instru- 2 State v. Horan, 68 N. H. 548, ment in writing for the payment 7 Am. Cr. Rep. 191, 15 Atl. 20. 902 CRIMINAL PROCEDURE. §§ 664, 665 ingredient of tlie offense, there need be no allegation re- specting the value thereof.* § 664. Manner and means op forgekt. It is not necessary to set out the particular acts in which the forgery consisted,^ the reason being that such facts are not essential ingredients of the offense.^ That is to say, how and in what manner the party was to be defrauded being no ingredient of the crime, but a mefe matter of evi- dence, need not be set out in the indictment.* But an in- dictment or information can not charge a specific offense by the use of general terms, without setting out all the facts and circumstances ;* hence, it is insufficient to charge that the defendant committed the crime of altering a genuine instrument,® or of uttering a false and altered iastrument without alleging how he had committed it.® § 665. Lack oe atjthoeitt. An indictment or information charging forgery, or the uttering of a forged instrument, prohibited by statute, must further allege that it was done without authority,^ but it need not be 3 Chidester v. State, 25 Ohio St Com. v. Costello, 120 Mass. 358. 433, 2 Am. Cr. Rep. 153. MICH. — People v. Van Alstine, 57 1 People V. Di Ryana, 8 Cal. App. Mich. 69, 6 Am. Cr. Rep. 272, 23 333, 96 Pac. 919; People v. Van N. W. 594. MISS. — State v. Bar- Alstine, 57 Mich. 69, 6 Am. Cr. ber, 105 Miss. 390, 62 So. 361. Rep. 272, 23 N. W. 594; Bennett N. J.— West v. State, 22 N. J. L. V. State, 36 S. W. 947. (2 Zab.) 212. TBNN.— Snell v. The steps necessary to perfect State, 21 Tenn. (2 Humph.) 347. the fraud need not be set out. — FED. — United States v. Andem, State V. Zimmerman, 79 S. C. 289, 158 Fed. 996. 60 S. E. 680. 4 State v. Leo, 108 La. 496, 15 2 People V. Van Alstine, 57 Mich. Am. Cr. Rep. 272, 32 So. 447. 69, 6 Am. Cr. Rep. 272, 23 N. W. 6 See, infra, § 666. 594. « State v. Leo, 108 La. 496, 15 3 ARK.— Snow V. State, 85 Ark. Am. Cr. Rep. 272, 32 So. 447. 203, 122 Am. St. Rep. 23, 107 S. W. i Com. v. Bowman, 96 Ky. 40, 980. CAL. — People v. Johnson, 7 27 S. W. 816; Snyder v. State, Cal. App. 127, 93 Pac. 1042; People 8 Ohio C. C. 463, 4 Ohio Cir. Dec. V. Di Ryana, 8 Cal. App. 333, 96 279. Pac. 919. GA. — Travis v. State, 83 Thus, an indictment alleging ac- Ga. 372, 9 S. E. 1063. MASS. — cused did "forge and alter" a cer- § 666 FOEGEET. 903 alleged tliat tlie instrument was made or altered without the knowledge of the person sought to be made liable.* However, it has been said that an indictment or informa- tion charging that accused "did unlawfully, etc., forge a certain deed" necessarily imports that the act was done without authority ;* and it has also been said that where the indictment is not predicated upon a statute, or that portion of the statute, defining forgery not qualified by the phrase ' ' knowing that he had no authority so to do, ' ' need not allege that the accused had no authority to exe- cute or utter the instrimaent.* §666. Guilty knowledge or accused. Whether an indictment or information charging forgery should also charge guilty knowledge on the part of the accused, we have already seen,^ depends upon the par- ticular wording of the statute under which the prosecu- tion is had. Where the guilty knowledge is a part of the definition of forgery, guilty knowledge must, of course, be averred in the indictment or information f in all other cases, it seems that the allegation of guilty knowledge is confined to the charge of uttering or passing forged instruments,^ in which latter case it is insufficient to tain note, without alleging that it 3 Bennett v. State, 62 Ark. 516, was done "without authority," is 36 S. W. 947. insufScient. — Com. v. Bowman, 96 4 People v. Peterson, 17 Cal. Ky. 40, 27 S. W. 816. App. 734, 21 Pac. 703. An allegation that the accused i See, supra, § 665, footnote 4. feloniously and falsely altered a 2 See People v. Peterson, 17 check by adding one hundred dol- Cal. App. 734, 21 Pac. 703; Com. lars to the amount for which v. Shissler, 9 Phila. (Pa.) 587. drawn, and that it was done with 3 CAL. — People t. Mitchell, 92 the intent to defraud the drawer, Cal. 590, 28 Pac. 597. IND. — Pow- sufficlently alleges that the altera- ers v. State, 87 Ind. 97, distin- tlon was made without the con- guished in State v. Williams, 139 sent or authority of the drawer. — Ind. 43, 47 Am. St. Rep. 255, 38 State V. Stickler, 90 Kan. 783, 136 N. E. 339. KY.— Lockhard v. Com., Pac. 329. 87 Ky. 201, 8 S. W. 266. TENN.— 2 Eldridge v. Com., 21 Ky. L. Buren v. State, 84 Tenn. (16 Lea) Rep. 1088, 54 S. W. 7. 61. TEX.— Henderson v. State, 14 904 CRIMINAL PBOCEDUEB. § 667 allege merely that the passing or uttering was done "felo- niously and falsely."* It has been said that where, under the statute, an averment of guilty knowledge is required to the validity of the indictment or information, an alle- gation that the act was "knowingly" done, or done "well knowing, ' ' and the like, will be sufficient to take the place of, and dispense with a positive averment of guilty knowledge.* It has been said that an indictment or infor- mation charging the uttering and publishing a forged promissory note which alleges that accused knew the note " to be false and forged, ' ' need not specifically allege that accused Imew at the time he uttered and passed the instrument that it was forged ;* that charging the forging of a false order for the payment of money, with intent to defraud, and passing it as true, after judgment, suffi- ciently charges knowledge on the part of the accused;'^ and that an unlawful, false and fraudulent uttering and passing a written instrument, with intent to defraud, being charged, the want of a specific allegation of knowl- edge does not deprive tlie accused of any substantial legal right.* § 667. Intent to dbpeatjd — ^In genekal. The essence of the crime of forgery is ah intent on the part of the accused to defraud,^ and an indictment or in- Tex. 503; Morris v. State, 17 Tex. charge of knowledge on his part App. 666. FED. — United States v. of his own act, and especially Carll, 105 TJ. S. 611, 26 L. Ed. 1135. where the question is not raised 4 Henderson v. State, 14 Tex. before the trial. — State v. Kruger, 503. 34 Nev. 302, 122 Pac. 483. D See, supra, § 654; also. State v. e State v. Burgson, 53 Iowa 318, Atkins, 8 BlacM. (Ind.) 458; Mc- 5 N. W. 167. Ginnis v. State, 24 Ind. 500; State 7 State v. Hauser, 112 La. 313, V. Williams, 139 Ind. 43, 47 Am. St. 36 So. 396. Rep. 255, 38 N. E. 339, distinguish- 8 Com. v. Hall, 24 Pa. Sup. Ct. ing an inadvertent ruling in Pow- 558. ers V. State, 87 Ind. 97. i CAL.— People v. Mitchell, 92 A charge that the defendant did Cal. 590, 28 Pac. 597; People v. feloniously and falsely forge an Smith, 103 Cal. 563, 37 Pac. 516. instrument includes a sufficient FLA. — Hawkins v. State, 28 Fla. §667 FOKGEET. 905 formation which fails to allege, in the accusing part, an intent on the part of the accused to defraud, will be insufficient,- unless the particular statute under which 363, 9 So. 652; Darby v. State, 41 Fla. 274, 26 So. 315. IDAHO— State V. Swensen, 13 Idaho 1, 81 Pac. 379. KAN.— State v. Gavi- gan, 36 Kan. 322, 13 Pac. 554. LA. — State v. Boasso, 38 La. Ann. 202. MD. — ^Arnold v. Cost, 3 Gill & J. 219, 22 Am. Dec. 302. MASS. — Com. V. Ladd, 15 Mass. 526. MO.— State v. Phillips, 78 Mo. 49; State v. Jackson, 89 Mo. 561, 1 S. W. 760; State v. "Warren, 109 Mo. 430, 32 Am. St. Rep. 681, 19 S. W. 191. N. J.— West V. State, 22 N. J. L. (2 Zab.) 212, 233. N. Y. — People v. Wlman, 85 Hun 320, 9 N. Y. Cr. Rep. 490, 32 N. Y. Supp. 1037; affirmed, 148 N. Y. 29, 12 N. Y. Cr. Rep. 77, 42 N. E. 408. OHIO— Fonts V. State, 8 Oljio St. 98; Drake v. State, 19 Ohio St. 211. VT.— State v. Shelters, 51 Vt. 105. Intent to have forged instrument uttered and passed being de- nounced by the statute, an allega- tion of an intent to "injure and defraud" is insufficient. — State v. Hesseltine, 130 Mo. 468, 32 S. W. 983. Under statute denouncing forg- ery "with intent to defraud any person whatsover," an indictment need not allege person to be de- frauded resided within the United States. — State v. Houseal, 2 Brev, L. (S. C.) 219. From the intent to pass a forged instrument as good, the law infers a purpose to defraud a person who may be prejudiced. — State v. Patch, 21 Mont. 534, 55 Pac. 108; State V. Cleavland, 6 Nev. 181. 2 ALA. — State v. Glvens, 5 Ala. 759; Jones v. State, 50 Ala. 163. CAL.— People v. Mitchell, 92 Cal. 590, 28 Pac. 597; People v. Smith, 103 Cal. 563, 37 Pac. 516; People V. Turner, 113 Cal. 278, 45 Pac. 331; People v. Elphis, 7 Cal. Unrep. 150, 72 Pac. 838. DEL.— State v. Hegeman, 2 Penn. 143, 44 Atl. 623. FLA. — Hawkins y. State, 28 Fla. 363, 9 So. 652. GA.— Phillips v. State, 17 Ga. 459; Williams v. State, 51 Ga. 535, 1 Am. Cr. Rep. 227; Gibson v. State, 79 Ga. 344, 5 S. E. 76. ILL.— Cross v. People, 47 111. 152, 95 Am. Dec. 474. IND.— Shinn v. State, 57 Ind. 144; Bill- ings V. State, 107 Ind. 54, 57 Am. Rep. 77, 6 N. E. 914, 7 N. E. 763. IOWA— State v. Maxwell, 47 Iowa 454. KAN. — State v. Gavigan, 36 Kan. 322, 13 Pac. 554. KY.— Moore v. Com., 92 Ky. 630, 18 S. W. 833. LA.— State v. Nelson, 28 La. Ann. 46; State v. Foster, 32 La. Ann. 34; State v. Maas, 37 La. Ann. 292; State v. Boasso, 38 La. Ann. 202; State v. Adams, 39 La. Ann. 238, 1 So. 455. MB.— State V. Kimball, 50 Me. 422; Rounds V. State, 78 Me. 42, 2 Atl. 673. MASS. — Com. v. Ladd, 15 Mass. 526; Com. v. Butterick, 100 Mass. 1, 97 Am. Dec. 65; Com. v. Brown, 147 Mass. 585, 9 Am. St. Rep. 736, 18 N. E. 587. MICH.— People V. Van Alstine, 57 Mich. 69, 6 Am. Cr. Rep. 272, 23 N. W. 594. MINN.— State v. Adamson, 43 Minn. 196, 45 N. W. 152. MISS.— Cunningham v. State, 49 Miss. 685; Harrington v. State, 54 Miss. 490. MO.— State v. Yerger, 86 Mo. 33; State v. Phillips, 78 Mo. 49; 906 CRIMINAL PROCEDURE. §667 the instrument is drawn dispenses with such an allega- tion.^ The indictment or information need not allege that the forged instrument was presented as genuine ;* and the fraudulent intent being stated, it is not necessary to ex- plicitly and particularly set out the means intended to be employed to effect the fraud.^ The fraud need not be al- leged to have been actually perpetrated, in forgery in any of its phases.* The essence of the crime is the making of state V. Jackson, 89 Mo. 561, 1 S. W. 760; State v. Rucker, 93 Mo. 88, 5 S. W. 609; State v. Warren, 109 Mo. 430, 32 Am. St. Rep. 681, 19 S. W. 191; State v. Rowlen, 114 Mo. 626, 21 S. W. 729; State v. Gullette, 121 Mo. 447, 26 S. W. 354. N. J.— West V. State, 22 N. J. L. (2 Zab.) 212, 233. N. Y.— Noakes V. People, 25 N. Y. 380; Paige v. People, 3 Abb. App. Dee. 439, 6 Park. Cr. Rep. 683; Harris v. Peo- ple, 9 Barb. 664; People v. Martin, 2 N. Y. Cr. Rep. 51. N. C— State V. Leak, SO N. C. 403; State v. Hastings, 86 N. C. 599; State v. Weaver, 94 N. C. 836, 55 Am. Rep. 647; State v. Cross, 101 N. C. 770, 9 Am. St. Rep. 53; sub nom. State V. White, 7 S. E. 715; State v. Hall, 108 N. C. 776, 13 S. E. 189. OHIO— Barnum v. State, 15 Ohio 717, 45 Am. Dec. 601; Fouts v. State, 8 Ohio St. 98; Drake v. State, 19 Ohio St. 211; Turpin v. State, 19 Ohio St. 540. ORB. — State v. Lurch, 12 Ore. 104, 6 Pac. 411. PA.— McClure v. Com., 86 Pa. St. 335; Com. v. MulhoUand, 12 Phila. 608. TENN.— Snell v. State, 21 Tenn. (2 Humph.) 347; State v. Haynes, 46 Tenn. (6 Cold.) 550. TEX.— Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248. VT.— State V. Shelters, 51 Vt. 105. W. VA.— State V. Henderson, 29 W. Va. 147, 1 S. E. 225; State v. Coontz, 31 W. Va. 127, 5 S. E. 328; State v. Tlngler, 32 W. Va. 546, 25 Am. St. Rep. 830, 9 S. E. 935. FED.— United States V. Carll, 105 V. S. 611, 26 L. Ed. 1135; United States v. Law- rence, 13 Blatchf. 211, Fed. Cas. No. 15572; United States v. Shell- mire, 1 Baldw. 370, Fed. Cas. No. 16271; United States v. Jolly, 37 Fed. 108. Forging and uttering a check both being charged, but the indict- ment charging the uttering and passing only to have been done with intent to defraud, the charge of the forgery will be insufficient, and vice versa. — People v. Mitch- ell, 92 Cal. 590, 28 Pac. 597. 3 Phillips V. State, 17 Ga. 459; Whatson v. State, 78 Ga. 349; State V. Taylor, 117 Mo. 181, 22 S. W. 1103. See, also, infra, § 669. 4 Com. V. Ladd, 15 Mass. 526. 5 Jackson v. Com., 17 Ky. L. Rep. 1197, 34 S. W. 14; West v. State, 22 N. J. L. (2 Zab.) 212; Com. v. Bachop, 2 Pa. Sup. Ct. 294; Snell v. State, 21 Tenn. (2 Humph.) 347. 6 Arnold v. Cost, 3 Gill & J. (Md.) 219, 22 Am. Dec. 302; Com. V. White, 145 Mass. 392, 7 Am. Cr. Rep. 192, 14 N. B. 611. See Com. v. Ladd, 15 Mass. 526; Com. v. Cos- tello, 120 Mass. 358. § 667 FORGERY. 907 the false writing witli the e\il intent that the instrument forged shall be used as good.'' Failure to allege intent, on the part of the accused to defraud in the charging part, is fatal even though the in- dictment subsequently charges that the accused did "un- lawfully, feloniously, and fraudulently make and forge," and that he did "falsely, fraudulently, knowingly, feloni- ously, and with intent to defraud, prejudice and damage" a named person, ' ' utter, publish and pass the same. ' ' * The criminal intent has been said to be sufficiently charged by the use of the words "wilfully and feloniously";® charg- ing that accused did feloniously utter and publish as true a named forged instrument, with intent to defraud, know- ing the same to be forged, has been said to be a sufficient allegation of intent;^" and charging accused with "unlaw- fully and feloniously" causing an instrument to be forged, "with intent to defraud," has been said to be sufficient, without expressly averring that it was done "with a felonious intent. "^^ Alteration of a public rec- ord, with intent to defraud, being charged, an indict- ment or information setting out the record as it existed before the alleged alteration, without a repetition of the charge of an intent to defraud in that portion of the in- strument charging the alteration, has been said to be suffi- cient.^^ Language of statute: While intent is a necessary ele- ment in every charge of forgery, in any of its phases, yet an indictment or information drawn in the language of 7 state V. Patch, 21 Mont. 534, (N. Y.) 215, 15 N. Y. Cr. Rep. 79, 55 Pac. 108. See Bennett v. State, 65 N. Y. Supp. 720. 62 Ark. 532, 36 S. W. 947; People jo Harrison v. State, 36 Ala. 248. V. Ferris, 56 Cal. 442; People v. ,, o* -. mi.. -..^ -.^ Turner, 113 Cal. 278, 45 Pac. 331; " ^*^*« ^- ^°^'«- "^ ^'>- "^' Com. v! Henry, 118 Mass. 460. ^2 S. W. 1076; State v. Reed, 141 8 People V. Mitchell, 92 Cal. 590, Mo. 546, 42 S. W. 1149. 28 Pac. 597, 788. 12 State v. Van Auken, 98 Iowa 9 In re Van Orden. 32 Misc. 674, 68 N. W. 454. 908 CRIMINAL PEOCEDUKB. §668 the statute, is sufficient/* notwithstanding the fact that it fails to specifically allege the accused's intent to defraud a particular person,^* Thus, in an indictment or infor- mation charging the uttering of a forged order for the pajTuent of money, in the language of the statute, it is not necessary to name the person on whom the order was passed, or the person whom the accused intended to de- fraud. ^^ Person intended to be defrauded. §668. In the absence of statutory provisions to the contrary, the common-law rule, requiring the name of the person intended to be defrauded to be set out, prevails,^ and an indictment or information which fails to thus set out the name of the party intended to be defrauded, or state that the name is to the grand jury unknown,^ will be insuffi- 13 IOWA— state v. Maxwell, 47* Iowa 454. MO. — State v. Phillips, 78 Mo. 49; State v. Yerger, 86 Mo. 33; State v. Rowlen, 114 Mo. 626, 21 S. W. 729; State v. GuUette, 121 Mo. 447, 26 S. W. 354. ORB.— State V. Lurch, 12 Ore. 104, 6 Pac. 411. PA. — Com. V. McClure, 12 Phila. 579, 34 Leg.' Int. 204. FED.— United States v. Jolly, 37 Fed. 108. 11 IOWA— State v. Maxwell, 47 Iowa 454. MO.— State v. Phillips, 78 Mo. 49 ; State v. Yerger, 86 Mo. 33; State v. Rowlen, 114 Mo. 626, 21 S. W. 729; State v. GuUette, 121 Mo. 447, 26 S. W. 354. ORB.— State V. Lurch, 12 Ore. 104, 6 Pac. 411. PA. — Com. V. McClure, 12 Phila. 579, 34 Leg. Int. 204. 15 state V. Adams, 39 La. Ann. 238, 1 So. 455. 1 CAL.— People v. Blphis, 7 Cal. Unrep. 150, 7 Pac. 858. DBL.— State V. Hegeman, 2 Penn. 143, 44 Atl. 623. FLA. — State v. Gavl- gan, 36 Kan. 322, 13 Pac. 554. GA. — Williams v. State, 51 Ga. 535, 1 Am. Cr. Rep. 227. KY.— Barnes v. Com., 101 Ky. 556, 41 S. W. 772; Huff v. Com., 19 Ky. L. Rep. 1064, 42 S. W. 907. MISS.— Cunningham v. State, 49 Miss. 685. OHIO— Bamum v. State, 15 Ohio 717, 45 Am. Dec. 601. PA.— Com. V. Bachop, 2 Pa. Sup. Ct. 294. R. I.— State V. Murphy, 17 R. I. 698, 15 L. R. A. 550, 24 Atl. 473. In England an intent to defraud a particular person is necessary, but the name of the person need not be alleged. — R. v. Hodgson, Dears. & B. C. C. 3, 7 Cox C. C. 122. Uttering a forged check charged, indictment or information failing to allege the name of the party in- tended to be defrauded is insuf- ficient to sustain a conviction. — People V. Elphls, 7 Cal. Unrep. 150, 72 Pac. 838. 2 Barnes v. Com., 101 Ky. 556, 41 S. W. 772; Huft v. Com., 19 Ky. L. Rep. 1064, 42 S. W. 907. §668 FORGERY. 909 cient,® except, it seems, in those cases in which the in- dictment or information is without a purport clause, but sets out the instrument according to its tenor,* and also where the indictment uses the language of the statute.-' Thus, in an indictment or information charging the ut- tering of a forged order, the name of the person to whom it was passed, being a material part of the description of the offense, must be given, or a statement made that the name of the person was to the grand jury unknown.® It may be charged that the person intended to be defrauded was a bank,'' without specifying of whom the bank con- sisted;^ a corporation;® a county;^" the estate of a de- 3 Christian nam« must be given or it must be alleged that such Christian name is to the grand jury unknown. — Zellers v. State, 7 Ind. 659. Name wrongly written but In- tended for a specified individual may be set out as the name forged, with extrinsic averments showing who was the person whose name was intended to be written. — Allen v. State, 44 Tex. Cr. Rep. 63, 100 Am. St. Rep. 839, 68 S. W. 286, following Rollins v. State, 22 Tex. App. 548, 58 Am. Rep. 659, 3 S. W. 759; Crawford v. State, 40 Tex. Cr. Rep. 344, 50 S. W. 378. 4 Howard v. State, 37 Tex. Cr. Rep. 494, 36 S. W. 475. 5 Alleging uttering of forged order for the payment of money charged in the language of the statute, it is unnecessary to name the person on whom the order was passed, or the person whom the accused intended to defraud. — State v. Adams, 39 La. Ann. 238, 1 So. 455. See, also, supra, § 667, footnotes 12-14. « State v. Murphy, 17 R. I. 698, 15 L. R. A. 550, 24 Atl. 473. 7 Banl< charged as person to be defrauded by accused in signing the name of a third person to a note, indictment or information need not aver of what accused in- tended to defraud the bank. — Tay- lor V. Com., 28 Ky. L. Rep. 1348, 92 S. W. 292. Intent to defraud bank may be charged where the allegation is that accused drew an order upon the cashier as such. — State v. Jones, 1 McMul. L. (S. C.) 236, 36 Am. Dec. 257. 8 State V. Phelps, 11 Vt. 117, 34 Am. Dec. 672. 9 Intent mentioned In the stat- ute being to defraud any particu- lar corporation, a failure to so lay it in the Indictment will be fatal. — Cunningham v. State, 49 Miss. 685. 10 County Is a "person." — Lut- terell v. State, 85 Tenn. 232, 4 Am. St. Rep. 760, 1 S. W. 886. See Gar- ner V. State, 73 Tenn. (5 Lea) 213; Foute V. State, 83 Tenn. (15 Lea) 712. •JIO CRIMINAL PKOCEDUEE. §669 ceased person ;^^ the person whose name was forged,^^ or the person to whom the forged instrument was passed or uttered ;^^ the payee of a certificate of deposit, whose in- dorsement has been forged thereon ;^* the state ;^® a town- ship board of education,^^ and the like. GbnekaIi intent to defraud. In §669. many of the states, it has been provided by statute that the name of the party intended to be defrauded need not be set out,^ and where such statutory provisions exist, a general allegation of intent to defraud, without setting out the name of any particular person to be defrauded, XI See, supra, § 661,' footnote 2. 12 Shinn v. State, 57 Ind. 144; State Vi Stegman, 62 Kan. 476, 63 Pac. 746; State v. Patch, 21 Mont. 534, 55 Pac. 108; State v. Cleav- land, 6 Nev. 181. Alleging intent to defraud in forging a bond purporting to be the act of another whose name was signed thereto, held to be sufiScient to show -thai accused in- tended to defraud the person whose name he feloniously signed to the bond. — State v. Stegman, 62 Kan. 476, 63 Pac. 746. 13 State V. Patch, 21 Mont. 534, 55 Pac. 108; State v. Cleavland, 6 Nev. 181. 14 State V. Patch, 21 Mont. 534, 55 Pac. 108. 15 Moore v. Com., 92 Ky. 630, 18 S. W. 833; Cunningham v. State, 49 Miss. 685; Lutterell v. State, 85 Tenn. 232, 4 Am. St. Rep. 760, 1 S. W. 886. See Garner v. State, 73 Tenn. (5 Lea) 213; Foute V. State, 83 Tenn. (15 Lea) 712. Intent to defraud the state should be alleged on a charge of an attempt to forge an auditor's warrant on the state treasury. — Cunningham r. State, 49 Miss. 685. 16 Intent to defraud the town- ship board of education may be alleged where it is charged ?.c- cused uttered and published a false and altered order, purport- ing to be drawn on him as treas- urer by the township clerk. — Greg- ory V. State, 11 Ohio St. 329. 1 See: GA. — Dukes v. State, 94 Ga. 393, 21 S. B. 54; Brazil v. State, 117 Ga. 32, 43 S. B. 460. LA. — State v. Gaubert, 49 La. Ann. 1692, 22 So. 930. MD.— Arnold v. Cost, 3 Gill & J. 219, 22 Am. Dec. 302. MO. — State v. Warren, 109 Mo. 430, 32 Am. St. Rep. 681, 19 S. W. 191. N. Y. — ^People v. Mar- tin, 2 N. Y. Cr. Rep. 51. ORB.— State V. McBlvain, 35 Ore. 365, 58 Pac. 525. TBX.— Allen v. State, 44 Tex. Cr. Rep. 63, 100 Am. St Rep. 839, 68 S. W. 286; Crayton v. State, 47 Tex. Cr. Rep. 88, 80 S. W. 839. W. VA.— State v. Tingler, 32 W. Va. 546, 25 Am. St. Rep. 830, 9 S. E. 935. FED. — United States V. Jolly, 37 Fed. 108. § 670 POEGERT. 911 is sufficient.^ Under a statute providing that an indict- ment or information charging forgery need not allege the particular person intended to be defrauded, the allegation of the name of the person whose name was forged, for the purpose of showing the fraudulent intent of the in- strument, does not vitiate the indictment or information.' Thus, an indictment charging the forgery of a bank check, without alleging in the charging part an intent to defraud another, will be sufficient, although it subse- quently charges an "intent to defraud the said" person named.* Where the effect of the forgery will not of neces- sity defraud a particular person, but will defraud some one, a general allegation of intent to defraud must be made.' § 670. Altering genuine instrument. Any change in or alteration of a genuine written instrument, in a material part thereof, with intent to injure or de- fraud, by means of which alteration the instrument is given a new effect, constitutes a forgery of the whole in- strument,^ and may be specifically alleged to have been 2 ALA,— Williams v. State, 126 3 Benson v. State, 122 Ala. 100, Ala. 50, 28 So. 632. FLA.— Darby 26 So. 119; affirmed, 124 Ala. 92, V. State, 41 Fla. 274, 26 So. 315. 27 So. 1. LA. — State v. Foster, 32 La. Ann. 4 State v. Swensen, 13 Idaho 1, 34. MO. — State v. Gullette, 121 €1 Pac. 379. Mo. 447, 26 S. W. 354; State v. 6 State v. Gavigan, 36 Kan. 322, Turner, 148' Mo. 206, 49 S. W. 988. 13 Pac. 554. N. J. — Rolir V. State, 60 N. J. L. i CAL. — People v. Brothertbn, 47 576, 38 Atl. 673. Cal. 388. IND.— Bittings v. State, . "With intent to injure or de- 56 Ind. 101. IOWA — State v. Wood- fraud" provided by statute, a gen- erd, 20 Iowa 541; State v. Max- eral allegation of intent to defraud well, 47 Iowa 454. MASS. — Com. is sufficient. — State v. Foster, 32 v. Boutwell, 129 Mass. 124. MO.— La. Ann. 34. State v. Kattlemann, 35 Mo. 105. "With intent to injure or de- N. H.— State v. Bryant, 17 N. H. fraud any person" provided by 323. N. C. — State v. Gardiner, 23 statute, indictment or information N. C. (1 Ired. L.) 27. OHIO — must allege an intent to defraud, Haynes v. State, 15 Ohio St. 455. but need not name a particular S. C— State v. Floyd, 5 Strobh. L. person. — Darby v. State, 41 Fla. 58, 53 Am. Dec. 689. 274, 26 So. 315. Inserting additional figures in 912 CEIMINAL PROCEDUKE. §670 done by the alteration, or to consist of a forgery of tlie whole instrument.- An indictment or information charg- ing forgery by the alteration of a genuine instrument must clearly set forth the particulars in which the instru- ment was altered,^ so that the trial court may be able to say, as a matter of law, whether the alteration com- plained of was material and of such a character as to con- stitute the criminal offense of forgery;* and the altera- tion thus set out must be in a material part of the instrument and be such as to create, increase, diminish, or defeat some monetary obligation, or such as would secure the transfer of, or in some manner affect, property.** Copy of instrument alleged to have been altered must be set forth so as to show the changed or interpolated words and their materiality, or the reason for failure to do so must be stated, it being insufficient simply to allege mere lack of knowledge.® The instrmnent alleged to have the face of a promissory note, held not to be forgery in Com. v. Piaso, 17 Pa. Sup. Ct. 45, 18 Lane. L. Rev. 185. 2 CAL,. — People v. Brotherton, 47 Cal. 388. DEL. — State v. Mar- vels, 2 Harr. 527. FLA. — Hawkins V, State, 28 Fla. 363. IND.— Bit- tings V. State, 56 Ind. 101. IOWA— State V. Maxwell, 47 Iowa 454. ME.— State v. Flye, 26 Me. 312. MASS. — Com. V. Boutwell, 129 Mass. 124. N. C. — State v. Gardi- ner, 23 N. C. (1 Ired. L.) 27; State V. Weaver, 35 N. C. (13 Ired. L.) 491. S. C. — State v. Floyd, 5 Strobh. L. 58, 53 Am. Dec. 689. Altering an instrument may con- stitute a forgery, and should be set out as such. — State v. Floyd, 5 Strobh. L. (S. C.) 58, 53 Am. Dec. 689. 3 IND.— Sittings V. State, 56 Ind. 101; Kahn v. State, 58 Ind. 168. MINN.— State v. Riebe, 27 Minn. 315, 7 N. W. 262. MO.— State v. Fisher, 58 Mo. 256. MONT.— State v. Mitten, 36 Mont. 376, 92 Pac. 969; affirmed in 37 Mont 366, 127 Am. St. Rep. 732, 96 Pac. 926. TEX.— State v. Knippa, 29 Tex. 295. i IND.— Sittings V. State, 56 Ind. 101; Kahn v. State, 58 Ind. 168. MINN. — State v. Riebe, 27 Minn. 315, 7 N. W. 262. MONT.— State v. Mitten, 36 Mont. 376, 92 Pac. 969; affirmed in 37 Mont. 366, 127 Am. St. Rep. 732, 96 Pac. 926. N. H.— State v. Bryant, 17 N. H. 323. 5 IND.— Sittings v. State, 56 Ind. 101; Kahn v. State, 58 Ind. 168. KAN. — State v. McNaspy, 58 Kan. 691, 38 L. R. A. 756, 60 Pac. 895. LA. — State v. Means, 47 La. Ann. 1535, 18 So. 514. MO.— State v. Fisher, 58 Mo. 256. TEX.— State V. Knippa, 29 Tex. 295. « State V. McNaspy, 58 Kan. 691, 38 L. R. A. 756, 50 Pac. 895; State § 671 FORGERY. " 913 been changed may also be set forth according to its origi- nal tenor, with proper allegations made as to the altera- tions,'^ and may also include a copy of the forged instru- ment before alteration, and a copy of the instrument after alterations, and the alterations themselves.^ Materiality of the alteration must be shown either by a description of the alteration, or by setting out the tenor, substance, and effect of the instrument alleged to have been altered or forged, both before and after the alleged alteration.® Langiiage of the statute should usually be followed, and where the statute employs the word "alter," the in- dictment or information should employ that term in de- scribing the alleged offense;" and it seems that the offense may be thus described even though the word "alter" is not embraced in the statute under which the indictment is drawn," § 671. FaLiSIFicatiott of eecord ob of entries THEREIN. An indictment or information charging the fal- sification of records, or of the entry of false items therein, will be sufficient where the offense alleged is plainly and substantially set forth.'^ The indictment or information must clearly and unequivocally set forth the alteration charged to have been made by the accused,^ and must V. Bryant, 17 N. H. 323; Franklin the instrument. — Collum v. State, V. State, 46 Tex. Cr. Rep. 181, 78 «9 Tex. Cr. Rep. 165, 153 S. W. S. W. 934. 1144. T State V. Flye, 26 Me. 312; Biles s Bittings v. State, 56 Ind. 101. V. Com., 32 Pa. St. 529, 75 Am. Dec. lo Elsworth's Case, 2 East P. C. 508. 986. s Franklin v. State, 46 Tex. Cr. ii Id. Rep. 181, 78 S. W. 934. i State v. Van Auken, 98 Iowa Wherever the grand jury could 674, 68 N. W. 454; Phelps v. Peo- have known the facts they can pie, 6 Hun (N. Y.) 401, 49 How. Pr. not aver an excuse for not setting (N. Y.) 451; affirmed, 72 N. Y. 334; out the facts. The destruction of McConnell v. Kennedy, 29 S. C. the instrument by the accused 180, 7 S. E. 76. cloes not excuse the failure to set 2 State v. Henning, 158 Ind. 196, it out when some persons had seen 63 N. E. 207; Harrington v. State, I. Crim. Proc. — 58 914 CRIMINAL PROCEDURE. §671 charge a material alteration ;^ some of tlie cases hold that there must be specifically set out the particular part of the record falsified, in what manner the falsification was made, and must set forth the alleged false entry,* al- though there are other cases to the effect that a copy of the record need not be given/' It has been said that an indictment or information charging the forgery of a can- cellation of a bond redeemed, is sufficient without alleg- ing that the writing was one which, if genuine, might in- jure another f but under a statute denouncing false entries in books of account kept by any moneyed corporation, the indictment or information should show how any pecu- 54 Miss. 490; McConnell v. Ken- nedy, 29 S. C. 180, 7 S. E. 76. Court record alleged to have been altered by changing the fig- ures of certain court-house and jail warrant, entered In the treas- urer's ledger, which leaves it in doubt as to whether the forgery charged consisted in changing the number on the warrant or the changing of the number in the rec- ord book, was held to be fatally defective. — Harrington v. State, 54 Miss. 490. Payment of judgment indorsed on record, recovered against a township, as follows: "Received payment in full of the within from the clerk. A. & A., attorneys for plaintiff. Received of H. L., trus- tee, one hundred and forty dollars. N. S., clerk," indictment charging the forgery of such indorsement must show that the entry was made by the firm of attorneys and that they acted as attorneys for the plaintiff; also that N. S. was clerk of the court, and having au- thority to execute the writing ap- pearing above his name. — State v. Henning, 158 Ind. 196, 63 N. E. 207. 3 State V. Van Auken, 98 Iowa 674, 68 N. W. 454. 4 People V. Palmer, 53 Cal. 615; Harrington v. State, 54 Miss. 490. Altering public record by a per- son not having it in charge being alleged, the indictment or infor- mation need not set out a copy of the writing alleged to have been altered, under CaJ. Pen. Code § 114, and need not state the sub- stance thereof. — People t. O'Brien, 96 Cal. 171, 31 Pac. 45. 6 People v. O'Brien, 96 Cal. 171, 31 Pac 45. 6 Cancellation of bond redeemed charged to have been falsely made in that accused entered in the reg- istry book cancellation of bond formerly redeemed and canceled, charging accused sold the bond that he should have marked can- celed. Is sufficient without alleg- ing that the writing was one which, if genuine, might injure another. — State v. Zimmerman, 79 S. C. 289, 60 S. E. 680. § 672 FORGERY. 915 niary obligation was affected thereby/ Eemoval or de- struction of public documents by an officer having the cus- tody thereof being charged, the indictment or information need not set out the circumstances under which they were destroyed, or negative the existence of circum- stances under which it would be lawful for the officer in charge to destroy the same, because the first is matter of evidence, and the second is matter of defense.^ A charge of having forged an acceptance of service and waiver of cita- tion by accused on a petition for divorce, the indictment or information need not allege that the instrument upon which the acceptance of service and waiver of citation was forged was a petition, where the tenor of the instru- ment is set out, and the name of the accused appears therein, this sufficiently showing the instrument to be a petition filed in court.* § 672. Unnecessary averments — In general. An in- strument, to be the subject of forgery, must be one within the statute, and which, if genuine, would have some legal effect,^ but it is not necessary that it should be shown to 7 state V. Starling, 90 Miss. 252, being void without acknowledg- 42 So. 203. ment under the laws of the state 8 People V. Peck, 67 Hun (N. Y.) where executed, held not to charge 560, 10 N. Y. Cr. Rep. 363; an offense because the instrument affirmed, 138 N. Y. 386, 20 L. R. A. was void on its face. — Roods v. 381, 10 N. Y. Cr. Rep. 410, 34 N. E. State, 5 Neb. 174, 25 Am. Rep. 475. 347. "The false making of an instru- 9 State V. Stringfellow, 126 La. ment merely frivolous, or one 720, 52 So. 1002. which upon its face is clearly void, 1 Instrument a nullity on its is not forgery, because from its face set out in the indictment or character it could not have op- information. It will be insufficient crated to defraud, or been in- without an added comment that tended for that purpose; but if it can be made to act injuriously the instrument is one made with or fraudulently by reason of mat- intent to defraud, although before ter aliunde. — People v. Tomlinson, it can have that effect other steps 35 Cal. 503; Com. v. Hinds, 101 must be taken, or other proceed- Mass. 211. ings had upon the basis of it, then . An indictment charging the forg- the false making is forgery, not- ing of a married woman's deed, it withstanding such steps may 916 CRIMINAL PROCEDUEE. § 672 be a perfect instrument,^ and it is unnecessary for the indictment or information to allege how the instrument would create, increase, diminish, or defeat a pecuniary obligation, or how it would transfer or affect the title to property.^ Thus, a receipted bill for goods charged to have been forged, being set out, and purporting on its face to be an instrument which may be forged under the statute, the indictment or information need not contain further allegations to show that it was such an instru- ment, or to show how it could be used as an instrument of fraud, or that it was so used, in fact.* It is not neces- sary to allege the existence of the debt, the discharge of which the instrument alleged to be forged was intended to represent, except under unusual circumstances;^ or that accused was indebted to the person intended to be defrauded by such receipt;* or that accused sought to obtain money upon the alleged forged instrument,^ or that he did obtain anything of value;* or that the person or company, whose name was forged to an order for goods, never be taken or proceedings N. W. 594. MISS. — Cox v. State, had." — Com. v. Costello, 120 Mass. 66 Miss. 20, 5 So. 618. MO.— State 267. V. Pisher, 65 Mo. 437. N. J.— West 2 IND.— Reed v. State, 28 Ind. v. State, 22 N. J. L. (2 Zab.) 212. 396; Garmire v. State, 104 Ind. VT.— State v. Sheters, 51 Vt. 102, 444, 5 Am. Or. Rep. 238, 4 N. B. 54. 31 Am. Rep. 679. W. VA.— State v. MO.— State v. Fenly, 18 Mo. 445. Henderson, 29 W. Va. 132, 1 S. E. N. Y.— Holmes V. People, 15 Abb. 225. Pr. 154; People v. Rynders, 12 4 Com. v. White, 145 Mass. 392, Wend. 425. TEX.— Horton v. State, 7 Am. Or. Rep. 192, 14 N. B. 611. 33 Tex. 79; Labbaite v. State, 6 see Com. v. Ladd, 15 Mass. 526; Tex. App. 261; Morris v. State, Com. v. Talbot, 84 Mass. (2 Allen) 17 Tex. App. 666. WYO.— Santolini lei; Com. v. Costello, 120 Mass. V. State, 6 Wyo. 110, 71 Am. St. 358. Rep. 906, 42 Pac. 746. ^ ^ox y. State, 66 Miss. 20, 5 So. 3 FLA.— Hawkins v. State, 28 gj^g Fla. 363, 9 So. 652. LA.— State V. Fritz. 27 La. Ann. 360. MASS.- " ^^^^^ l' Henderson, 29 W. Va. Com. V. White, 145 Mass. 392, ^^^' ^ ^- ^- ^^^■' 7 Am. Or. Rep. 192, 14 N. B. 611. '^ State v. Stephen, 45 La. Ann. MICH.— People v. Van Alstine, 57 '^02, 12 So. 883. Mich. 69, 6 Am. Or. Rep. 272, 23 s State v. Phillips, 78 Mo. 49. § 672 FORGEEY. 917 had any goods at the designated place.^ Deed alleged to have been forged, the indictment or information need not set out in what the forgery consisted/" or that, if genuine, the deed would have conveyed the title to the land,^^ and need not set out the title^^ or interest^^ of the person intended to be defrauded, or state how or in what manner it did, or could have defrauded the true owner." Forgery by alteration of instrument being charged, the indictment or information need not allege that an order for the payment of money was presented to the payee,^^ or that a draft was presented to or accepted by the drawee, or that the payee received payment.^® Eeceipt charged to have been forged or altered, it is un- necessary to allege dealings between the parties, or that the original receipt was delivered to the accused as an acquittance or discharge pro tanto.^''^ Tax-receipt alleged to have been forged, the indictment or information need not allege that the taxes had been regularly assessed, or that they were due and properly payable.^* Marginal cuts, figures and devices need not be set out, even when the instrument is pleaded in hsec verba.^® 9 state V. Fritz, 27 La. Ann. 360. 14 Mere evidence which all the 10 People V. Van Alstine, 57 authorities hold need not be set Mich. 69, 6 Am. Cr. Rep. 272, 23 °^^- See People v. Van Alstine, N. W. 594. See People v. Marion, 57 Mich. 69, 6 Am. Cr. Rep. 272, 28 Mich 255. 23 N. W. 594; West v. State, 22 N. J. L. (2 Zab.) 212; R. v. Powell, 2 Wm. Bl. 787; Taylor's Case, 1 Leach 215; R. v. Goate, 1 Ld. Raym. 737, 91 Eng. Repr. 1392. 11 State V. Fisher, 65 Mo. 437. ^^ Hankins v. State. 28 Fla. 363, 12 People V. Van Alstine, 57 9 go. 652. Mich. 69, 6 Am. Cr. Rep. 272, 23 le id. N. W. 594. 17 state v. Shelters, 51 Vt. 102, Compare: People v. Wright, 9 3I Am. Rep. 679. Wend. (N. Y.) 193. 18 Cox v. State, 66 Miss. 20, 6 So. 13 West V. State, 22 N. J. L. 618. (2 Zab.) 212. i» See, intra, § 676. Where set out It Is done ex mera gratia to the accused. — People v. Marion, 28 Mich. 255. 918 CRIMINAL PROCEDURE. § 673 § 673. Facts assumed in forged instrument. The instrument charged to have been forged, being an instru- ment within the statute and valid upon its face, the in- dictment or information need not expressly aver the existence of all the facts assumed by the forged instru- ment.^ Thus, the forging of an order in the name of the trustees of a school district, upon the county superin- tendent of schools, for a requisition upon the county aud- itor for a warrant against the county school-fund, being charged, the indictment or information need not aver the existence of the school district, or the fact that the trustees whose names were alleged to be signed to the order were the trustees of the district.^ It need not be averred that the alleged false instrument was genuine,* or that the person whose name was signed to an order for goods had the disposing power over them.* An ac- quittance alleged to have been forged, it need not be averred to have been delivered to, or presented to, any one as a true and genuine acquittance or discharge." Bank-check charged to have been forged, indictment or information need not aver that the proper revenue stamps had been affixed thereto,^ or give the name of the 1 ARK.— Ball V. State, 48 Ark. Wend. (N. Y.) 193, holding that 94, 2 S. W. 462. CAL. — Ex parte where a mortgage Is charged to Pinley, 66 Cal. 262, 5 Pac. 222; have been forged in the name of People V. Todd, 77 Cal. 464, 19 A, an indictment which fails to Pac. 883 ; People v. Bibby, 91 Cal. aver that there was any such land 470, 27 Pac. 781. IOWA— State v. as the mortgage described, or that Price, 8 Iowa 235. ME. — State v. A had any title thereto, is insufl- Flye, 26 Me. 317. MASS.— Com. cient. V. Ladd, 15 Mass. 527. MO.— State 2 Ball v. State, 48 Ark. 94, 2 V. Yerger, 86 Mo. 33; State v. g_ w. 462; People v. Bibby, 91 Vincent, 91 Mo. 662, 4 S. W. 430. Cal. 470, 27 Pac. 781; Thomas v. N. C— State v. Ballard, 6 N. C. state, 18 Tex. App. 214. (2 Murph.) 186. TEX.-Thomas 3 State v. Price, 8 Iowa 235. V. State, 18 Tex. App. 214. WYO.— Santolini v. State, 6 Wyo. 110, 4 State V. Flye, 26 Me. 317. 71 Am. St. Rep. 906, 42 Pac. 746. " Com. v. Ladd, 15 Mass. 527. ENG.— R. V. Baker, 1 Moo. C. C. 8 Cross v. People, 47 111. 152, 231. 95 Am. Dec. 474; State v. Haynes, Compare: People v. Wright, 9 46 Tex. (6 Coldw.) 552. § 673 FOEGEBT. 919 bank upon wliicli drawn, or set out the indorsements thereon.'' Bills and acceptances purporting to have been issued by the officers of a corporation, or by the agents of a natural person, being charged to have been forged, the indictment or information need not aver that such officers or agents had authority to issue such bills or ac- ceptances;® and where a bond is charged to have been forged, it need not be alleged that it was attested by a certain witness.® Certificate of divorce, with court seal attached, alleged to have been forged, the indictment or information need not aver that the parties to the divorce proceedings were ever married.^** Deed alleged to have been forged, the indictment or information need not aver that the deed was executed or acknowledged, as the word "deed" itself imports a completed instrument ;^^ or set out what interest the alleged grantor, whose name was forged, had in the property described.^^ Judge's certifi- cate to fee-bill, charged to have been forged, indictment or information need not aver that the person whose name purported to be signed was a judge of that court.^* Name alleged to have been forged, need not be expressly 7 Santolinl v. State, 6 Wyo. 110, 9 State v. Ballard, 6 N. C. (2 71 Am. St. Rep. 906, 42 Pac. 746. Murph.) 186. Check to order charged to have lo Ex parte Finley, 66 Cal. 262, been forged and in possession of 5 pac. 222. accused with intent to pass It, it j^ g^^^^ ^ p-^^^j.^ gg ^^ ^^^ need not be alleged that he in- , „ ., . dorsed it. -State v. Vincent. 91 !'J^^^l J' ^^^ j"^*'"^! H Mo. 662. 4 S. W. 430. ^^f It a ' T' ''' I'J! ^ . . J . N. W. 594. See, also, supra, § 672, Indorsement of forged paper is .„ „ . , . ,, i ,i v,„ footnotes 12 and 13. never required to be set out, be- cause it forms no part of the in- Compare: People v. Wright, 9 strument. See Com. v. Ward, 2 ^end. (N. Y.) 193. Mass. 397; Com. v. Adams, 48 is State v. Maupin, 57 Mo. 205. Mass. (7 Mete.) 50; Smith v. County or circuit in which the State, 20 Neb. 284, 57 Am. Rep. cause was tried and the fee-bill 832, 29 N. W. 923; Santollni v. issued must be set out, or the State, 6 Wyo. 110, 71 Am. St. Rep. indictment or information will be 906, 42 Pac. 746. fatally defective. — State v. Mau- K State V. Morton, 27 Vt. 316. pin, 57 Mo. 205. 920 CRIMINAL PROCEDUEB. § 674 averred in those cases where the instrument is set forth according to its tenor in the indictment or information, showing the name.^^ Paper purporting to have been made by an agent in the name of his principal, alleged to have been forged, the indictment or information need not aver the agent had authority to execute such paper.^^ Pension- papers to be used in support of a claim for bounty-land, under act of congress, alleged to have been forged, the indictment need not aver that the forged papers stated all the facts requisite to entitle the accused to the bounty- land, where it is shown that he transmitted them to the pension office for the purpose of securing an allowance of his claim to the land applied for.^* Whether a rail- road company is a corporation or an association of indi- viduals, need not be averred in an indictment charging the forgery of an officer's report of stock killed by such railroad.^'^ Will charged to have been forged, indictment or information need not show that the person whose name was forged was, of full age and competent to make a will,** or that the supposed testator had property that might have been affected thereby.*^ Writings to facilitate entering goods at custom-house, charged to have been forged, indictment need not allege the existence of the goods named in the writings.^" § 674. Value need not usually be aveeeed. The value of the instrument, or of the property sought to be obtained, not being an element of the offense under the particular statute, an indictment or information need not contain an allegation as to value.* Thus, an indict- 14 state V. Yerger, 86 Mo. 33. 19 People v. Todd, 77 Cal. 464, 15 Cross V. People, 47 HI. 152, 19 Pac. 883. 95 Am. Dec. 474. 20 United States v. Lawrence, 16 United States v. Wilcox, 4 13 Blatchf. 211, Fed. Cas. No. BlatcM. 385, Fed. Cas. No. 16691. 15572. 17 Jackson v. Com., 17 Ky. L. i Stewart v. State, 113 Ind. 505, Rep. 1197, 34 S. W. 14. 16 N. E. 186; State v. Maas, 37 isCorbett v. State, 5 Ohio Clr. La. Ann. 292; State v. Clement, Ct. Rep. 155. 42 La. Ann. 583, 7 So. 685; State § 675 roEQEET, 921 ment or information under such a statute, charging the forgery by accused of a bill of exchange, without alleging the amount thereof, is sufficient;^ or of forging or alter- ing a chattel mortgage without averring the value of the property.* But where the statute denounces the making of designated instruments in writing "or writing of value," the indictment or information must aver that the writing in question was a " writing of value. ' ' Thus under such a statute, an indictment or information charging the forgery of an application for an insurance policy must allege that the insurance policy was a thing of value ;* and where the statute prohibits the selling of a forged instru- ment "for any consideration," an indictment or infor- mation which omits to charge that the instrument was sold, passed or uttered "for a consideration," will be in- sufficient.® § 675. Name of person to whom forged instru- ment UTTERED OR PASSED. There is a conflict of decision as to whether the name of the person, firm, corporation, or company to, or upon whom, an alleged forged instru- ment was uttered or passed, should be set out in the in- dictment or information.^ This conflict of decision is due largely, if not entirely, to the difference in the wording and provisions of the statutes in the various states.^ The weight of decision seems to be to the effect that the name of the person, firm, corporation, or company to whom the forged instrument was uttered or upon whom passed V. Adamson, 43 Minn. 196, 45 N. W. s State v. Hesseltine, 130 Mo. 152; State v. Horan, 64 N. H. 548, 468, 32 S. W. 983. 15 Atl. 20. Uttering for a consideration As to value, see, also, supra, need not be averred In the ab- § 663. sence of a statute so requiring. — 2 State V. Clement, 42 La. Ann. See, supra, § 657, footnote 19. 583, 7 So. 685. i See, supra, § 657, footnotes 3 State V. Adamson, 43 Minn. 24-26. 196, 45 N. W. 152. 2 Person intended to be de- 4 State V. Horan, 64 N. H. 548, frauded is required to be set out 15 Atl. 20. in some jurisdictions (see, supra, 922 CEIMINAL PEOCEDUEB. §676 need not be set out, in the absence of a statutory provi- sion requiring it to be done.* § 676. Description op htsteument — In general. An indictment or information charging forgery in any of its branches should allege the false making of a written in- strument,^ and should describe the instrument alleged § 668), while in other jurisdictions it is not required to be set out. See, supra, § 669. 3 See, among many other cases : ALA. — Bostick v. State, 34 Ala. 267. IOWA— State v. Maxwell, 47 Iowa 454; State v. Stuart, 61 Iowa 203, 16 N. W. 91; State v. Hart, 67 Iowa 145, 25 N. W. 99; State v. Beasley, 84 Iowa 83, 51 N. W. 750; State V. Waterbury, 133 Iowa 135, 110 N. W. 328; State v. Weaver, 149 Iowa 408, Ann. Cas. 1912C, 1137, 31 L. R. A. (N. S.) 1051, 128 N. W. 559. KAN. — State v. Foster, 30 Kan. 365, 2 Pac. 628. LA.— State V. Adams, 39 La. Ann. 238, 1 So. 455; State v. Gaubert, 49 La. Ann. 1692, 22 So. 930. MASS.— Com. V. Butterick, 100 Mass. 12. NEB. — Owen v. State, 34 Neb. 392, 51 N. W. 971. N. J.— State v. Jones, 9 N. J. L. (4 Halst.) 357, 17 Am. Dec. 483. N. Y.— People v. Donlan, 186 N. Y. 4, 116 Am. St. Rep. 521, 9 Ann. Cas. 453, 19 Ann. Cas. 136, 20 N. Y. Cr. Rep. 378, 78 N. E. 569. N. C— State v. Stanton, 23 N. C. (1 Ired. L.) 791. PA. — Com. V. Searle, 2 Binn. 332, 4 Am. Dec 446. W. VA.— State v. Tingler, 32 W. Va. 546, 25 Am. St. Rep. 830, 9 S. B. 935. ENG.— R. v. Holden, R. & R. G. C. 154. 1 The crime of forgery consists In the making or alteration of a written instrument to the preju- dice of the rights of another. See, among other cases, Rembert v. State, 53 Ala. 467, 25 Am. Rep. 639; State v. Thompson, 19 Iowa 299. See Com. v. Chandler, Thach. Cr. Cas. 187; Com. v. Bargar, 2 L. T., N. S. (Pa.) 161. Charging forgery by alteration of an order, which is substantially described in the indictment or In- formation, and the names of the parties set out, with an allegation that the order was for the pay- ment of four dollars and twenty cents, one-half payable in money and one-half in trade, and alleging the four dollars and twenty cents written in figures, "to-wit, 4.22," charging the alteration of the fig- ures, and then alleging that the order "is in the following words and figures," setting out a copy of the altered order, sufiiciently shows that the order was a writ- ten instrument. — Hawkins v. State, 28 Fla. 363, 9 So. 362. False entry in an account relat- ing to the business of a municipal corporation is shown by an indict- ment or information alleging that accused, with intent to defraud a city, entered on a writing used by it to record the loads of snow removed for its account, that one A had removed a certain number of loads, for which a certain amount was due him, which en- tries were knowingly false. — Peo- ple V. Herzog, 47 Misc. (N. Y.) 50, §676 FORGERY. 923 to have been forged sufficiently to enable the court to know its character.^ To accomplish this purpose a rea- sonable degree of certainty is required,* and the descrip- tion will be sufficient where it meets all the requirements in an indictment charging larceny of the instrument, if it were a subject of larceny.* The description of the instrument should be of the instrument as it was at the time of the making or altering,® and need not usually set out either the amount or value,* or any other matter not necessary to the validity of the instrument, such as the indorsements thereon, marginal words, figures, devices, and so forth.'' But where the charge is of forging the in- dorsement itself, the alleged false indorsement must be set out,^ and the indictment or information must affirma- 19 N. Y. Cr. Rep. 371, 93 N. Y. Supp. 357. Receipt charged to have been forged, the word "receipt" imports a written instrument. — State v. Bibb, 62 Mo. 286. 2 State V. Stephen, 45 La. Ann. 702, 12 So. 883; People v. Steams, 21 Wend. (N. Y.) 409; affirmed, 23 Wend. 634; People v. Dewey, 35 Hun (N. Y.) 308; United States V. Lawrence, 13 Blatchf. 211, Fed. Cas. No. 15572. 3 McDonnell v. State, 58 Ark. 242, 24 S. W. 105; State v. Stephen, 45 La. Ann. 702, 12 So. 883; State V. Jones, 1 McM. L. (S. C.) 236, 36 Am. Dec. 257; PoweU v. Com., 52 Va. (11 Gratt) 822. "An instrument in writing pur- porting to be an order drawn by Sister Adeline on George Battiste, for nine dollars," held to be a sufficient description of the alleged forged Instrument. — McGuire v. State, 37 Ala. 161. Destroyed or withlield instru- ment misdescribed, immaterial. See People v. Herzog, 47 Misc. (N. Y.) 50, 19 N. Y. Cr. Rep. 371, 93 N. Y. Supp. 357. 4 Cocke V. Com., 54 Va. (13 Gratt.) 750; Coleman v. Com., 66 Va. (25 Gratt.) 865, 18 Am. Rep. 711; State v. Duffield, 49 W. Va. 274, 38 S. B. 577; R. T. Sharpe, 8 Car. & P. 436, 34 Bng. C. L. 823; R. V. Collins, 2 Moo. & R. 461. 5 Sampson v. People, 188 111. 592, 59 N. E. 427. indorsement thereafter will not prevent the instrument being in- troduced in evidence. — Sampson v. People, 188 111. 592, 50 N. B. 427. 6 state V. Clement, 42 La. Ann. 683, 7 So. 685. 7 As to indorsements, see. Infra, §686. 8 Crossland v. State, 77 Ark. 537, 92 S. W. 776; Com. v. Spilman, 124 Mass. 327, 26 Am. Rep. 268. Uttering forged checl< in which (accused is the payee, his indorse- ment being necessary to the of- fense must be set out. — HaSlip v. State, 10 Neb. 590, 7 N. W. 331. 924 CRIMINAL PEOCEDUEB. §676 tively show that the indorsement set out bore such a relation to the instrument upon which it was indorsed as to be the subject of forgery.* Capacity of working legal injury is essential,'" and the indictment or information must show that the instru- 9 Com. V. Spilman, 124 Mass. 327, 26 Am. Rep. 268. 10 Instruments capable of work- ing legal Injury. — An Instrument in the following form: "La Grange, June 19, 1881. Mr. Allen: Please let A. Garmlre have team to go to Mongo, and charge same to me. T. Hudson," held to be a writing obligatory, promising to pay money, within the meaning of the statute defining the crime of forg- ery. — Garmire v. State, 104 Ind. 444, 5 Am. Cr. Rep. 238, 4 N. E. 54. See: ALA. — Anderson v. State, 65 Ala. 553. GA. — Burke v. State, 66 Ga. 157. LA. — State v. Morgan, 35 La. Ann. 293; State v. Ferguson, 35 La. Ann. 1042. MASS.— Com. v. Fisher, 17 Mass. 46. N. Y. — People V. Shaw, 5 John. 236. N. C— State V. Keeter, 80 N. C. 472. TENN.— Peete v. State, 70 Tenn. (2 Lea) 513. FED.— United States v. Book, 2 Cr. C. C. 294, Fed. Cas. No. 14624; United States v. Brown, 3 Cr. C. C. 268, Fed. Cas. No. 14658. An instrument as follows: "Mr. J.: Please let this man have a two dollar check on 57 East Side,'' being set out in indictment which set up facts to show that the instrument was a check on a commissary store of a designated company, of which J. was the manager, and was for two dollars' worth of goods; that the man whose name was forged thereto was an employee of the company and entitled to receive such check showed that the instrument was the subject of forgery. — Glenn v. State, 116 Ala. 483, 23 So. 1. Instruments incapable of work- ing injury. — ^An instrument alleged to have been forged which di- rected the drawee to "let the bearer have one of your smallest, with load, to charge to" the drawer, was held by the court not, per se, an order for the delivery of a pistol or other goods of any kind, and consequently that an in- dictment which charged accused with the forgery of such an instru- ment, without proper innuendos to give it a character and mean- ing not apparent on its face, was not sufficient to sustain a convic- tion. — Carberry v. State, 11 Ohio St. 410. — An order for the payment of money, of the following tenor: "M. C. & Co., pay Binam $5.75, J. L. C," an indictment unaided by innuendo or the statements of extrinsic facts, was held to be insufficient, because the writing, unaided, did not import an order for the payment of money (Bynam V. State, 17 Ohio St. 142), the court saying: "No definite mean- ing can be ascribed to the letters 'M. C. & Co.' and 'J. L. C They are of themselves arbitrary. The writing of itself does not purport to be by any person, natural or artificial," the actual point in the case decided being that the in- dictment was bad because it con- §676 PORGEKT. 925 ment alleged to have been forged is one having some legal effect/^ although it is not necessary that it should be shown to be a perfect instrument ;^^ but an instrument which bears resemblance to a genuine document which it is intended to represent, and such as is calculated to deceive, may form the basis for a charge of forgery.*^ Where the instrument is set out in the indictment or in- formation, and purports on its face to be one of the things prohibited to be forged, there need be no further allegation to show that it was that thing, or how it could be used to defraud, or that it was so used.^* talned no averment to show what the letters "M. C. & Co." and "J. L. C." meant. — Bank-check charged to have been forged, the indictment or in- formation alleging that accused did "make and forge the following check for money, to-wlt: 'No. 26. Marietta, Ga., July 17th, 1894. The First National Bank: Pay to the order of Mrs. Anna Lyons, twenty- five dollars 00/100, $25 00/100, E. C. Henderson,' — meaning C. E. Henderson of the firm of Hender- son and Austin," was held to be insufficient. — Hickin v. State, 96 Ga. 759, 22 S. E. 297. — Bond charged forged, indict- ment or Information failing to show that there was both an obligee and an obligor, is insufll- cient. — State v. Briggs, 34 Vt. 501. — Pension check drawn by an authorized officer on an assistant treasurer of the United States, di- recting the payment of money, charged to have been altered and forged by falsely and fraudulently placing the name of the payee thereon as his indorsement, held not to sufficiently describe any falsely made or altered writing for the purpose of securing money upon the United States, within the meaning of Rev. Stats., § 5421 (2 Fed. Stats. Ann., 1st ed., p. 303), or of defrauding the United States within the meaning of Rev. Stats., § 5418 (2 Fed. Stats. Ann., 1st ed., p. 300).— United States v. Albert, 45 Fed. 552. 11 Garmire v. State, 104 Ind. 444, 5 Am. Cr. Rep. 238, 4 N. E. 54. 12 Id. 13 Id. 14 GAL. — People v. Di Ryana, 8 Cal. App. 333, 96 Pac. 919. ILL.— People V. Wilmot, 254 111. 554, 98 N. B. 973. KAN.— State v. Stick- ler, 90 Kan. 783, 136 Pac. 329. MASS.— Com. V. White, 145 Mass. 392, 7 Am. Cr. Rep. 192. ,MISS.— State V. Chapman, 60 So. 722. MO. — State V. Jackson, 221 Mo. 478, 133 Am. St. Rep. 477, 120 S. W. 65. WASH.— State v. Smith, 77 Wash. 441, 137 Pac. 1008. If the instrument is of such a character as may prejudice an- other's rights it is sufficient, and there need be no allegation that the act was to the prejudice. — State V. Tingler, 32 W. Va. 546, 25 Am. St. Rep. 830, 9 S. B. 935. 926 CRIMINAL PEOCEDURE. § 676 Within the rules above laid down, an application for an insurance policy, being charged to have been forged, under a statute making it a crime to counterfeit any war- rant, order, or request for the payment of money, or for the delivery of any property, or of any writing of value, the indictment or information must allege, in the lan- guage of the statute, that the insurance policy was or is a "writing of value. "^^ Bank-check may be de- scribed as an order for money, or as a bill of exchange,^® but the indictment or information must set out the name of the payee thereof, or it will be insufficient.^'' Bill charged to have been forged under a fictitious name,^* subsequent indorsements need not be set out;^* and where a bill of acceptance drawn by accused is alleged to have been forged, an allegation that the acceptance was in- dorsed on the face of the instrument, is sufficient.^" Deed charged to have been forged, the indictment or informa- tion need not set out the title of the person intended to be defrauded, nor in what the forgery consisted ;^^ nor need it allege that the instrument, if genuine, would have conveyed the land, it being sutHcient to say that it pur- ported to convey the land f the execution or acknowledg- ment of the deed need not be charged,^^ or be alleged that 15 state V. Horan, 64 N. H. 548, 535, 1 Am. Cr. Rep. 227; but see 7 Am. Cr. Rep. 191, 15 Atl. 20. Dukes v. State, 94 Ga. 393, 21 16 State V. Maas, 37 La. Ann. S. E. 54. 292; State v. Morton, 27 Vt 310, is As to forgery under fictitious 65 Am. Dec. 201. name, see, supra, § 662. IT Williams v. State, 51 Ga. 535, 19 United States v. Peacock, 1 1 Am. Cr. Rep. 227; State v. Cur- Cr. C. C. 215, Fed. Cas. No. 16019. tis, 39 Minn. 357, 40 N. W. 263. As to indorsements, see, infra. Bank-check charged to have §686. been forged, described as payable 20 Com. v. Butteriok, 100 Mass. 10 the order of ■ -, held bad 12. on demurrer, a check not payable 21 People v. Van Alstlne, 57 to bearer, or to the order of a Mich. 69, 6 Am. Cr. Rep. 272, 23 named person, being so imperfect N. W. 594. that it could not defraud any 22 State v. Fisher, 65 Mo. 437. one. — Williams v. State, 51 Ga. 23 Id. § 676 FORGERY. 927 the instrument was sealed,^* because tlie word "deed," in and of itself, imports a coiApleted instrument.^* An acknowledgment to a deed charged to have been forged, an indictment or information which sets forth the cer- tificate of acknowledgment without venue, and without averring that the commissioner of deeds, whose name is alleged to have been forged, had authority to take ac- knowledgments, is fatally defective.^* Mortgage charged to have been forged, covers an instrument partly in writ- describes the instrument as "a certain instrument in writing commonly called a mortgage, for payment of money," imports the forgery of a sealed instrument.^'' An instrument alleged to have been forged, in the follow- ing terms: "Akron, May 2, 1874, Mr. Schroeder: Please let Mr. Borswick have his clothes, and I will hold his pay till next Tuesday. J. Butler," may be described as an "order for the delivery of goods and chattels," within the meaning of the statute.^'' "Paper writing" charged to have been forged, an indictment or information which ing and partly printed; the signature to the paper is what gives the character to the instrument.^^ Promissory note alleged to have been forged, it may be described by name;^" and the indictment charging the forgery of a promissory note by the accused "for the pay- ment of fifty centavos," is sufficient, it not beihg neces- sary to define the meaning of the word ' ' centavos. ' ' *^ 24 The word "deed" imports an Ohio St. 410, and Bynam v. State, Instrument under seal. — Paige v. 17 Ohio St. 142. People, 3 Abb. App. Dec. 439, 6 29 Thomas v. State, 103 Ind. Park Cr. Rep. 683. 419, 2 N. E. 808; State v. Ridge, 25 State V. Fisher, 65 Mo. 437. ^25 N. C. 655, 34 S. E. 439; State V. Jones, 1 McM. (S. C.) 236, 26 Vincent v. People, 15 Abb. Pr. 36 Am. Dec. 257. (N. Y.) 234, 5 Park. Cr. Rep. 88. 3^ ^^ ,„ describing Instrument, 27 People V. Dewey, 35 Hun alleged to have been forged, by (N. Y.) 308. name, see, infra, § 683. 28 Chidester v. State, 25 Ohio 31 People v. D'Argenoour, 95 St. 433, 2 Am. Cr. Rep. 153, dls- N. Y. 624, 2 N. Y. Cr. Rep. 267, tinguishing Carberry v. State, 11 4 Am. Cr. Rep. 240. 928 CRIMINAL PEOCEDUEE. §677 §677. Copy, tenor ob facsimile of instettment. The common-law rule, which prevails in the absence of abrogation by statute, requires that the indictment or in- formation shall set out the instrument alleged to have been forged or altered in hsec vferba, that is, according to its tenor, and allege to do so,^ or the failure to do so be 1 ALA. — Thompson v. State, 30 Ala. 28. ARK. — Mi;Donnell v. State, 58 Ark. 242, 24 S. W. 105; Crossland v. State, 77 Ark. 537, 92 S. W. 776 FLA.,— Smith v. State, 29 Fla. 408, 10 So. 894; West v. State, 45 Fla. 118, 33 So. 854. ILL.— Cross V. People, 47 111. 152, 95 Am. Dec. 474; People v. Tilden, 242 111. 536, 134 Am. St. Rep. 341, 17 Ann. Cas. 496, 90 N. E. 218. IND.— Rooker v. State, 65 Ind. 86; Munson v. State, 79 Ind. 541. IOWA — State V, Johnson, 26 Iowa 407, 96 Am. Dec. 158. KAN.— State V. McNaspy, 58 Kan. 691, 38 L. R. A. 756, 50 Pac. 895. KY.— HUl V. Com., 17 Ky. L. Rep. 1135, 33 S. W. 823. LA. — State v. Shel- don, 8 Rob. 540. ME.— State v. Bonney, 34 Me. 383; State T. Wltham, 47 Me. 165. MASS.— Com. V. Houghton, 8 Mass. 107; Com v. Adams, 48 Mass. (7 Mete.) 50. NEB. — Haslip v. State, 10 Neb. 590, 7 N. W. 331; Davis v. State, 58 Neb. 465, 11 Am. Cr. Rep. 435, 78 N. W. 390. N. H.— State v. Bry- ant, 17 N. H. 323. N. J.— State v. Gustin, 5 N. J. L. (2 South.) 744; State V. Potts, 9 N. J. L. (4 Halst.) 26, 17 Am. Dec. 449. N. Y. — People V. Kingsley, 2 Cow. 522, 14 Am. Dec. 520. N. C— State v. Street, 1 N. C, pt. II, (1 Tayl.) 158, 1 Am. Dec. 589; State v. Twltty, 9 N. C. (2 Hawks) 248; State v. Bourdon, 13 N. C. 443; State v. Lytle, 64 N. C. 255. OPIIO — McMlllen v. State, 5 Ohio St. 269; Griffin v. State, 14 Ohio St. 55. S. C— State V. Jones, 1 McMuU. L. 236, 36 Am. Dec. 257. TENN.— Hooper v. States 27 Tenn. (8 Humph.) 93; Coxdale V. State, 38 Tenn. (1 Head) 139; Luttrell V. State, 85 Tenn. 232, 4 Am. St. Rep. 760, 1 S. W. 886. TEX. — Smith v. State, 18 Tex. App. 399; Thomas v. State, 18 Tex. App. 213; Miller v. State, 34 S. W. 267; Edgerton v. State. 70 S. W. 90. VT. — State v. Parker, 1 D. Chip. 298, 6 Am. Dec. 201; State v. Morton, 27 Vt. 310, 65 Am. Dec. 201; State v. Briggs, 34 Vt. 501. FED.— United States V. Smith, 2 Cr. C. C. Ill, Fed. Cas. No. 16326; United States v. Brit- ton, 2 Mas. 464, Fed. Cas. No. 14650; United States v. Went- worth, 11 Fed. 52. Alteration charged, indictment or information must recite instru- ment in its altered state. — State v. Bryant, 17 N. H. 323. Omission of figure in face of in- strument in description thereof, is fatal. — State v. Street, 1 N. C, pt. II, (1 Tayl.) 158, 1 Am. Dec 589. Words and figures must be set out where the forgery consists In the alteration of a genuine instru- ment. — State V. Bryant, 17 N. H. 323. ^ 077 FOllGEHi'. 923 excused,^ and the term "tenor" imports identity,* or an exact copy,,* and requires strict proof.^ The instrument alleged to have been forged should be set forth with literal accuracy^ as to the material parts,'' and the instru- 2IND. — Armitage v. State, 13 Ind. 441; State v. Callahan, 124 Ind. 364, 24 N. E. 732. N. J.— State V. Potts, 9 N. J. L. (4 Halst.) 26, 17 Am. Dec. 449. N. Y.— Peo- ple V. Klngsley, 2 Cow. 522, 14 Am. Dec. 520; People v. Badgley, 16 Wend. 53; People v. Dewey, 35 Huu 308. VT.— State v. Parker, 1 D. Chip. 298, 6 Am. Dec. 735. FED. — United States v. Howell, 64 Fed. 110. In hand of accused, that fact should be averred. — State v. Parker, 1 D. Chip. (Vt.) 298, 6 Am. Dec. 735. As to lost, destroyed or retained instrument, see, infra, § G85. 3 State V. Townsend, 86 N. C. 676. 4 ARK.— McDonnell v. State, 58 Ark. 242, 24 S. W. 105. IND.— State V. Atkins, 5 Blackf. 458; Thomas v. State, 103 Ind. 419, 2 N. E. 808. IOWA— State v. Callen- dine, 8 Iowa 288. ME. — State v. Bonney, 34 Me. 383. MASS.— Com. V. Stevens, 1 Mass. 203; Com. v. Wright, 55 Mass. (1 Gush.) 46. MO. — State v. Fenly, 18 Mo. 445; State V. Pullens, 81 Mo. 387; State V. Chinn, 142 Mo. 507, 44 S. W. 245. OHIO — Dana v. State, 2 Ohio St. 91. TBNN. — Fogg V. State, 17 Tenn. (9 Yerg.) 392. TEX.— Rob- erts V. State, 2 Tex. App. 4; Baker V. State, 14 Tex. App. 332; Miller V. State, 34 S. W. 267; Edgerton V. State, 15 Am. Cr. Rep. 271, 70 S. W. 90. I. Crlm. Proc. — 59 "Tenor" binds pleader to strict recital. — Com. v. Stevens, 1 Mass. 203. s Roberts v. State, 2 Tex. App. 4; Baker v. State, 14 Tex. App. 332; Edgerton v. State, (Tex.) 15 Am. Cr. Rep. 271, 70 S. W. 90. 6 Com. V. Stow, 1 Mass. 54 ; Com. V. Bailey, 1 Mass. 62, 2 Am. Dec. 3; Luttrell v. State, 85 Tenn. 232, 4 Am. St. Rep. 760, 1 S. W. 886. Technical words not necessary to a sufficient description, if other- wise good. "Tenor," etc., need not be used to express the fact that the instrument is set forth with lit- eral accuracy; "of the purport and effect following," said to be suffi- cient, at least where followed by a correct copy of the instrument. — State V. Johnson, 26 Iowa 407, 96 Am. Dec. 158; State v. Duffield, 49 W. Va. 274, 39 S. E. 577. Compare: Davis v. State, 2 Ohio St. 91. 7 Material parts only of instru- ment alleged to have been forged need be set out. — Haupt v. State, 108 Ga. 53, 75 Am. St. Rep. 19, 34 S. E. 313. Draft subject of forgery, it is not necessary to set out figures cut therein. See, infra, § 687. Indorsements subsequently made need not be set out. See, infra, §686. Marginal devices, figures, etc., need not be set out. See, infra, §687. Revenue stamp on check need not be set out. See, infra, § 687. 930 CRIMINAL PEOCEDUEB. § 678 ment thus set forth must be shown in the proof with the same accuracy;® hence, an indictment or information charging forgery of an instrument which "is in the tenor substantially as follows," is insufficient, because the terms are contradictory.* Affidavit required by statute to accompany the instru- ment charged to have been forged in order to validate it, the indictment or information must set out the affidavit and allege that it accompanied the instrument.^" Facsimile of the instrument alleged to have been forged may be substituted for a copy thereof in those cases where there is doubt or difficulty as to particular words.^^ Under statutori/ provisions in some jurisdictions, the purport of the instrument may be set out without set- ting out the tenor thereof ;^^ while in other jurisdictions it is provided by statute that the indictment need contain only a statement of the offense in ordinary and concise language, with such a description of the forged instru- ment as is necessary to enable the accused to understand what is intended, and to know what may be proved against him;^^ while in still other jurisdictions the stat- utes provide that the instrument may be described either by its purport or by the name under which it is generally known.^* §678. Purport of instrument. "Purport" is contradistinguished from "tenor," which we have al- ready seen means identity, or a literal or exact copy.^ It sLuttrell v. State, 185 Tenn. 40 N. W. 263; State v. Wright. 9 232,, 4 Am. St. Rep. 760, 1 S. W. Wash. 96, 37 Pac. 313; R. v. Ead, S8G. 43 Nova Scotia 53. a Edgerton v. State, (Tex.) 15 14 State v. Tisdale, 39 La. Ann. Am. Cr. Rep. 271, 70 S. W. 90. 476, 2 So. 406; State v. Clement, 10 Caffey v State, 36 Tex. Cr. 42 La. Ann. 583, 7 So. 685; State Rep. 198, 61 Am. St. Rep. 841, 36 v. Gauhert, 49 La. Ann. 1692, 22 S. W. 82. So. 930; State v. Leo, 108 La. 496, 11 State V. Shelden, 8 Rob. (La.) 15 Am. Cr. Rep. 272, 32 So. 447; 540. Com. V. Beamish, 81 Pa. St. 389. 12 See, infra, § 678. i See, supra, § 677, footnotes 3 13 State V. Curtis, 39 Minn. 357, and 4. §678 FORGERY. 931 is not necessary that an indictment or information charg- ing forgery shall contain a purport clause,^ it being suf- ficient to set out the instrument according to its tenor.' In fact, an indictment or information should never set out the instrument both according to "purport" and "tenor,"* because where the instrument is set out the purport thereof necessarily appears f and where the in- strument is described both by its purport and its tenor, shou.ld there be any repugnancy between the two descrip- tions, it will be fatal." "Purport" of an instrument means the substance thereof as it appears on the face of the instrument to one who reads iV Setting forth by "purport and effect" does not mean an exact copy,* but the substance of the instrument only,® and in this respect differs from 2Duffin V. People, 107 111. 113; State V. McGardlner, 23 N. C. (1 Ired. L.) 27; Howard v. State, 37 Tex. Cr. 494, 66 Am. St. Rep. 812, 36 S. W. 475; Whltaker v. State, (Tex.) 147 S. W. 599. 3 Rhudy V. State, 42 Tex. Cr. 225, 58 S. W. 1007; Whltaker v. State, (Tex.) 147 S. W. 599. 4 State V. PuUens, 81 Mo. 387; Fogg V. State, 17 Tenn. (9 Yerg.) 392; Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248. 5 State V. Pullens, 81 Mo. 387; Fogg V. State, 17 Tenn. (9 Yerg.) 392; Roberts v. State, 2 Tex. App. 4; Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248; English v. State, 30 Tex. App. 470, 18 S. W. 94. Repugnant purport clause may lie disregarded. — Myers v. State, 101 Ind. 379; State v. Yerger, 86 Mo. 33. c See, infra, § 680. 7 ARK. — Van Home v. State, 5 Ark. 349; McClellan v. State, 32 Ark. 609. IND.— Thomas v. State, 103 Ind. 419, 2 N. B. 808. IOWA— State V. Callendlne, 8 Iowa 288. MASS.— Com. V. Wright, 55 Mass. (1 Cush.) 46. MISS.— Roberts v. State, 72 Miss. 110, 16 So. 233. MO.— State v. Fenly, 18 Mo. 445; State V. Pullens, 81 Mo. 387; State V. Chlnn, 142 Mo. 507, 44 S. W. 245. N. ■ C— State v. Harris, 27 N. C. (5 Ired. L.) 287. OHIO— Dana v. State, 2 Ohio St. 91. TENN.— Fogg V. State, 17 Tenn. (9 Yerg.) 392. 8 Com. V. Wright, 55 Mass. (1 Cush.) 46; State v. Bonney, 34 Me. 383. "Of the purport and effect fol- lowing" is an insufficient allega- tion that the instrument set out is an exact copy. — Dana v. State, 2 Ohio St. 91. But see: State v. Johnson, 26 Iowa 407, 96 Am. Dec. 158. 9 IND. — State t. Atkins, 5 Blackf. 458. ME. — State v. Bonney, 34 Me. 383. MASS. — Com. v. 932 CRIMINAL PEOCEDUEB. §678 " tenor. "^^ By statutory provisions in many of tlie states an indictment or information charging the making or altering of an instrmnent, is not required to set out the instrument or the alterations by tenor, but will be suffi- cient where it sets out the forged instrument ' or altera- tion according to purport.^^ Where the uttering of a forged written or printed instrument is charged, the in- dictment or information should set forth the purport of each material portion of such instrument ;^^ but describ- ing the instrument by stating what was the "purport and effect" thereof, in apparently the words of the instru- ment itself, is sufficient.^* Describing instrument alleged to have been forged as a "written order to A by B to pay C two dollars in goods," held to be sufficient.** Set- Wright, 55 Mass. (1 Cush.) 46. MO.— State v. Fenly, 18 Mo. 445; State V. Pullens, 81 Mo. 387; State V. CWnn, 142 Mo. 507, 44 S. W. 245. TENN.— Fogg V. State, 17 Teun. (9 Yerg.) 392. TEX. — Miller v. State, 34 S. W. 267. 10 State V. Atkins, 5 Blackf. (Ind.) 458; State v. Callendlne, 8 Iowa 288; Com. v. Wright, 55 Mass. (1 Cush.) 46. 11 ALA. — Bostickv. State, 34 Ala. 266; Jones' v. State, 50 Ala. 161. CAL.— People v. Terrill, 132 Cal. 497, 64 Pac. 894; People v. Chretien, 137 Cal. 450, 70 Pac. 305. COLO. — Cohen v. People, 7 Colo. 274, 3 Pac. 385. IOWA— State v. Johnson, 26 Iowa 407, 96 Am. Dec. 158. LA. — State v. Maas, 37 La. Ann. 292; State v. Boasso, 38 La. Ann. 202; State v. Sherwood, 41 La. Ann. 316, 6 So. 529; State v. Gaubert, 49 La. Ann. 1692, 22 So. 930. MISS.— Roberts v. State, 72 Miss. 110, 16 So. 233. MO.— State V. Fay, 65 Mo. 90; State v. Clinton, 67 Mo. 380, 29 Am. Rep. 606, 3 Am. Cr. Rep. 132; State v. Pullens, 81 Mo. 387; State v. Rowlen, 114 Mo. 628, 21 S. W. 729; State v. Im- boden, 157 Mo. 83, 57 S. W. 536. N. Y.— People v. Hertz, 35 Misc. 177, 15 N. Y. Cr. Rep. 477, 71 N. Y. Supp. 489; People v. Herzog, 47 Misc. Rep. 50, 19 N. Y. Cr. Rep. 371, 93 N. Y. Supp. 357. OHIO— Chidester v. State, 25 Ohio St. 433. ORE.— State v. Ghilders, 32 Ore. 119, 49 Pac. 801. WASH.— State v. , Wright, 9 Wash. 96, 37 Pac. 313. W. VA.— State v. Henderson, 29 W. Va. 147, 1 S. E. 225. WIS.— State V. Hill, 30 Wis. 416. WYO.— Santolini v. State, 6 Wyo. 110, 71 Am. St. Rep. 906, 42 Pac. 746. In Alabama the instrument may be described either in haec verba or according to its legal tenor and effect— Bartlett v. State, 8 Ala. App. 248, 62 So. 320. 12 Davis V. State, 58 Neb. 465, 11 Am. Cr. Rep. 435, 78 N. W. 390. 13 Dana v. State, 2 Ohio St. 91. 14 Hill V. Com., 17 Ky. L. Rep. 1135, 33 S. W. 823. § 679 FORGERY. 933 ting forth by pilrport a check alleged to have heen forged, it is not necessary to allege the name of the bank on which the instrument was drawn.^* Describing an instru- ment alleged to have been forged as "a certain instru- ment in writing commonly called a 'deed,' purporting to be the act of one A, bj'^ which the interest in certain real property purported to be transferred and conveyed by A to the said B," held to be insufficient;^* and an allegation that accused unlawfully, and feloniously made and forged a deed purporting to be the act of a fictitious person, is not sufficient; the indictment or information must allege that a fictitious name or pretended signature of a person not in existence was affixed to the instrument ;*'' "purporting to be the act of A, a fictitious person" merely charges that A is a fictitious person, not that the instrument purported to be the act of a fictitious person, and is therefore bad.^* Setting out according to purport a promissory note alleged to have been forged, it is not necessary to allege or show a revenue stamp, required by law, was affixed to it,^^ nor allege the date of making or the maturity of the note ;^*' and where an indorsement on such note is charged to have been forged, it is not necessary to state the name of the maker of the note, or where it was payable.-^ § 679. Effect of videlicet clause. An indictment or information describing by setting out an instrument alleged to have been forged, should not only set out the instrument but should profess to do so.^ This is usually accomplished by the videlicet clause, that is, by 13 Santollnl v. State, 6 Wyo. 110, 19 State v. Hill, 30 Wis. 416. See, 71 Am. St. Rep. 906, 42 Pac. 746. Infra, § 687. 10 Roberts V. State, 72 Miss. 110, ''" Com. v. Ross, 2 Mass. 373; .„ „ „„„ State V. Clinton, 67 Mo. 380, 29 ^^ ^°- ^^^- Am. Rep. 506. IT State V. Minton. 116 Mo. 605, ^i Cooke v. Com., 54 Va. (13 22 S. W. 808. Ctratt.) 750. isHocker v. State, 34 Tex. Cr. i State v. Twitty, 9 N. C. (2 Rep. 359, 30 S. W. 783. Hawks) 248. 934 CRIMINAL PROCEDURE. §680 the phrase "to-wit," or "that is to say," which serves to particularize that which is too general in what has gone before,* and has been said to import an exact copy,' although there are cases to the effect that it does not pro- fess to give an exact copy.* — Ambiguity and kbpugnancy — In general. §680. - We have already seen^ that an indictment or information charging the making of a false instrument, or the altering of a genuine instrument, must be certain both in charging as to the matter alleged and as to the person ac- cused,*" and that a failure in this respect is ground for quashing;* likewise any repugnancy in the allegations* between the purport clause and the tenor clause as to the instrument, where both clauses are used, will render the indictment or information bad,^ except in those jurisdic- 2GHligan v. Com., 99 Va. 819, 37 S. B. 962. 3 McDonnell v. State, 58 Ark. 242, 24 S. W. 105; State v. John- son, 26 Iowa 407, 96 Am. Dec. 158; Com. V. Stow, 1 Mass. 54; Miller V. State, (Tex.) 34 S. W. 267. 4 Dana v. State, 2 Ohio St. 91. 1 See, supra, § 654. 2 See, supra, § 660. 3 Lost note, alleged to have been forged, described as having been signed by one "Henry Wintrode or Henry R. Wintrode," held not to be uncertain or equivocal'. — Hess V. State, 73 Ind. 537. 4 CALi. — People v. Bppinger, 105 Cal. 36, 38 Pac. 538; People v. Ellenwood, 119 Cal. 166, 51 Pac. 553. IND.— State v. Cook, 52 Ind. 574; State v. Dutour, 63 Ind. 567; State V. Bracken, 152 Ind. 565, 53 N. B. 838. MO. — State v. Chinn, 142 Mo. 507, 44 S. W. 245; State v. Leonard, 171 Mo. 622, 71 S. B. 1017. TEX. — Munoz v. State, 40 Tex. Cr. Rep. 457, 50 S. W. 949. 5 ARK.— McClellan v. State, 32 Ark. 609. GA. — Hichen v. State, 96 Ga. 759, 22 S. B. 297. KY.— Sutton V. Com., 17 Ky. L. Rep. 175, 30 S. W. 665. MASS.— Com. v. Ray, 69 Mass. (3 Gray) 441; Com. v. Ray, 72 Mass. (6 Gray) 441. N. H.— State v. Horan, 64 N. H. 548, 7 Am. Cr. Rep. 191, 15 Atl. 20. S. C. — State V. Houseal, 2 Brev. 219. TENN.— State v. Shawley, 6 Tenn. (5 Hayw.) 256. TEX.— Rob- erts V. State, 2 Tex. App. 4; West- brook V. State, 23 Tex. App. 401, 5 S. W. 248; Becker v. State, 18 S. W. 550; Campbell v. State, 35 Tex. Cr. Rep. 182, 32 S. W. 899; Fite v. State, 36 Tex. Cr. Rep. 4, 34 S. W. 922; Stephens v. State, 36 Tex. Cr. Rep. 386, 37 S. W. 425, 38 S. W. 997; Gibbons v. State, 36 Tex. Cr. Rep. 469, 37 S. W. 861; Booth V. State, 36 Tex. Cr. Rep. 600, 38 S. W. 196; Thulemeyer v. State, 38 Tex. Cr. Rep. 349, 42 S. W. 83; Scott v. State, 40 Tex. Cr. Rep. 105, 48 S. W. 523; Craw- § 681 FORGERY. 935 tions in which it is held that in such cases the purport clause may be regarded as surplusage and the indict- ment held valid." Thus, where this doctrine prevails, an indictment setting forth an alleged forged note according to the tenor, is sufficient although the statement of the purport thereof is repugnant ;'' and an allegation that a note charged to have been forged was "executed and signed by" the purported maker thereof, is not invalid for surplusage or repugnant allegation, where there is otherwise sufficient matter alleged to indicate the crime and the person charged.^ § 681. In names of persons. The names of the parties must be accurately given, and where the pur- port clause alleges the instrument charged to have been forged was executed in the name of A, and sets out an in- strument pui-porting to have been executed by B, the re- pugnance is fatal. ^ Where the indictment or information in setting out the names of a party or parties merely uses the initials^ of the given name* or sets out the full first ford V. state, 40 Tex. Cr. Rep. out in hasc verba. — Myers v. State, 344, 11 Am. Cr. Rep. 432, 50 101 Ind. 379; State v. Yerger, 86 S. W. 378; Glenn v. State, 65 Mo. 33. S. W. 368 ; Mayers v. State, 47 t state v. Pullens, 81 Mo. 387. Tex. Cr. Rep. 624, 85 S. W. 802; 8 State v. Chamberlain, 89 Mo. Tracy v. State, 49 Tex. Cr. Rep. 37, 129, 1 S. W. 145. 90 S. W. 308; Porcy v. State, 55 i State v. Horan, 64 N. H. 548, Tex. Cr. Rep. 545, 117 S. W. 834. 7 Am. Cr. Rep. 191, 15 Atl. 20; VT.— State v. Bean, 19 Vt. 530. Overly v. State, 34 Tex. Cr. Rep. An indictment alleging "that 500, 31 S. W. 377; Campbell v. said false instrument is to the State, 35 Tex. Cr. Rep. 182, 32 tenor substantially as follows, to- S. W. 899. wit," is bad for repugnancy. — 2 See, supra, § 660, footnote 2. Edgerton v. State, (Tex.) 15 Am. 3 Shinn v. State, 57 Ind. 144; Cr. Rep. 271, 70 S. W. 90. Yount v. State, 64 Ind. 443; State 6 Myers v. State, 101 Ind. 379; v. Houseal, 2 Brev. L. (S. C.) 219; Garmire v. State, 104 Ind. 444, English v. State, 30 Tex. App. 470, 5 Am. Cr. Rep. 238, 4 N. E. 54. 18 S. W. 94. Repugnant purport clause may Purport clause "S. B. S. Keimer," be disregarded where followed by tenor clause "Solomon B. S. Kei- the alleged forged instrument set mer."— Shinn v. State, 57 Ind. 144. 936 CRIMINAL PBOCEDUEE. §681 name and the instrument uses merely the initials,* or misspells the name,^ the repugnance will be fatal, ex- cept in those cases where the rule of idem sonans ap- plies.® But the omission of the initial letter of the middle name, in the purport clause, followed by a copy of the instrument in which such initial letter appears, will not invalidate the indictment ;'' and where the purport clause alleges a firm name and the instrument set out shows a firm name, with the letter M underneath, the omission of the letter M in the purport clause is immaterial.^ Where the purport clause alleges the act complained of in the name of one person, and the tenor clause shows it to have been the act of another person,® or of more than one person,^" the repugnancy will be fatal.*^ But 4Tount V. state, 64 Ind. 443; State V. Horan, 64 N. H. 548, 7 Am. Cr. Rep. 191, 15 Atl. 20; State V. Houseal, 2 Brev. L. (S. C.) 219; State V. Jones, 1 McM. (S. C.) 236, 36 Am. Dec. 257. Compare: Yount v. State, 101 Ind. 379, where purport set out the name as "Vincent T. West," and tenor clause showed instru- ment purported to be signed "Dr. West," held purport clause would be rejected as surplusage. Purport clause "Nathaniel Dur- kie," tenor clause "N. Durkle" (State V. Houseal, supra), and pur- port clause "Tristram Tupper," tenor clause "T. Tupper." — State V. Jones, supra. State V. McCormick, 141 Ind. 685, 40 N. E. 1089. Clerical error in name purport- ing to be signed to an instrument set out will not vitiate the indict- ment or information. — State v. Morgan, 35 La. Ann. 293. Roberts v. State, 2 Tex. App. 4; State v. Bean, 19 Vt. 530. 7 People V. Ferris, 56 Cal. 442. 8 Young V. State, (Tex.) 40 S. W. 793. 9 Campbell v. State, 35 Tex. Cr. Rep. 182, 32 S. W. 899; English v. State, 35 Tex. Cr. Rep. 470, 18 S. W. 94; Fite v. State, 36 Tex. Cr. Rep. 4, 34 S. W. 922. Instrument alleged to be signed M. R. L., but instrument set out purported to be signed by R. M. L., fatal (English v. State, 35 Tex. Cr. Rep. 470, 18 S. W. 94). So, also, is allegation of "Mr. Jones" in pur- port clause, and "Mrs. Jones" in tenor clause. — Fite v. State, 36 Tex. Cr. Rep. 4, 34 S. W. 922. 10 Fogg V. State, 17 Tenn. (9 Yerg.) 392. 11 Campbell v. State, 35 Tex. Cr. Rep. 182, 32 S. W. 899; Fite v. State, 36 Tex. Cr. Rep. 4, 34 S. W. 922; Stephens v. State, 36 Tex. Cr. Rep. 386, 37 S. W. 425, 38 S. W. 997; Gibbons v. State, 36 Tex. Cr. Rep. 469, 37 S. W. 861; Crayton v. State, 45 Tex. Cr. Rep. 84, 73 S. W. 1046. Compare: Fogg v. State, 17 Tenn. (9 Yerg.) 392, where charge § 682 FORGERY. 937 an allegation in the purport clause that the act was done by the accused as an agent/^ or as a partner/^ and the copy of the instrument set out fails to designate the ca- pacity in which the act was done, the repugnancy will not be fatal. § 682. In names of corporations. The rules laid down in the preceding section relative to repug- nancy in the names of persons, applies also in the case of repugnancy in the names of corporations. Thus, it has been said that an indictment or information charging the forgery of a check, and in the purport clause naming the bank upon which the check was drawn as the "City Bank of Dallas," but in the tenor clause setting out a check on the "City Bank," was fatally defective because of repugnance.^ Where, in the purport clause, the in- dictment or information sets forth that the instrument alleged to have been forged purported to be the act of a corporation, and in the tenor clause, sets out an instru- ment purporting to be signed by the officers of the cor- poration, the repugnance is fatal.^ Likewise in an indict- ment charging the forgery of a railroad ticket, in the purport clause alleging that the forgery purported to be the act of A, as agent of a named railroad company, and in the tenor clause the instrument is set out, showing that it was signed by B, the name of A nowhere appear- ing in the instrument, the repugnance between the pur- port and the tenor clause is fatal.* But the addition of words showing that the company was an incorporated concern will not constitute repugnance. Thus, where an indictment charged accused with forging a policy of in- of forging instrument In name of 13 Davis v. State, (Tex.) 69 B and Instrument set out pur- S. W. 73. ported to be executed by B and A, i Roberts v. State, 2 Tex. App. 4. the accused, held not to constitute 2 Millsaps v. State, 38 Tex. Cr. a repugnance. Rep. 570, 43 S. W. 1015. 12 State V. Gustln, 5 N. J. L. (2 3 Overly v. State, 34 Tex. Cr. South.) 744. Rep. 500, 31 S. W. 377. 938 CRIMINAL PEOCEDUEE. § 683 surance of the "Traveler's Insurance Company of Hart- ford, Connecticut," with intent to defraud the "Trav- eler's Insurance Company of Hartford, Connecticut, which was then and there a corporation duly organized, ' ' does not constitute repugnance.* § 683. Designating instrument by name. In the absence of statutory provision it is not necessary, even if permissible, to describe the instrument alleged to have been forged by the name under which it is usually known,^ and some of the cases hold that when the name is set out in the indictment or information, this allegation must be proved as laid,^ although the weight of authority, and the better doctrine is thought to be, that a mistake of the pleader in designating the name of the instrument alleged to have been forged or altered, and which is set forth, will not vitiate an indictment or information otherwise good.* The careful pleader will charge the instrument alleged to have been forged as a certain paper writing purport- ing to be an instrument designated in the statute,* or set out the instrument in full without naming it, even in those jurisdictions in which, by statute, the instrument may be described by the name under which it is usually known, for the reason that the legal name of any particu- 4 People V. Graham, Sheld. 87 Ind. 97; Myers v. State, 101 (N. Y.) 151, 6 Park. Cr. Rep. 135. Ind. 379; Garmire v. State, 104 Ind. „, , „, . , „ „ 100 T^ 444, 5 Am. Or. Rep. 238, 4 N. E. 54. 1 State V. StrmgfeUow, 126 La. ^ . ' , , _, ^ .„ ^ LA. — State V. Clement, 42 La. Ann. 720, 52 So. 1002; Bethany v. State, (Tex.) 179 S. W. 1166. 583, 7 So. 685. MICH.— People v. Kemp, 76 Mich. 410, 43 N. W. 439. 2 Bethany v. State, (Tex.) 179 eNG.— R. v. Williams, 20 L. J. Rep. S. W. 1166. (N. s.), 14 Jur. 1052, 2 Eng. L. & 3 CAL.— People v. Way, 10 Cal. Eq. 533. 336; People v. Ah Woo, 28 Cal. 4 People v. Rynders, 12 Wend. 205. GA.— Gibson v. State, 79 Ga. (N. Y.) 425, 431; Gray v. People, 344, 5 S. E. 76. IND.— Reed v. 21 Hun (N. Y.) 140; People v. State, 28 Ind. 396; Harding v. Dewey, 35 Hun (N. Y.) 308; State State, 54 Ind. 359; Powers v. State, v. Gardiner, 23 N. C. (1 Ired. L.) 27. § 683 PORGEEY. 939 lar instrument is purely a question of law for the court.® Thus, it has been said that where an instrument as set out in the indictment or information is an evidence of debt, it does not matter whether such instrument is desig- nated as a "certificate of deposit," a "deposit slip," or as a "deposit ticket."* Under statute in many, if not in the majority of the states, it is sufficient to describe the instrument alleged to have been forged by the name under which it is usually known, without setting it out by tenor,'' because under such a statute minuteness of description is dispensed with, so long as the indictment or information meets the requirement* that it shall notify the accused of the charge against him.® However, under such a statute an indict- ment or information which sets out in full the instrument alleged to have been forged, but fails to designate it in the purport clause by the name under which it is gener- 5 See R. V. Birch, 2 Wm. Bl. 790, describing the same," an allegation 96 Eng. Repr. 464. that the accused forged "a certain 6 State V. Jackson, 221 Mo. 478, Promissory note, purporting to be 133 Am. St. Rep. 477, 120 S. W. 66. "^« \°* f """^ ^"^"^ f " ^P"'^^^''' by which a pecuniary demand and 7 State T. Boasso, 38 La. Ann. obligation for the payment of a 202; State v. Pons, 28 La. Ann. 43; sum named "by the said Robert F. State V. Nelson, 28 La. Ann. 46 ; Springer to the said Jacob Clinton State V. Woods, 112 La. 617, 36 So. purported to be created," is a sufla- 626; State v. Clinton, 67 Mo. 380, cient description, the indictment 29 Am. Rep. 506, 3 Am. Cr. Rep. alleging further, as a reason for 132; Com. v. Beamish, 81 Pa. St. "^"^ describing the note more par- 389 ; Com. v. Bargar, 2 L. T., N. S. ticularly, that it was in the pos- session of the accused. — State v. (Pa.) 161. Clinton, 67 Mo. 380, 29 Am. Rep. Thus, under a statute providing 506, 3 Am. Cr. Rep. 132. "that in any indictment for forging g g^^^ ^^^^^^ g gg^^ footnotes 8 any instrument, it shall be suffi- g^ ggq. clent to describe such instrument 9 g^^^^ ^ Clinton, 67 Mo. 380, by any name or designation by 29 Am. Rep. 506, 3 Am. Cr. Rep. which the same shall be usually 132. See State v. Smith, 31 Mo. known, without setting out a copy 120; State v. Whatson, 65 Mo. 115; or facsimile thereof, or otherwise State v. Fisher, 65 Mo. 437. 940 CRIMINAL PEOCEDUEB. §683 ally known/" or which gives to it a wrong name/^ will not be vitiated by such omission or wrong name. Illustrations under statute : Acceptance on a bank- check may be described as "indorsement."^^ "Acquit- tance and discharge for money" sufficiently describes a bill of parcels purporting to be receipted.^* Alteration of record of board of county supervisors describing the same as a "resolution," and setting out the matter alleged to have been altered, which shows the record to have been merely an allowance to a county officer, is immaterial.^* "Bank-check" sufficiently designates an instrument in that form,^^ and a bank-check is properly described as "an order for money," or as "a bill of exchange."^® Bond may be described as an "order for money. "^^ "A 10 People V. McGlade, 139 Cal. 66, 72 Pac. 600; Gray v. People, 21 Hun (N. Y.) 140; Lassiter v. State, 35 Tex. Or. Rep. 540, 34 S. W. 751; Hanks v. State, (Tex.) 54 S. W. 587. Nature of instrument alleged to be forged, need not be designated by name, where set out in full. — Gray v. People, 21 Hun (N. Y.) 140. Purport clause need not state na- ture of instrument. — Bethany v. State, (Tex.) 179 S. W. 1166. 11 CAL..— People v. All Woo, 28 Cal. 205. IND. — Harding v. State, 54 Ind. 359; Powers v. State, 87 Ind. 97; Garmire v. State, 104 Ind. 444, 5 Am. Cr. Rep. 238, 4 N. E. 54. KY. — Greenwood v. Com., 11 Ky. L. Rep. 220, 11 S. W. 811. LA.— State T. Gryder, 44 La. Ann. 962, 32 Am. St. Rep. 358, 11 So. 573. TEX.— Prazler v. State, 64 S. W. 934; Emmons v. State, 43 S. W. 518. 12 State V. Morton, 27 Vt. 310, 65 Am. Dec. 201. 13 Com. V. White, 145 Mass. 392, 14 N. E. 611. 14 State V. Van Auken, 98 Iowa 674, 68 N. W. 454. 15 People V. Rynders, 12 Wend. (N. Y.) 425. 16 State V. Crawford, 13 La. Ann. 300; State v. Maas, 37 La. Ann. 292; People v. Kemp, 76 Mich. 410, 43 N. W. 439; State v. Morton, 27 Vt. 310, 65 Am. Dec. 201. Instrument In form of cashier's checl<, properly described as "order for money." — Com. v. Parsons, 138 Mass. 189. 17 Miller v. State, 71 Fla. 338, 71 So. 280. "A certain bond" alleged to have been forged, instead of stating a certain paper writing purporting to be a bond, proper designation under statute using the words "forge any deed, will, bond," etc. — State V. Gardiner, 23 N. C. (1 Ired.'L.) 27. § 683 FOKGERT. 941 book and writing commonly known as the duplicate of the taxes levied for the use of the school district" sufficiently describes a duplicate of taxes alleged to have been forged.^^ "Fee-bill" is a proper designation in an indict- ment for forging a court document of that name, without an allegation that the forgery was of a certified fee-bill.^® ' ' Lease " is a proper designation of an instrument of that import.-" ''Order" is a proper designation of an instru- ment calling for the payment of money, or the delivery of goods ;^^ but it is not necessary to aver, in the lan- guage of the statute, that the alleged forged paper is "an order for the payment of money, or an instrument by which a pecuniary demand is created" ;^^ and an order for the payment of money drawn by accused on himself, payable to his own order, accepted and indorsed by him, may be described as a "bill of exchange."^' "Pay-roll" is a proper designation in an indictment charging for- gery, even though such an instrument is not named in the statute.^* Promissory note alleged to have been forged, and set forth according to its tenor, need not be de- scribed as an instrument "for the payment of money" ;^® 18 Com. V. Beamish, 81 Pa. St. let the boy have $6.00 dolers for 389. me. B. W. Earl," properly de- 10 State V. Haws, 98 Mo. 188, scribed as an order. — Evans v. 11 S. W. 574, 12 S. W. 126. State, 8 Ohio St 196, 70 Am. Dec 98. Instrument charged to be falsely altered in its character, alleged to 21 Examples. — "To Yet Wha's be an order for money, or for the store— Sirs: Please pay to May ien delivery of goods, at the option of Fang, the one hundred dollars the holder, must he so described in which I deposited," etc., held to be the indictment.— State v. Stephen, an "order" within the meaning of 45 La. Ann. 702, 12 So. 883. the statute.— People v. Ah Woo, 28 22 People v. Clements, 26 N. Y. Cal. 205. 193, 5 Park. Cr. Rep. 337. "Pay W. T. C. or bearer, one 23 Com. v. Butterick, 100 Mass. fifty dollars in current funds," held 12. to be an order for the payment of 24 Com. v. Bargar, 2 L. T., N. S. money. — State v. Coyle, 41 Wis. (Pa.) 161. 267. 25 Com. V. Castles, 75 Mass. (9 "Wen. 19th. Mr. Davis, please Gray) 123. 20Folden v. State, 13 Neb. 328, 14 N. W. 412. 942 CRIMINAL PROCEDURE. § 684 and "promissory note" is a proper description of an in- strument by which the signers promise to pay at a cer- tain time, a specified amount of money, with interest and attorney fees, without relief from valuation or appraise- ment laws.^® Eeceipt charged to have been forged against a "book account," is too indefinite.^^ "School voucher or check" is a sujfficient description, it being evident that "voucher" and "check" mean the same thing. ^* "War- rant and order" is a proper designation under a statute speaking of a "warrant or order. "^® § 684. Instrument in foreign language. By the common-law rule, where an instrument alleged to have been forged was written in a foreign language, the in- dictment is required to set out the instrument in the lan- guage in which it was written, with an English transla- tion thereof ;^ but under the practice in this country, in many of the jurisdictions at least, an indictment or in- formation setting out a translation of the instrument al- leged to be forged, without giving a copy thereof in the original, is sufficient.^ Such translation, however, must include everything in the original that is material to its validity as an instrument in writing.^ Where the signa- ture alone is forged, and the writing is in German script, and the name as thus written in German and as written 26 People V. Bennett, 122 Mich. 32 Eng. C. L. 571; R. v. Szudurskle, 281, 81 N. W. 117. 1 Moo. C. C. 429. 27 State V. Dalton, 6 N. C. (2 2 People v. Ah Woo, 28 Cal. 205; Murph.) 379. Ihiffln v. People, 107 111. 113, 47 28 Thomas v. State, 18 Tex. App. Am. Rep. 431. 213., 3 Marginal words denoting the 29 State V. Jones, 1 McM. L. year in which issued, and without (S. C.) 236, 36 Am. Dec. 257. See which the instrument would not be State V. Maas, 37 La. Ann. 292; capable of being circulated in the State y, Holley, 1 Brev. (S. C.) 35. country to which it belonged, a 1 R. V. Goldstein, 3 Brod. & B. translation which omits those 201, 7 Eng. C. L. 411, 7 Moo. C. P. words will be insufficient. — R. v. 1, 10 Price 88, 1 Russ. & R. C. C. Harris, 7 Car. & P. 429, 32 Eng. 473; R. V. Harris, 7 Car. & P; 429, C. L. 571. §685 FOEGEEY. 943 in English is the same, it may be set out as written, with- out employing English letters,* although it has been held necessary in such a case to allege that the signature is German script, and give the English equivalent.^ ' — Lost, destboyed, ok withheld instrument. §685. - In those cases in which the instrument alleged to have been forged has been lost, destroyed, or for any other reason it is unobtainable — e. g., where it is withheld by the accused, or its whereabouts is unknown to the grand jury — an indictment or information setting forth the sub- stance of the instrument will be sufficient, without set- ting forth the tenor,^ where the particular reason or excuse is given for failure to set it out in haec verba,^ and iDuffin V. People, 107 111. 113,- 47 Am. Rep. 431; Byerline v. State, 147 Ind. 125, 45 N. E. 772. 5 People V. Bennett, 122 Mich. 281, 81 N. W. 117. 1 ALA. — Du Bois v. State, 50 Ala. 139. CAL.— People V. Bogart, 36 Cal. 245. ILL.— Wallace v. People, 27 111. 45. IND.— Armitage v. State, 13 Ind. 441; Blrdg v. State, 31 Ind. 88; Munson v. State, 79 Ind. 541; Myers v. State, 101 Ind. 379 ; State V. Callahan, 124 Ind. 364, 24 N. E. 732. IOWA — State v. White, 98 Iowa 346, 67 N. W. 267. MASS.— Com. V. Snell, 3 Mass. 82. N. J. — State V. Potts, 9 N. J. L. (4 Halst.) 26, 17 Am. Dec. 449; Mead v. State, 53 N. J. L. 601, 23 Atl. 264. N. Y.— People V. Kingsley, 2 Cow. 522, 14 Am. Dec. 520; People v. Badg- ley, 16 Wend. 53 ; People v. Dewey, 35 Hun 308. N. C— State v. Peter- son, 129 N. C. 556, 85 Am. St. Rep. 756, 40 S. E. 9. VT.— State v. Parker, 1 D. Chip. 298, 11 Am. Dec. 735; State v. Briggs, 34 Vt. 501. FED. — United States v. Britton, 2 Mas. 464, Fed. Cas. No. 14650; Wnited States v. Howell, 64 Fed. 110. 2 ARK. — Crossland v. State, 77 Ark. 537, 92 S. W. 776. FLA.— West V. State, 45 Fla. 118, 33 So. 854. GA.— Taylor v. State, 123 Ga. 133, 51 S. E. 326. ILL.— Wallace V. People, 27 111. 45; People v. Tilden, 242 111. 536, 134 Am. St. Rep. 341, 17 Ann. Cas. 496, 31 L. R. A. (N. S.) 215, 90 N. E. 218. IND.— Armitage v. State, 13 Ind. 441; Birdg v. State, 31 Ind. 88; Hess V. State, 73 Ind. 537; Mun- son V. State, 79 Ind. 541; Myers v. State, 101 Ind. 379; State v. Calla- han, 124 Ind. 364, 24 N. E. 732. KAN. — State v. McNaspy, 58 Kan. 691, 38 L. R. A. 756, 50 Pac. 895. KY.— Hill T. Com., 17 Ky. L. Rep. 1135, 33 S. W. 823. ME.— State v. Bonney, 34 Me. 383; State v. Witham, 47 Me. 165. MASS.— Com. V. Houghton, 8 Mass. 107. MO.— State v. Clinton, 87 Mo. 380, 29 Am. Rep. 506; State v. Im- hoden, 157 Mo. 83, 57 S. W. 536. N. J.— State V. Potts, 9 N. J. L. (4 Halst.) 26, 17 Am. Dec 449. 944 CRIMINAL PKOCEDURB. §686 the statement of the substance of the instrument' is sufficiently full to enable the court to see that it was such an instrument as is capable of being forged under the statute.* An allegation by the grand jury as to mere lack of knowledge is not a sufficient reason to excuse setting out the instrument.® If the forged instrument is in the hands of the accused, that fact should be averred in the indictment or information f any other specific ex- cuse that may exist should be likewise fully set forth.^ — Indorsements. The indorsements upon a §686. - written instrument alleged to have been falsely made or altered, need not be set out, because such indorsements N. Y. — People V. Kingsley, 2 Cow. 522, 14 Am. Dec. 520; People v. Hertz, 35 Misc. 177, 15 N. Y. Cr. Rep. 477, 71 N. Y. Supp. 489. N. C— State v. Peterson, 129 N. C. 556, 85 Am. St. Rep. 756, 40 S. E. 9. OHIO— Dana v. State, 2 Ohio St. 91. TENN. — Hooper v. State, 27 Tenn. (8 Humph.) 93; Croxdale V. State, 38 Tenn. (1 Head) 140; Luttrell V. State, 85 Tenn. 232, 4 Am. St. Rep. 760, 1 S. W. 886. TEX.— Webb v. State, 39 Tex. Cr. 534, 47 S. W. 356; Dudley v. State, 58 S. W. 111. VT.— State v. Parker, 1 D. Chip. 298, 6 Am. Dec. 735; State v. Briggs, 34 Vt. 501. Loss of instrument need not be averred in the indictment or in- formation. — State V. Peterson, 129 N. C. 556, 85 Am. St. Rep. 756, 40 S. E. 9. Better practice in such cases is to aver the loss of the instrument, that it is in the accused's posses- sion, or give any other sufficient excuse for not setting out. — State V. Peterson, 129 N. 0. 556, 85 Am, St. Rep. 756, 40 S. E. 9. SILL. — Wallace v. People, 27 111. 45. IND.— Birdg v. State, 31 Ind. 88. KY.— Hill v. Com., 17 Ky. L. Rep. 1135, 33 S. W. 823. MASS. — Com. V. Spilman, 124 Mass. 327, 26 Am. Rep. 668. TEX. — Pierce v. State, 38 Tex. Cr. Rep. 604, 44 S. W. 492. VT.— State V. Briggs, 34 Vt. 501. Necessity of setting fortii all that is necessary to show the doc- ument forged, or that the indorse- ment forged bore such relation to the instrument as to be a subject of forgery, is not obviated by loss or other excuse for not setting forth the instrument. — Com. v. Spilman, 124 Mass. 327, 26 Am. Rep. 668. 4 Wallace v. People, 27 111. 45. 5 State V. McNaspy, 58 Kan. 691, 38 L. R. A. 756, 50 Pac. 895. 6 State V. Parker, 1 D. Chip. (Vt.) 298, 6 Am. Dec. 735. 7 Partly burned Instrument, or so blotted as to be illegible, the respective fact being set out, will excuse setting out the instrument by tenor, even in those cases where parol evidence can supply the missing or blotted portion. — Munson v. State, 79 Ind. 541. §687 FOKGEET. 945 form no part of the instrument.^ Thus, where a bill is charged to have been forged under a fictitious name,^ the subsequent indorsements thereon need not be set out.* Wliere the forgery of an indorsement is the thing that is charged, it must affirmatively appear that the indorse- ment, as written, became a part of an instrument which is the subject of forgery;* but the indictment need not show that, previous to the indorsement, the instrument was one possessing legal efficacy and obligation.^ Margiital devices, woeds and figtjkes, etc. §687. - An indictment or information charging forgery of a writ- ten instrument of any kind is required to set out such portions, only, of such instrument as are material to its 1 ARK.— Crossland v. State, 77 Ark. 537, 92 S. W. 776. MASS.— Com. V. Ward, 2 Mass. 397; Com. V. Adams, 48 Mass. (7 Mete.) 50. MO.— State v. Yerger, 86 Mo. 33; State V. Carragin, 210 Mo. 351, 16 L. R. A. (N. S.) 561, 109 S. W. 553. N. Y.— Miller v. People, 52 N. Y. 304, 11 Am. Rep. 706, 1 Cow. Cr. Rep. 535. OHIO — Hess v. State, 5 Ohio 5, 22 Am. Dec. 767; Simmons v. State, 7 Ohio (pt. I) 116. OKLA.— State v. Curley, 161 Pac. 831. S. C— State v. Tutt, 2 Bail. Li. 44, 21 Am. Dec 508. TEX.— Labbaite v. State, 6 Tex. App. 261; Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; Bader V. State, 44 Tex. Cr. 184, 69 S. W. 506; Brady v. State, 74 S. W. 771; Wesley v. State, 67 Tex. Cr. Rep. 507, 150 S. W. 197. VA. — Perkins V. Com., 48 Va. (7 Gratt.) 651, 56 Am. Dec 123. WYO.— Santolini v. State, 6 Wyo. 110, 71 Am. St. Rep. 746, 42 Pac. 746. FED.— United States V. Peacock, 1 Cr. C. C. 215, Fed. Cas. No. 10019. Indorsed merely means written I. Crlm. Proc— GO upon. — Com. v. Butterick, 100 Mass. 12. Name written upon note to show in whose hands Instrument placed for collection need not be set out. — State v. Jackson, 90 Mo. 156, 2 S. W. 128. Writing placed after execution upon an instrument charged to have been forged by making same, need not be set out. — ^Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215. 2 As to forgery under fictitious name, see, supra, § 662. 3 United States v. Peacock, 1 Cr. C. C. 215, Fed. Cas. No. 16019. 4 Com. V. Spilman, 124 Mass. 327, 26 Am. Rep. 668. Loss of note does not obviate necessity of setting out the forged indorsement. • — Com. v. Spilman, supra. 5 Fry V. State, (Tex.) 182 S. W. 331, where it was held unneces- sary to allege the authority of the drawer of the check to make It, the charge being the forging of the indorsement of the payee. 946 CRIMINAL PEOCEDURE. § 687 force and validity; hence, where such an instrument is set out in haec verba, the mottos and words in the bor- der, or the words and figures in the margin, which do not constitute a part of the instrument, need not be set out, they constituting no essential description of the in- strument.^ That is to say, the ornamental parts of a bill, consisting of the devices, mottos, and so forth, need not be set out.^ Likewise the figures cut in a draft charged to have been forged, need not be set out.* The name of a subscribing witness, not being necessary to the valid- ity of the instrument, need not be given in an indictment or information charging its forgery ;* and marginal nota- tions on an instrument need not be given where the amount thereof is contained in the body of the instru- ment set out.® Bank-bills charged to have been forged, neither the numbers of the bills,* nor the marginal figures indicating the amount, need be set out, being no part of the bills.'' A revenue stamp required by law to be 1 Smith V. state, 29 Fla. 408, 10 Dec. 3; Com. v. Stevens, 1 Mass. So. 894; State v. Fley, 26 Me. 312; 203. TEX.— Beer v. State, 42 Tex. People V. Franklin, 3 Johns. Cas. Cr. Rep. 505, 96 Am. St. Rep. 810, (N. Y.) 299. 60 S. W. 962. WIS.— State v. Hill, Marginal figures or border 30 Wis. 416. words, etc., which are necessary Autliorlties entirely harmonious to the validity of the instrument, to the effect that the revenue must be set forth in the indict- stamp attached to a written instru- ment or Information. — See, supra, ment, such as a check, a draft or § 684, footnote 3. a note, forms no part thereof. See, 2 State V. Sheldon, 8 Rob. (La.) among many other cases, in addi- 540. tion to the authorities above 3 White V. Territory, 1 Wash, cited: CAL. — Hallock v. Jaudin, Tr. 279, 24 Pac. 447. 34 Cal. 167; Thomasson v. Wood, i People V. Sharp, 53 Mich. 523, 42 Cal. 416. MASS.— Trull v. Moul- 19 N. W. 68. ton, 94 Mass. (12 Allen) 396; sLangdale v. People, 100 111. Green v. Holway, 101 Mass. 246, 263. 3 Am. Rep. 339. MINN.— Cole v. ' 6 Griffin V. State, 14 Ohio St. 55; Curtis, 16 Minn. 182; Cabbott v. State V. Carr, 5 N. H. 367. Radford, 17 Minn. 320; Wilder v. 7 CAL. — People v. Tomlinson, 35 Dellou, 18 Minn. 470. MISS. — Mor- Cal. 503. ILL. — Cross v. People, 47 ris v. McMorris, 44 Miss. 441, 7 111. 152, 95 Am. Dec. 474. MASS.— Am. Rep. 695. VT. — Porter v. Com. V. Bailey, 1 Mass. 62, 2 Am. Bank, 19 Vt. 412. § 688 FORGERY. 947 attached to the instrument alleged to have been forged, constitutes no part thereof, and an indictment or infor- mation charging the forgery need not set out or describe such stamp, or allege that one was affixed to the instru- ment.* § 688. Facts extrinsic to instrument — In general. We have already seen that the indictment or informa- tion must show on its face (1) that the writing charged to have been forged is one of the instruments enumerated in the statute, and (2) that it is a writing apparently valid, and if valid, obligatory.^ In all other instances the general rule applies that if the instrument is void on its face, it is not the subject of forgery, except in those cases where an instrument, of no apparent validity, is capable of working injury by reason of extrinsic facts, and an indictment or information setting out such extrinsic facts will be supported.^ Where the instrument is so imper- fect and incomplete, in and of itself, that its real meaning and terms are not intelligible from its words and figures, but are to be derived from extrinsic facts, and its capacity to injure is dependent upon extrinsic facts, such ex- trinsic facts may be averred in the indictment or infor- mation, and the instrument, its meaning and purport, made clear and intelligible to the court thereby; and where the averment of such extrinsic facts makes it to appear judicially with as much certainty as if the extrin- sic facts were set out in the face of the instrument, and the instrument itself pleaded in hfec verba, the indict- ment or information will be sufficient.* But where the s Miller V. People, 52 N. Y. 304, 141. See: IND.— Reed v. State, 11 Am. Rep. 706, 1 Cow. Cr. Rep. 28 Ind. 396. MASS.— Com. v. Ray, 535. 69 Mass. (3 Gray) 441. MINN.— 1 See, supra, § 658. State v. Wheeler, 19 Minn. 98, 1 2 Rembert v. State, 53 Ala. 467, Green Cr. L. 541. N. Y.— People 25 Am. Rep. 639, 2 Am. Or. Rep. v. Shall, 9 Cow. 778; People v. 141; State V. Briggs, 34 Vt. 503. Stearns, 21 Wend. 409; affirmed, 3 Rembert v. State, 53 Ala. 467, 23 Wend. 634 ; People v. Harrison, 25 Am. Rep. 639, 2 Am. Cp. Rep. 8 Barb. 560. OHIO — Carberry v. 948 CRIMINAL PEOCEDUEE. §688 instrument alleged to have been forged is void or invalid on its face, and can not be made valid or capable of in- jury by the allegation of extrinsic facts, the crime of for- gery can not be predicated upon it ;* as, where the deed of a married woman is charged to have been forged, but as set out, the instrument was without acknowledgment, an acknowledgment being reqnired under the laws of the state where executed ;^ a certificate of jurors ' attendance upon court and the fees to which entitled, issued by clerk of the court, without authority or warrant of law;® a warrant drawn on the city treasury not in the form pre- scribed by ordinance, and not signed by the persons des- ignated by law, and which is for that reason without effect or capable of injury;^ a nudum pactum,* and the like. state, 11 Ohio St 411. TEX.— Anderson v. State, 20 Tex. App. 595; Rollins v. State, 22 Tex. App. 548, 58 Am. Rep. 659, 3 S. W. 759. VT.— State v. Briggs, 34 Vt. 503. "An indictment or information must not only allege the false making or alteration of a writing specified in the statute, with the intent to defraud some named per- son or body corporate, but it must also appear on the face of the in- dictment that the fabricated writ- ing either of itself, or in connec- tion with the extrinsic facts averred, is such that, if genuine, it would be valid, in law, to preju- dice the rights of the person or body corporate thus named." — Clarke v. State, 8 Ohio St. 630. 4 Territory v. De Lana, 3 Okla. 572, 41 Pac. 618. See: IDA.— Peo- ple V. Heed, 1 Ida. 531. ILL.— Waterman v. People, 67 111. 92. ME.— Abbott V. Ross, 63 Me. 194, 16 Am. Rep. 427. MASS.— Com. v. Ray, 69 Mass. (3 Gray) 441; Com. V. Hinds, 101 Mass. 209. NEB.— Roods y. State, 5 Neb. 174, 25 Am. Rep. 475. TEX. — Anderson v. State, 20 Tex. App. 595; Rollins v. State, 22 Tex. App. 548, 58 Am. Rep. 659, 3 S. W. 759; Hendricks V. State, 26 Tex. App. 176, 8 Am. St Rep. 463, 9 S. W. 555. VT.— State V. Briggs, 34 Vt. 503. sRoode v. State, 6 Neb. 174, 25 Am. Rep. 475. 6 Territory v. De Lana, 3 Okla. 572, 41 Pac. 618. 7 Raymond v. People, 2 Colo. App. 329, 30 Pac. 504, citing Trav- elers' Ins. Co. V. Denver, 11 Colo. 435, 18 Pac. 556; Merkel v. Berks County, 81 Pa. St 505. 8 Examples. — "Three months after date, I promise to pay Sebas- tian I. Shall, or bearer, the sum of three dollars, in shoe making, at cash price; the work toi be done at his dwelling house near Simon Vrooman, in Mlnden, August 24th, 1826. David W. Haughtailing."— People V. Shall, 9 Cow. (N. Y.) §689 FORGEUY. 949 § 689. When to be alleged and sufficiency of AVERMENTS. We havc already seen that at common law an indictment charging forgery was extremely technical,^ and that the instrument alleged to have been forged was required to be set out in hseo verba,^ and this is also required under statute in many of the states.* Where the instrument set out is such that the court ,may judicially see that it might be made the vehicle of fraud and preju- dice, averments of extrinsic circumstances are not neces- sary;* neither are such averments necessary where the 778. The courts say: "It is scarcely necessary to observe that the in- strument set out in this indict- ment is not a promissory note, within the statute of Anne ; and It is agreed that tte writing does not come within any of the statutes of forgery, it being payable neither in money nor goods, but labor. . . . Another defect renders it utterly void, of itself, as a common law contract. It expresses no value received, nor any considera- tion whatever; and no action could be maintained upon It, if genuine, as a special agreement to perform labor, without averring and prov- ing a consideration dehors the in- strument." "Bozeman, December 25, '94. Schumacher, Esq.: Please pay to the order of W. L. Evans, the amt. of twenty dollars ($20,00) and charge to him at my ofllce. Johnson & McCarthy." — State v. Evans, 15 Mont. 539, 39 Pac. 850. The courts held the above instru- ment, if genuine, could not pos- sibly damage, even If accepted; that Johnson & McCarthy were not made responsible, and Evans could accomplish as much without the instrument as with It. John- son & McCarthy did not ask to have the amount charged to them but to Evans; that the order, as it appeared on its face, would not accomplish the advance of the money by Schumacher to Evans on the credit of Johnson & Mc- Carthy; that Schumacher would as readily have advanced the money without the order as with It. 1 See, supra, § 654. 2 Rembert v. State, 53 Ala. 467, 25 Am. Rep. 369, 2 Am. Cr. Rep. 141. See, also, supra, § 677. 3 Garmire v. State, 104 Ind. 444, 5 Am. Cr. Rep. 238, 4 N. E. 54; State V. Horan, 64 N. H. 548, 7 Am. Or. Rep. 191, 15 Atl. 20; Simms v. State, 32 Tex. Cr. Rep. 277, 22 S. W. 876. 4 MASS. — Com. V. White, 145 Mass. 392, 14 N. E. 611. NEB.— Morearty v. State, 46 Neb. 652, 10 Am. Cr. Rep. 418, 65 N. W. 784. N. J.— Mead v. State, 53 N. J. L. 601, 23 Atl. 264. N. Y.— People v. Stearns, 21 Wend. 409; affirmed, 23 Wend. 634. N. C — State v. Bourdon, 13 N. C. (2 Dev. L.) 443. PA. — Com. V. Beachop, 2 Pa. Sup. Ct. 294. TEX.— Horton v. State, 32 Tex. 79; Morris v. State, 17 Tex. App. 660. VA. — Gordon v. Com., 100 Va. 825, 57 L. R. A. 744, 41 950 CRIMINAL PEOCEDUSE. §689 instrument is set out, and nothing could he added by S. B. 846. W. VA.— state v. Ting- ler, 32 W. Va. 546, 25 Am. St. Rep. 830, 9 S. E. 935. An Indictment for the forgery of an instrument to defraud the United States is sufficient where It sets out the writing and it ap- pears therefrom that it might have the effect to defraud, with- out averring generally the intent to defraud the United States, and all extrinsic circumstances need not be set out. — ^United States v. Lawrence, 13 Blatchf. 211, Fed. Cas. No. 15572; Meldrum v. United States, 80 C. C. A. 545, 151 Fed. 177, 10 Ann. Cas. 324. It need not be alleged that the instrument would, were it genu- ine, have created, diminished, or defeated a pecuniary obligation. — State V. Barber, 105 Miss. 390, 63 So. 361; Davis v. State, 70 Tex. Cr. Rep. 253, 156 S. W. 1171. Alteration of receipt for pur- chase money of farm alleged, it ia not necessary to set out the trans- actions between the parties, and that the original receipt was de- livered to the accused as an ac- quittance or discharge. — State v. Shelters, 51 Vt. 102, 31 Am. Rep. 679. Bank-checl< alleged to have been forged, the indictment need not set out the general usage among bankers as affecting the legal op- eration of the check, as that mat- ter may be proved on the trial without averment. — State v. Mor- ton, 27 Vt. 310, 65 Am. Dec. 201. Conveyance of land with knowl- edge that title thereto was forged being alleged, indictment need not set out fully the title alleged to have been forged, but may make a substantial statement thereof. — Whatson v. State, 78 Ga. 349. Corporation institution intended to be defrauded need not be al- leged. — People V. Biddison, 136 App. Div. (N. Y.) 525, 121 N. Y. Supp. 129, 24 N. Y. Cr. Rep. 343; affirmed in 199 N. Y. 584, 93 N. B. 378; Lamb-Campbell v. State, 72 Tex. Cr. Rep. 628, 162 S. W. 879. Forgery of deed charged, the title of the person intended to be defrauded need not be set out; neither need it be alleged in what the forgery consisted. — People v. Van Alstine, 57 Mich. 69, 6 Am. Cr. Rep. 272, 23 N. W. 594; People v. Parker, 67 Mich. 212, 11 Am, St. Rep. 578, 34 N. W. 720. Or the manner In which the in- strument might have defrauded the person whose name was at- tached thereto. — Page v. People, 3 Abb. App. Dec. (N. Y.) 439, 6 Park. Cr. Rep. 683. "Gardlans of the Poor 327,882, $389, No. 969, item, Walter S. Mur- phy. Received above warrant. W. S. Murphy," charged to have been forged, indictment sufficient without showing manner in which such instrument might have de- frauded, the legal efficacy thereof being determined from the inspec- tion of its face. — Com. v. Phipps, 40 Leg. Int. (Pa.) 180. Order alleged to have been forged, there seems to be no ne- cessity for alleging that it was drawn upon the corporation by a name different from the name under which incorporated, where the instrument is set out in hsec verba. — State v. Morton, 27 Vt. 310, 65 Am. Dec. 201. "$5.00 as per deed" charged to §689 FORGEET. 951 such averments.'' In those cases, however, in which the instrument thus set out does not show on its face that it imports an obligation in respect to property or money, or is so imperfect and so obscure as to be unintelligible without reference to extrinsic facts, such extrinsic facts must be alleged as will apprise the court that the instru- ment has the alleged vicious capacity,* and the indict- ment or information will be sufficient where, by the alle- gation of such extrinsic facts, it is made judicially to appear to the court that the alleged forged instrument has the capacity of effecting fraud or injury.^ The ex- have been forged by erasing dol- lar mark and inserting a figure 2, and adding words so as to make the instrument read "25.00 as per deed; 10 per cent imtil paid," held to be a promissory note, and not necessary to allege extrinsic facts. — State V. Schwartz, 64 Wis. 432, 25 N. W. 417. 5 Lamb-Campbell v. State, 72 Tex. Cr. Rep. 628, 162 S. W. 879; DiUard v. State, (Tex.) 177 S. W. 99. The forged instrument being set forth according to tenor, it is not necessary to specifically allege that the name charged to have been forged was aSixed to the in- strument, that fact appearing from the instrument set forth. — State v. Yerger, 86 Mo. 33. 6 ALA. — Rembert v. State, 53 Ala. 467, 25 Am. Rep. 639, 2 Am. Cr. Rep. 141; Fomby v. State, 87 Ala. 36, 6 So. 271. IND.— Reed v. State, 28 Ind. 396; Cook v. State, 52 Ind. 574; Shannon v. State, 109 Ind. 407, 10 N. E. 87. LA.— State V. Murphy, 46 La. Ann. 45, 14 So. 920. MASS. — Com. v. Dunleay, 157 Mass. 386, 32 N. E. 356. N. Y.— People V. Savage, 5 N. Y. Cr. Rep. 541. PA. — Com. V. Mulholland, 12 Phila. (Pa.) 608, 35 Leg. Int. 112. TEX.— King v. State, 27 Tex. App. 567, 11 Am. St. Rep. 203, 11 S. W. 525. "We, the undersigned, promise to become members of the . . . Business Men's Association, . . . and promise to pay to said asso- ciation $10 each for one year membership, . . . providing all the first-class merchants in H. shall sign this instrument," shows on its face that it created a com- plete liability when the leading merchants of said H. had signed, only, and for that reason a charge of forgery could not be based upon it, in the absence of an averment of extrinsic facts which would give the instrument force and va- lidity. — Carder v. State, 35 Tex. Cr. Rep. 105, 31 S. W. 678. "Twenty milreis" set out In an Indictment charging the forging of a pecuniary obligation of Brazil, is insufficient, such expression not being known to our language, and for that reason the indictment on its face does not import a pecu- niary obligation. — Sanabria v. State, 24 Hun (N. Y.) 270. 7 ALA. — Rembert v. State, 53 Ala. 467, 25 Am. Rep. 639, 2 Am. 952 CRIMINAL PEOCE0URE. §680 trinsic facts thus set out must be sucli as to show that the instrument, if genuine, would create a liability on the part of the person sought to be injured.* Thus, an ac- countable receipt alleged to have been forged against a designated elevator company, purporting to be a receipt for certain wheat, and signed by "M. G., Inspector," the indictment or information is insufficient in the absence of an allegation of any connection between the said elevator company and said inspector f and an indictment charging C, with intent to defraud L, falsely altered a receipt given to the latter by the county treasurer on payment Cr. Rep. 141. IND.— Reed v. State, 28 Ind. 396. LA. — State v. Leo, 108 La. 496, 15 Am. Cr. Rep. 272, 32 So. 447. MASS.— Com. v. Hinds, 101 Mass. 211. MINN.— State v. Wheeler, 19 Minn. 98. N. Y.— People V. Stearns, 21 Wend. 413; affirmed, 23 Wend. 634. OHIO— CarbeiTy t. State, 11 Ohio St. 411. TEX. — Hendricks v. State, 26 Tex. App. 176, 8 Am. Cr. Rep. 279; King V. State, 27 Tex. App. 567, 11 Am. St. Rep. 203, 11 S. W. 525; Craw- ford V. State, 40 Tex. Cr. 344, 11 Am. Cr. Rep. 432, 50 S. W. 378; Huckaby v. State, 45 Tex. Cr. 577, 108 Am. St. Rep. 975, 78 S. W. 942. An indictment setting out the instrument as follows: "May 22, 1897, Mr. Brin, Pies let John Wom- ble hame ine thing that he wornt — J. O. Thompson," without explana- tory averments is fatally defec- tive.— Womble V. State, 39 Tex. Cr. 24, 11 Am. Cr. Rep. 438, 44 S. W. 827. This instrument, "Mr. Goldstone Please let Bare Have the sume of $5 Dollars in Grosses and charge the same to DR F T Cook," is not so incomplete or unmeaning as to need averments of extrinsic facts, and is subject of forgery. — Hen- dricks V. State, 26 Tex. App. 176, 8 Am. Cr. Rep. 279. Where the forgery charged con- sisted in making and engraving a plate in the form of a promissory note issued by a bank in Havana, Cuba, for the payment of fifty centavos the indictment need not define the meaning of the word centavos. — People v. D'Argencour, 95 N. Y. 624, 4 Am. Cr. Rep. 240; affirming 32 Hun 178. Railroad pass alleged to have been forged, indictment must al- lege the authority of the ofiicer whose name is forged and the obligation of the company to honor it.— State v. Weaver, 84 N. C. 836, 55 Am. Rep. 647. 8 ALA. — Burden v. State, 120 Ala. 388, 11 Am. Cr. Rep. 431, 25 So. 190. CAL.— People v. Tomlln- son, 35 Cal. 506. MONT. — State V. Evans, 15 Mont. 539, 28 L. R. A. 127, 48 Am. St. Rep. 701, 39 Pac. 850. TEX.— Townser v. State, 182 S. W. 1104, an order to deliver goods and charge them to pur- ported maker. 9 State V. Wheeler, 19 Minn. 98. § 689 FORGERY. 953 of certain taxes due from L for the given year, making the receipt to represent the payment of a sum in excess of that originally expressed, will be insufficient without the averment of some extrinsic circumstances giving the receipt an operation beyond that imported by its terms.^" Check-book stub charged to have been altered so as to make it appear that a certain check was for an amount in excess of what it was in fact drawn for, indictment on information must allege extrinsic facts showing in what manner such alteration might defraud." Charging accused with having forged an instrument certifying the transfer of a note to himself by the holder, the indict- ment or information must specifically allege the execu- tion and delivery of the note.^^ Fee-bill charged to have been forged, the indictment or information must set forth the name of the county or circuit in which the cause was tried, or the county in which the fee-bill accrued.^^ Order on village treasury alleged to have been forged under the name of A, as village clerk, indictment or in- formation must further allege that the A whose name was signed to the order was not the accused, or that the accused was not the village clerk." Release by landlord of all liens held by him on tenant's crop for advances being charged to have been forged, the indictment or in- 10 Clarke V. state, 8 Ohio St. 630. indicating the performance of Forged receipt alleged to have work of a certain value by the been uttered, an averment desig- person therein named, alleged to nating the instrument as a "re- have been forged, extrinsic facts ceipt" does not change its prima must be set out showing in what facie character, and an allegation manner it created a demand that it was upon its face a receipt against the county. — State v. Gee, by the rules of the bank where it 28 Ore. 100, 42 Pac. 7. was used, is Insufficient because ' i: Com. v. Mulholland, 5 W. N. C. the indictment or Information (Pa.) 208. must show how the instrument, if ^^ gj^^^jj^g ^ ^^^^^^ 33 ,p^^ ^^j. genuine, would under such rules j^^p 377^ 22 S. W. 876. of the bank have had the effect of a reoeipt.-Henry v. State, 35 Ohio '' State v. Maupin, 57 Mo. 205. St. 128. 1* Snyder v. State, 8 Ohio Cir. Time-check by road supervisor, Ct. Uep. 403. 954 CRIMINAL PEOCEDUEE. § 690 formation must allege that advances had been made, thereby showing that liens existed, because if there were no liens, the landlord could not be injured by the false instrument.^" § 690. Explanation of instrument. In those cases in which an explanation of the instrument alleged to have been forged is required in order to show that it was such an instrument, as may be forged under the stat- ute, or to show that it may affect property interests, all the extrinsic matters and facts necessary thereto must be set out in the indictment or information, otherwise it will be insufScient. For example, an indictment charging accused with forging a written instrument of the follow- ing tenor: "April 28th, 1885. Dear Sir: I have nothing to do with Venie Dixon patch cotton they are welcome to it and to do as tliey please with it. W. W. Roberts. & all so Mary Ann the same. W. W. Eoberts." meaning thereby that the Eoberts named was the landlord and waived his lien on the patch cotton of one Venie Dixon, was insufficient because it failed to set out extrinsic facts showing that W. W. Roberts was the landlord, and that as such he had a lien on th-e "patch cotton."^ "Where accused was charged with having forged an instrument in the following form : * * Due 8.25, Askew Brothers, ' ' the indictment alleging that thereby the accused meant that eight dollars, and twenty-five cents were due from Askew Brothers, who were partners, was sufficient;^ but where the instrument alleged to have been forged was of the following tenor: "Boston, Aug. 6, 1868, St. James Hotel. I hereby certify that L. W. Hines & Co. have placed in my hotel a card of advertisements, as per their agree- ment by contract. J. P. M. Stetzen, Proprietor." and the 15 Williams v. State, 90 Ala. 649, So. 69. See, also, Williams v. 8 So. 825. See, also, Dixon v. State, State, 90 Ala. 649, 8 So. 825. 81 Ala. 61, 1 So. 69. 2 Rembert v. State, 53 Ala. 467, 1 Dixon V. State, 81 Ala. 61, 1 25 Am. Rep. 639, 2 Am. Cr. Rep. 141. § 691 FORGERY. 955 indictment did not set out extrinsic matter to show how the instrument might defraud, it was held bad.^ §691. Explanation of defective expbes- sioNS. In those cases in which an explanation of defective expressions in an instrument alleged to have been forged is necessary to make the instrument alleged to have been forged intelligible or effective, the extrinsic matter neces- sary to afford such explanation should be set out. Thus, where an order alleged to have been forged by the accused is not addressed to any person, and has an incomplete date, the indictment or information must set out facts explana- tory of each omission ;i and an order for the payment of money in the following form : " M. C. & Co. : Pay Binam $5.75. J. L. C," being alleged to have been forged, with the intent to defraud Millen, Connable & Go., the indict- ment or information must further set forth extrinsic facts showing the instrument to have been a money order by an averment of the meaning of the initials used in the instrument.^ But in those instances in which the de- fect is not such as to obscure the meaning, or affect the validity of the instrument, extrinsic facts need not be alleged. Thus, where the defect consists in the sign- ing of a promissory note, in the English language, in German or Gothic characters, the letters used being the same whether the name was written in English or in German, it is not necessary to allege the identity of the name or give an English translation;* and it has been held that where the indictment charges the forgery of an instrument in the name of Hannah McCormick and the instrument set out purported to be signed in the name of "Hannah McGormick," it will be sufficient without fur- ther allegation as to identity.* The Louisiana court has 3 Com. V. Hinds, 101 Mass. 209. 3 Duffin v. People, 107 111. 113, 1 Dixon V. State, (Tex.) 26 S. W. 47 Am. Rep. 431. 500. 4 State v. McCormick, 141 Ind. 2 Bynam v. State, 17 Ohio St. 685, 40 N. E. 1089. 142. 956 CRIMINAL PROCEDURE. §§ 692, 693 held that an instrument charged to have been forged in the following tenor: "Prime Wingard 507 # Cot. T. T. P.," the indictment or information need not set out extrinsic facts in order to enable the prosecution to introduce proof to show in what the forgery consisted.'' § 692. Joinder — Of defendant. Under the general rule regarding criminal pleading,^ all the persons inter- ested in perpetrating and carrying out a forgery in any of its phases, may be properly joined as defendants in the same indictment.^ § 693. Of offenses — ^Distinct crimes. The ques- tion whether the making of a forged instrument, the hav- ing in possession of a forged instrument, with the intent to pass the same, and the uttering or passing of such in- strument, constitute but one offense, or are separate and distinct offenses, seems to be purely a matter of statutory provision and statutory construction. Under some stat- utes it is held that the forging, having in possession, ut- tering and passing, are each distinct and separate offenses, and for that reason may not be joined in one indictment.^ In those jurisdictions in which this rule pre- 5 state V. Wingard, 40 La. Ann. 70 N. W. 600 ; State v. Blodgett, 733, 5 So. 54. 143 Iowa 578, 21 Ann. Cas. 231, 121 1 As to joinder of defendants N. W. 685. KY.— Huft v. Com., 19 generally, see, supra, §§ 351 et seq. Ky. L. Rep. 1064, 42 S. W. 907; 2 See People v. Van Alstine, 57 Messer v. Com., 26 Ky.. L. Rep. 40, Mich. 69, 6 Am. Cr. Rep. 272, 23 80 S. W. 489; Com. v. Miller, 115 N. W. 594, in which the respon- S. W. 234. LA.— State ■ v. Snow, dents were jointly indicted, but 30 La. Ann. 401; State v. HaUn, the question as to such joining is 38 La. Ann. 169. MICH. — People not discussed. v. McMillan, 52 Mich. 627, 18 N. W. 1 ARK.— Ball V. State, 48 Ark. 390; People v. Van Alstine, 57 94, 2 S. W. 462. IND.— Beyerllne v. Mich. 69, 6 Am. Cr. Rep. 272, 23 State, 147 Ind. 125, 45 N. B. 772; N. W. 594. MINN.— State v. Wood, State V. Flak, 170 Ind. 166, 83 N. B. 13 Minn. 121. MO. — State v. Mills, 995. IOWA— State v. McCormack, 146 Mo. 195, 47 S. W. 938; State v. 56 Iowa 585, 9 N. W. 916, overrul- Williams, 152 Mo. 115, 75 Am. St. ing State v. Nichols, 38 Iowa 110; Rep. 441. 53 S. W. 424; State v. State V. Bigelow, 101 Iowa 430, Carragln, 210 Mo. 351, 16 L. R. A. §693 FOEGEEY, 957 vails, an acquittal of either charge is not a bar to a prosecution for the other.^ Thus, in a case in which the accused was indicted under separate indictments charg- ing the forging, having in his possession, and uttering of several forged instruments in the names of different per- sons alleged to be fictitious,* as part of one transaction, and a trial was had on which the accused was acquitted under one of the indictments, it was held that acquittal was not a bar to his subsequent trial on the other indict- ments.* And an acquittal of the crime of uttering and publishing as true has been said not to involve a finding (N. S.) 561, 109 S. W. 553. TENN. — ^Buren v. State, 84 Tenn. (16 Lea) 61. TEX. — Hooper v. State, 30 Tex. App. 412, 28 Am. St. Rep. 926, 17 S. W. 1066; Nichols v. State, 39 Tex. Cr. Rep. 80, 44 S. W. 1901; Preston v. State, 40 Tex. Cr. Rep. 72, 45 S. W. 581. WIS.— Barton v. State, 23 Wis, 587. Acquittal of uttering not a bar to an indictment and prosecution charging the making of the forged instrument. — State v. Blodgett, 143 Iowa 587, 121 N. W. 685. — Texas rule. — Under the statute providing that a conviction for forging, uttering or attempting to utter a forged instrument shall he a har to any prosecution hased upon the same transaction or forged instrument, a former ac- quittal of uttering does not har a prosecution charging the forgery, and vice versa, as the statute makes a conviction only a har to a second prosecution. — Green v. State, 36 Tex. Cr. Rep. 109, 35 S, W. 971; Preston v. State, 41 Tex. Cr. Rep. 300, 53 S. W. 127, 881. Forgery is not a degree of the crime of uttering a forged instru- ment. — State V. BIgelow, 101 Iowa 430, 70 N. W. 600. Forgery is not necessarily in- ciuded in uttering, for one who utters need not be shown to have forged the instrument uttered. — State V. Blodgett, 143 Iowa 578, 21 Ann. Cas. 231, 121 N. W. 685. Nebraska ruie as regards the statute of limitations holds the forgery of an instrument and the uttering of such instrument by the same person constitutes a single crime within the statute of lim- itations. — State V. Leekins, 81 Neb. 280, 115 N. W. 1080. 2 ALA. — Harrison v. State, 36 Ala. 248. IND. — Beyerline v. State, 147 Ind. 125, 45 N. E. 772. MO.— State v. Williams^ 152 Mo. 115, 75 Am. St. Rep. 441, 53 S. W. 424. TEX. — Hooper v. State, 30 Tex. App. 412, 28 Am. St. Rep. 926, 17 S. W. 1066; Reddick v. State, 31 Tex. Cr. Rep. 587, 21 S. W. 684; Preston v. State, 40 Tex. Cr. Rep. 72, 48 S. W. 581. 3 As to forgery in fictitious name, see, supra, § 662. 4 Nichols V. State, 39 Tex. Cr. Rep. 80, 44 S. W. 1901. 958 CRIMINAL PROCEDURE. § 694 that the instrument alleged to have been passed was forged by the accused, and for that reason was not a bar to a subsequent prosecution for the forgery.^ And in a case where there were several drafts on the same sheet of paper, which were uttered and passed at the same time by the same person, it was said that, while the utter- ing was but a single offense,* the forging of each draft was a separate oifenseJ § 694. Acts or steps in the offense. Upon general principles, a single offense can not be split into separate parts, and the accused prosecuted for each of such separate parts, although each part may, in and of itself, constitute a separate offense; if the accused be prosecuted for one part, that ends the prosecution for that offense, provided such part of itself constitutes an offense for which a conviction can be had.^ Consequently, where the several offenses charged, though distinct in point of law, yet all springing out of substantially the same transaction, or are so connected in their facts as to make substantial parts of the same transaction, or a connected series of facts, the accused can not be preju- diced in his defense by their joinder, and the court will not quash the indictment or information, or compel an election.^ In harmony with these principles, in many of the jurisdictions, a charge of forging and a charge of uttering may be joined, on the ground that where a stat- ute declares an act unlawful when perpetrated in any one or all of several ways, the indictment may charge the 5 state V. Blodgett, 143 Iowa bar to a prosecution for uttering 578, 21 Ann. Gas. 231, 121 N. W. the others.— State v. Egglesht, 41 685; Beyerline v. State, 147 Ind. lowa 574, 20 Am. Rep. 612. 125, 45 N. E. 772; Preston v. State, ^ g^^^^^ ^ g^^^ 23 Wis. 587. 40 Tex. Cr. Rep. 72, 48 S. W. 581; Hooper v. State, 30 Tex. App. 412, ' State v. Colgate, 31 Kan. 511, 28 Am. St. Rep. 926, 17 S. W. 4'^ Am. Rep. 507, 3 Pac. 346. 1066. 2 Van Siclde v. People, 29 Mich. c Conviction for uttering one a 61. §G94 FOKGERT. 959 several acts in separate counts, basing each count upon tke different mode specified in which the act may be com- mitted.* Thus, under a statute providing that the false making or fraudulent uttering of a forged writing shall constitute forgery, an indictment or information charg- ing the accused with making and uttering the same in- strument charges but connected and consecutive parts of a single transaction.* On an indictment or information charging the forging and uttering of a mortgage and a 3 ARK.— McClellan v. State, 32 Ark. 609. CAL. — People v. Shot- well, 27 Cal. 394; People v. Frank, 28 Cal. 507; People v. De la Guerra, 31 Cal. 459; People v. Tomlinson, 35 Cal. 503; People v. Harrold, 84 Cal. 567, 24 Pac. 106; People V. Mitchell, 92 Cal. 590, 28 Pac. 597; People v. Smith, 103 Cal. 563, 37 Pac. 516. GA.— Hos- kins V. State, 11 Ga. 94; Gibson v. State, 79 Ga. 344, 5 S. E. 76; Lascelles v. State, 90 Ga. 347, 35 Am. St. Rep. 216, 16 S. B. 945. ILL.— Parker v. People, 97 111. 32. LA. — State v. Hahn, 38 La. Ann. 169 ; State v. Clement, 42 La. Ann. 583, 7 So. 685. MICH.— People v. Van Alstine, 57 Mich. 69, 6 Am. Or. Rep. 272, 23 N. W. 594; People V. Parker, 67 Mich. 222, 11 Am. St. Rep. 578, 34 N. W. 720. MO.— , State V. Jackson, 89 Mo. 561, 1 S. W. 760. MONT. — Territory v. Poulier, 8 Mont. 146, 19 Pac. 594. NEB.— In re Walsh, 37 Neb. 454, 55 N. W. 1075. N. Y.— People v. Rynders, 12 Wend. 425; People V. Adler, 140 N. Y. 331, 10 N. Y. Cr. Rep. 554, 35 N. E. 644; People V. Tower, 135 N. Y. 457, 10 N. Y. Cr. Rep. 229, 32 N. E. 145, affirm- ing 10 N. Y. Cr. Rep. 95, 17 N. Y. Supp. 395. N. C— State v. Keeter, SO N. C. 472. OHIO— Devere v. State, 5 Ohio Cir. Ct. Rep. 509, 3 Ohio Cir. Dec. 249. S. C. — State V. Houseal, 2 Brev. L. (S. C.) 219. TENN. — Poute v. State, 83 Tenn. (15 Lea) 712; Luttrell v. State, 85 Tenn. 232, 1 S. W. 886. TEX.— Boles V. State, 13 Tex. App. 656; Chester v. State, 23 Tex. App. 577, 5 S. W. 125; Peterson v. State, 25 Tex. App. 70, 7 S. W. 530; Crawford v. State, 31 Tex. Cr. Rep. 51, 19 S. W. 766; Lovejoy v. State, 40 Tex. Cr. Rep. 89, 48 S. W. 520. VT.— State v. Morton, 27 Vt. 310, 65 Am. Dec. 201. VA.— Rasnick v. Com., 4 Va. (2 Va. Cas.) 356. FED.— In re Adutt, 55 Fed. 376. Possession of several forged bank-notes or bank-bills of differ- ent banks being charged, all of which were taken from accused at one and the same time, he hav- ing been tried and convicted of having one of them in his posses- sion, was held to be a bar to a trial on a charge of having each of the other notes of the different banks. — State v. Benham, 7 Conn. 414. 4 State V. Klugherz, 91 Minn. 406, 1 Ann. Cas. 307, 98 N. W. 99; In re Walsh, 37 Neb. 454, 55 N. W. 1075; Devere v. State, 5 Ohio Cir. Ct. Rep. 509, 3 Ohio Cir. Dec. 249. 060 CRIMINAL PEOCEDUKE. § 605 note purporting to be secured thereby, at one and the same time, and to the same party, it was held that the making of the note and the mortgage, and the uttering of the same, constituted but one transaction, and could be included in an information charging the forging and uttering of both instruments.^ Where a person ut- tered, at a bank, several forged checks at one time and by the same act, it was held that he committed but one offense, and that a conviction for uttering one of the checks was a bar to a prosecution for uttering the others.^ And where acctised was charged with having forged a constable 's account against the county, and in connection therewith, in furtherance of his intention to defraud the county, forged an affidavit to the same, and also forged what purported to be a certificate of a justice of the peace to such affida^T.t, it was held that the account, affi- davit, and the certificate constituted collectively but one instrument, and that the act of forging all of these instru- ments constituted but one transaction.'' § 695. Op counts. In those jurisdictions in which it is held that forging a written instrument and the uttering or passing of such forged instrument, constitute two separate and distinct offenses,^ a charge of making and a charge of uttering or passing can not be joined in the same indictment;^ but the general rule is that where, under the statute, several distinct acts connected with the same general offense, and subject to the same penalties,, are punishable separately and as distinct crimes where committed by different persons, or at different times, they may, when committed by the same person, at the same time, be considered as representing steps or stages in 5 People V. Sharp, 53 Mich. 523, 7 Rosekrans v. People, 5 Thomp. 19 N. W. 168; State v. Moore, 86 & C. 467. Minn. 422, 61 L. R. A, 819, 90 •N. W. 787. e State v. Egglesht, 41 Iowa 574, 2 Messer v. Com., 26 Ky. L. Rep. 1 See, supra, § 693. 2 Messer v. Coi 20 Am. Rep. 612. 40, 80 S. W. 489. §695 FOEGEET. 961 the same offense, and for that reason may be combined in the same count^ of an indictment or information, and be treated as a single violation of law.* Hence, where a series of acts being enumerated by the statute, either of which separately or altogether may constitute the offense of forgery, an indictment or information which charges all the acts enumerated in the offense, with reference to the same instrument, charges but one offense; and the pleader may, in his discretion, charge them all in the same count," or in separate counts,® and in either form, 3 See, post, footnote 5, this seo tlon. 4 State v. Mead, 56 Kan. 690, 44 Pac. 619. On a charge of forging and ut- tering a mortgage, and also charg- ing the forgery and uttering of an acknowledgment, the acknowledg- ment Is to be properly treated as a part of the conveyance. — ^People V. Sharp, 53 Mich. 523, 19 N. W. 168. See Van Sickle v. People, 29 Mich. 61. 5 People V. Frank, 28 Cal. 507. See, also, authorities post, foot- note 7, this section. Charging in one count the forg- ery of an Indorsement on a bank- check, with intent to defraud a person named, and with offering the check so Indorsed to such per- son in payment for goods pur- chased, held to charge but a single offense. — People v. Altman, 147 N. Y. 473, 11 N. Y. Or. Rep. 449, 42 N. B. 180. See, to same effect: In re Walsh, 37 Neb. 454, 55 N. W. 1075; Territory v. Poulier, 8 Mont. 146, 19 Pac. 594. Charging, in one count, the ac- cused with forgery of a written instrument, and in another count charging him with uttering the same instrument on the same day L Crlm. Proc— ei/|( and at the same place, was held to charge one offense only — the crime of forgery. — People v. Ad- ler, 140 N. Y. 331, 10 N. Y. Cr. Rep. 554, 35 N. W. 644. Conjunctive allegation of dis- tinct acts enumerated in the stat- ute which, separately, or together, constitute the offense charged, is proper. See, supra, § 657, foot- note 31. Multifariousness can not be charged against an indictment or information charging accused did utter, publish, and show forth in evidence a certain false and forged instrument. See, supra, i 657, footnote 30. 6 See, supra, § 694, footnote 3 ; also: ARK. — Zachary v. State, 97 Ark. 176. 133 S. W. 811 (under! Kirby's Dig., § 2231, subd. 7) ; God- ard V. State, 100 Ark. 148, 149, 139 S. W. 1131. GA.-^ordan v. State, 127 Ga. 278, 56 S. E. 422. MO.— State V. Daubert, 42 Mo. 242; State V. Williams, 152 Mo. 115, 75 Am. St. Rep. 441, 53 S. W. 424; State V. Carragin, 210 Mo. 351, 16 L. R. A. (N. S.) 561, 109 S. W. 553. MONT.— State v. Mitton, 37 Mont. 366, 127 Am. St. Rep. 732, 96 Pac. 926, affirming 36 Mont. 376, 92 Pac. 969. NEB.— State v. 962 CRIMINAL PEOCEDURE. § 695 the indictment or information will be good.'' We have already seen that in a charge of having in possession more than one forged bank-note or bank-bill, the indict- ment or information may contain a count for each bank- note or bank-bill, joined in the same indictment.^ Charg- ing, in one count, the forging of a check of a certain tenor, and charging, in another count, the forging of a check of a given tenor, has been held to be good.® Where, under the statute, an indictment lies for transfer of a forged paper, knowing it to be forged, and with intent to defraud,^" the indictment or information may contain a count charging such offense joined with another count charging the forgery itself.^^ Where accused was charged in the first count, with having forged a mortgage ; in the second count, with having uttered the mortgage thus forged; in the third count, with having forged a certifi- cate of acknowledgment; in the fourth count, with having uttered the forged certificate of acknowledg- ment; in the fifth count, with having forged a bond; in the sixth count, with having uttered the forged bond, the indictment was held good.^^ Various acquit- tances and receipts for money charged to have been forged by the accused, in the first count there being an allegation of the uttering and publishing of a forged and counterfeit acquittance and receipt for money signed by A, and also twenty-two other certain false, forged and counterfeit acquittances and receipts for money of dif- Leekins, 81 Neb. 280, 115 N. W. 8 See, supra, § 565, particularly 1080. N. Y. — People v. Browne, footnotes 8 and 9. 118 App. Div. 793, 21 N. Y. Cr. 9 gj^^tg ^ gmg^ (jjigg ^ 73 g^^ Rep. 91, 103 N. Y. Supp. 903; 5g5_ 10 As under Tenn. Code, § 5493. affirmed, 189 N. Y. 528, 82 N. E. 1130. TEX.— Usher v. State, 47 Tex Cr. Rep. 98, 81 S. W. 712. n Luttrell v. State, 85 Tenn. FED.— Dillard v. United States, 72 232, 4 Am. St. Rep. 760, 1 S. W. CCA 451 141 Fed. 303. ^^^- ^®^ Foute v. State, 83 Tenn. 7 People V. Frank, 28 Cal. 507. (15 Lea) 715. See People v. Shotwell, 27 Cal. 12 Van Sickle v. People, 29 394. *Mich. 61. § G96 POEGERY. 963 ferent dates, for different sums, purporting to be signed by different persons; in the second count there being a charge of uttering one acquittance and receipt; in the third count there being a charge of forging and counter- feiting the same acquittance and receipt, the indictment was held to be good, on the ground that the receipts were charged to have been uttered at one and the same time and might constitute a single offense — the uttering of many forged receipts.^* Where the statute permits to be joined a count for forging, with a count for uttering a forged instrument, the joinder permitted applies only where the two offenses relate to the same instrument.^* Conviction can not be had on both counts where two or more counts are joined in the same indictment, one for the forgery and one for the uttering or passing, as that would be equivalent to a conviction for two separate and distinct offenses.^" § 696. Duplicity. The question of duplicity in an indictment or information charging forgery, is governed by the statutory provisions and constructions already discussed, under which the acts of forging and uttering are regarded as two distinct offenses,^ or as steps only, 13 R. V. Thomas, 2 East P. C. C. C. A. 194, 151 Fed. 214, 9 934. L. R. A. (N. S.) 1043. 14 Zachary v. State, 97 Ark. 176, ^ See, supra, § 693. „ „ ™. g-- Under such statutes an Indict- ment or information that charges 16 ILL. - Parker v. People, 97 ^^^ ^^^^^^ ^j ^ ^^^^ ^^^ ^^^^ ^^^ 111. 32. IND.— Selby v. State, 161 uttering of the forged deed in the Ind. 667, 69 N. B. 463. MO.— State game count is bad for duplicity.— V. Carragin, 210 Mo. 351, 16 People v. Van Alstine, 57 Mich. L. R. A. (N. S.) 561, 109 S. W. 69, 6 Am. Cr. Rep. 272, 23 N. W. 553. TEX.— Carr v. State, 36 Tex. 594. Cr. Rep. 3, 34 S. W. 949; Pitts v. And an indictment charging, in State, 40 Tex. Cr. Rep. 667, 51 one count, forgery and uttering S. W. 906. VA. — Johnson v. Com., forged instrument, is bad. — Mes- 102 Va, 927, 46 S. E. 789. FED.- ser v. Com., 26 Ky. L. Rep. 40, United States v. Carpenter, 81 80 S. W. 489. 964 CRIMINAL PROCEDUEB. §696 in the perpetration of the same offense.* Where the lat- ter doctrine prevails, an indictment or information charg- ing, in one count, the forgery and uttering or passing of the forged instrument, is not bad for duplicity,^ although there is authority to the effect that charging, in one count, the uttering of a check, knowing it to have been forged, and the forging of the indorsement thereon and then ut- tering the same, is bad for duplicity.* Under such stat- utes, duplicity can not be charged against an indictment or information alleging forging of an instrument, in one 2 See, supra, § 694. 3 State V. Swensen, 13 Ida. 1, 81 Pac. 379; Selby v. State, 161 lad. 667, 69 N. B. 463; State v. Lee- klns, 81 Neb. 280, 115 N. W. 1080; Com. V. Hall, 23 Pa. Sup. Ct. Rep. 104. An indictment charging the of- fense of uttering and publishing forged and counterfeit promissory notes, knowing them to be such, describing them as "sundry false, forged and counterfeit promissory notes," by describing them as five bank-notes of the Hamilton Bank In the state of Rhode Island, held not to charge various offenses in one count. — Com. v. Thomas, 76 Mass. (10 Gray) 483. An allegation in an indictment for forgery, in a single count, of all of a series of acts named in the statute, either of which would constitute the crime of forgery, is not an allegation of two offenses, because a 1 1 constitute but the single crime of forgery under § 470 Cal. Pen. Code. — People v. Harrold, 84 Cal. 567, 24 Pac. 106, following People V. Frank, 28 Cal. 507; Peo- ple V. De la Guerra, 31 Cal. 459. An indictment charging that ac- cused forged an Indorsement on a draft, and that it was afterwards indorsed by other persons, and that after the true indorsements, the accused uttered it, does not charge two offenses. — People v. Frank, 28 Cal. 507. An indictment for forgery which charges the accused, in the same count, with having forged an in- dorsement on a draft and also with having uttered and passed the draft knowing the forged in- dorsement to have been written thereon, does not charge two of- fenses. — People v. Prank, 28 Cal. 507. Compare: Wells v. Territory, 1 Okla. Cr. 469, 98 Pac. 483. "Where making and uttering of a fictitious instrument Is one con- tinuous transaction, they may properly be charged in one count as a single offense." — Wells v. Territory, 1 Okla. Cr. 469, 98 Pac. 483, citing People v. Dole, 122 Cal. 486, 68 Am. St. Rep. 50, 55 Pac. 581; Selby v. State, 161 Ind. 667, 69 N. E. 463, and State v. Green- wood, 76 Minn. 207, 78 N. W. 1044, 1117. 4 Wells V. Territory, 1 Okla. Cr. 469, 98 Pac. 483. Compare: People v. Frank, 28 Cal. 507. §696 FORGERY. 965 count, and the uttering of it in another count. "^ Forging and uttering being distinct offenses, an indictment or in- formation charging Both in the same count, is bad for du- plicity,* although there is authority to the contrary.'' Thus, where an indictment charging forgery sets forth, in one count, two distinct offenses requiring different pun- ishment — e. g., forgery of a mortgage, and forgery of a receipt indorsed thereon — the indictment will be bad for duplicity.* 5 People V. Driggs, 12 Cal. App. 240, 108 Pac. 62; reversed on other grounds, 14 Cal. App. 507, 112 Pac. 577. Indictment charging forgery of an instrument, in one count, and charging the utterance of the forged Instrument in another count, without sufficient allega- tions to charge the crime of utter- ing, the last count must be disre- garded. — State V. Mitten, 36 Mont. 376, 92 Pac. 969. 6 ARK. — McClellan v. State, 32 Ark. 609. CAL. — People v. Har- rold, 84 Cal. 567, 24 Pac. 106; People V. Mitchell, 92 Cal. 690, 28 Pac. 597; People v. Smith, 103 Cal. 563, 37 Pac. 516. GA.— Lascelles v. State, 90 Ga. 347, 16 S. E. 945. ILL.— Parker v. People, 97 111. 32. LA.— State v. Hahn, 38 La. Ann. 169; State v. Clement, 42 La. Ann. 583, 7 So. 685. MICH.— People V. Van Alstine, 57 Mich. 74, 6 Am. Cr. Rep. 272, 23 N. W. 594; People V. Parker, 67 Mich. 222, 34 N. W. 720. MO. — State v. Jackson, 89 Mo. 561, 1 S. W. 760. MONT.— Territory v. Poulier, 8 Mont. 146, 19 Pac. 594. NEB. — In re Walsh, 37 Neb. 454, 55 N. W. 1075. N. Y. — People v. Tower, 135 N. Y. 457, 10 N. Y. Cr. Rep. 229, 32 N. E. . 145, affirming 10 N. Y. Cr. Rep. 95, 17 N. Y. Supp. 395. N. C— State V. Keeter, 80 N. C. 472. S. C— State V. Houseal, 2 Brev. 219. TENN. — Foute v. State, 83 Tenn. (15 Lea) 712. TEX. — Lovejoy v. State, 40 Tex. Cr. Rep. 89, 48 S. W. 520. VT.— State v. Morton, 27 Vt. 310, 65 Am. Dec. 201. VA.— Ras- nick V. Com., 4 Va. (2 Va. Cas.) 356. E^D. — ^In re Adutt, 55 Fed. 376. A count charging the forgery of a deed and also the uttering of the forged deed is bad for duplicity. — People V. Van Alstine, 57 Mich. 69, 6 Am. Cr. Rep. 272, 23 N. W. 594. 7 Nalley v. State, 11 Ga. App. 15, 74 S. E. 567; State v. Klug- herz, 91 Minn. 406, 1 Ann. Cas. 307, 98 N. W. 99; State v. Leekins, 81 Neb. 280, 115 N. W. 1080, hold- ing that where the acts are done by the same person they consti- tute but one offense. The forging, procuring, or caus- ing to be forged and aiding in forging are not only the same offense under the statute, but in legal contemplation the same act, so that an indictment so charging is not duplicitous. — State v. Mor- ton, 27 Vt. 310, 65 Am. Dec. 201. 8 People V. Wright, 9 Wend. 193. 966 CRIMINAL PEOCEDUEB. § 697 Generally speaking, an indictment or information charging forgery, wMcli sets out two acts constituting the same offense, is not open to charge of duplicity.® Thus, charging in the same count the forging of a "check or bill of exchange," is not open to the objection of du- plicity, the terms being synonymous •,^° and charging the various acts enumerated in the statute, any one or all of which may constitute forgery, these acts being set out in the disjunctive in the statute, an indictment charging in the language of the statute, except that they are pleaded in the conjunctive, will not render the instru- ment open to the objection of duplicity.^^ § 697. Remedies for misjoinder. In those cases where there is a misjoinder, under the rule of the particu- lar jurisdiction, the accused must interpose timely objec- tion, either by demurrer,^ motion to quash,^ or motion to require the prosecution to elect,' it being too late to avail 9 state V. Gates, 99 Me. 68, 58 tage of by demurrer. — ^People v. Atl. 238; State v. Hastings, 53 Shotwell, 27 Gal. 394. N. H. 452. 2 State v. Clement, 42 La. Ann. 10 State T. Maas, 37 La. Ann. 583, 7 So. 685. 292. 3 People v. Shotwell, 27 Gal. As to describing a check as a 394; State v. Clement, 42 La. Ann. "bill of excliange" or "an order 583, 7 So. 685; Van Sickle v. Peo- for money," see, supra, § 676, foot- pie, 29 Mich. 61; People v. Kemp, note 16. 76 Mich. 410, 43 N. W. 439; Will- 11 Hobbs V. State, 133 Ind. 404, iams v. State, 24 Tex. App. 342, 8 L. R. A. 774, 32 N. E. 1019; 6 S. W. 531. Rosenbarger v. State, 154 Ind. 425, Where an indictment charging 56 N. E. 914; Selby v. State, 161 forgery contains more than one Ind. 667, 69 N. E. 463. count, each count charging a dis- 1 People V. Shotwell, 27 Cal. tinct offense, the court is not re- 394; State V. Wood, 13 Minn. 121; quired to compel the prosecutor People V. Tower, 135 N. Y. 457, to elect upon which count of the 10 N. Y. Gr. Rep. 229, 32 N. E. 145, indictment he will try the ac- affirming 10 N. Y. Gr. Rep. 95, oused. — People v. Shotwell, 27 Cal. 17 N. Y. Supp. 395. 394. Where there is more than one Where the indictment. In two offense charged in the indictment, counts, charged in one the forging the defect should be taken advan- of a draft and in the other the §697 FORGERY. 967 himself of the error after verdict,* as it will not be con- sidered on a motion in arrest of judgment.^ Election: The general rule is that where offenses com- mitted by the same act, at the same time, are joined in dif- ferent counts, the accused can not be confounded in mak- ing his defense, and the people ought not to be compelled to elect between counts.^ uttering and publishing thereof aa true it is a matter of discretion with the trial court whether or not it will require the prosecution to elect on which count he will proceed to trial — Miller v. State, 51 Ind. 405, 1 Am. Cr. Rep. 230. Forgery and uttering forged in- strument being joined in the same indictment, prosecution can not be compelled to elect on which count it will proceed to trial, or go to the jury. — State v. Carragin, 210 Mo. 351, 16 L. R. A. (N. S.) 561, 109 S. W. 553. 4 State V. Clement, 42 La. Ann. 583, 7 So. 685. An indictment charging forging an order directed to a savings bank, containing two counts, in one of which was alleged an in- tent to defraud the bank, and in the other count, the allegation was of an intent to defraud the depositor whose name was forged, on which a general verdict of guilty was rendered, it was held that an entry of a nolle prosequi as to the first count, after the ver- dict, did not invalidate the pro- ceedings. — Rounds V. State, 78 Me. 42, 6 Am. Cr. Rep. 266, 2 Atl. 673. 5 People V. Shotwell, 27 Cal. 394. estate v. Shaffer, 59 Iowa 290, 4 Am. Cr. Rep. 83, 13 N. W. 306; Com. V. Miller, 107 Pa. St. 276, 5 Am. Cr. Rep. 299. As to election not being re- quired, see, supra, § 694, foot- note 2; § 695, footnotes 12 and 13. CHAPTEE XLVIII. INDICTMENT — SPECIFIC CBIMES. Fornication. § 698. Form and suiBcieney of indictment. § 699. Particular allegations — As to marriage. §700. As to time. § 701. As to guilty intent. § 702. Living together — Cohabitation. § 703. Description of parties. § 704. Joinder of offenses. § 705. Joinder of parties. § 706. Joinder of counts. § 707. Duplicity and election. § 698. FOEM AND SUFFICIENCY OF INDICTMENT.* InaSmUch as the crime of fornication is purely a statutory offense,^ it is sufficient for an indictment or information to charge the alleged offense in the language of the statute denounc- ing it,* or substantially in that language,* where the stat- ute contains all the elements of the offense.* The crime 1 As to forms of indictment, see * ALA. — Pace v. State, 69 Ala. Forms Nos. 765, 1817. 231, 44 Am. Rep. 513; affirmed, 106 2 Fornication was not Indictable U. S. 583, 27 L. Ed. 207, 1 Sup. Ct. at common law, although the of- Rep. 637. GA. — Cook v. State, 11 tense was contra bonus moris, Ga. 53, 56 Am. Dec 410. IND. — unless committed so openly as to State v. Johnson, 69 Ind. 85; State be a public nuisance. In which v. Chandler, 96 Ind. 591; State v. case It was indictable as a nui- Smith, 18 Ind. App. 179, 47 N. B. sance, not as fornication. — Carotti 685. MONT. — Territory v. Corbett, V. State, 42 Miss. 334, 97 Am. Dec. 3 Mont. 50. N. C— State v. Fore, 465; Anderson v. Com., 26 Va. (5 23 N. C. (1 Ired. L.) 378; State v. Rand.) 627, 16 Am. Dec. 776; Com. Lyerly, 52 N. C. (7 Jones L.) 158; V. Isaacs, 26 Va. (5 Rand.) 634; State v. Tally, 74 N. C. 322. PA.— State V. Foster, 21 W. Va. 767. Gorman v. Com., 124 Pa. St. 536, 3 Cook V. State, 11 Ga. 53, 56 17 Atl. 26. UTAH— People v. Col- Am. Dec. 410; State v. Chandler, ton, 2 Utah 458. 96 Ind. 591 ; Cannedy v. State,' 58 5 ARK. — Grouse v. State, 16 Ark. Tex. Cr. Rep. 184, 125 S. W. 31. 566. GA.- Bigby v. State, 44 Ga. (968) § 698 POENiCATioN. 969 need not be designated by the statutory name wbere the criminal acts are set out.* It has been said that the offense is sufficiently described by charging an unlawful "bedding and cohabiting" together;'' but this is an obiter holding, only, in the case, and it is thought that some- thing further must be alleged under most, if not all, the present statutes.* It is held in some cases that the act constituting the offense need not be stated.' The allega- tions must in all cases be sufficiently full and precise to cover every element under the terms of the statute under which the indictment or information is drawn ; that is to say, the particular requirements of the statute under which drawn, must be fully complied with. Thus, the stat- ute prohibiting a man and woman, being unmarried to each other, from living together as husband and wife, an indictment or information simply charging that a named woman accused "did bed to, and live with" a named man, is insufficient ;^" and where the statute requires that both parties shall be, at the time of the act complained of, single or unmarried, the indictment must state that both parties, at the time of the illicit intercourse, were unmar- 344; Bennett v. State, 103 Ga. 66, 7 See discussion, infra, § 702. 68 Am. St. Rep. 77, 29 S. E. 919. 8 State v. Jolly, 20 N. C. (3 Dev. IND.— State T. Stephens, 63 Ind. & B. L.) 110, 32 Am. Dec. 656. 542. N. C. — State v. Cox, 4 N. C. oALA. — Pace v. State, 69 Ala. (Term Rep. 165) 597. TEX.— 231, 44 Am. Rep. 513; affirmed, 106 Jones V. State, 29 Tex. App. 347, U. S. 583, 27 L. Ed. 207, 1 Sup. Ct 16 S. W. 189 ; Cosgrove v. State, 37 Rep. 637. IND.— Robinson v. State, Tex. Cr. Rep. 249, 66 Am. St. Rep. 51 Ind. 113; Hood v. State, 56 Ind. 802, 39 S. W. 367. VA.— Anderson 263, 26 Am. Rep. 21; State v. John- V. Com., 26 Va. (5 Rand.) 627, son, 69 Ind. 85; State v. Chandler, 16 Am. Dec. 776; Com. v. Isaacs, 96 Ind. 591. N. C. — State v. Lyerly, 26 Va. (5 Rand.) 634. WIS.— State 52 N.C. (7 Jones L.) 158; State v. V. Shear, 51 Wis. 460, 8 N. W. 287. Tally, 74 N. C. 322. VA.— Scott v. 6 Alexander v. State, 122 Ga. Com., 77 Va. 344. 174, 50 S. E. 56. Charge that the defendants, a Charging living together in for- man and woman, "did live to- nlcation is sufficient without set- gether In fornication" is sufficient, ting out the acts constituting the — Lawson v. State, 20 Ala. 65, 56 offense. — Lawson v. State, 20 Ala. Am. Dec. 182. 65, 56 Am, Dec. 182. lo Crouse v. State, 16 Ark. 566. 970 CRIMINAL PROCEDUKB. § 699 ried to each other, and the prosecution must prove this allegation to he a fact/'^ although there are cases to the contrary.^2 The statute defining "fornication" as "the living together and carnal intercourse with each other, or habitual carnal intercourse without living together, of a man and woman both being unmarried, ' ' an indictment or infonnation which fails to follow the language of the statute, but merely charges habitual carnal intercourse, is insufficient.^* Surplusage, under the general rule of criminal plead- ing in this as in other crimes, will be disregarded. Thus, where the indictment or information charges the com- mission of the alleged offense on a designated date ' ' and on divers other days and times, before and after that day," these added words may be rejected as surplusage.^* And the same is true of other like unnecessary allega- tions.i^ § 699. Paeticttlab AiiLEOATioNS — ^As TO MARRIAGE. There is an irreconcilable conflict in the adjudicated cases as to whether an indictment or information charging forni- cation shall contain allegations as to marriage of the par- ties to another, or to each other. This conflict is due to two causes : (1) The diversity in the statutory provisions 11 Bennett v. State, 103 Ga. 66, 15 "The crime of fornication" 68 Am. St. Rep. 77, 29 S. E. 919, being charged in the indictment, distinguishing Hopper v. State, 54 there being no such crime pro- Ga. 389; Kendrick v. State, 100 Ga. ^j^ig^ j^^ „j. designated in the stat- 360, 28 S. B. 120; Cosgrove v. ^^^ prohibiting and punishing State, 37 Tex. Cr. Rep. 249, 66 fornication and adultery between persons within a specified degree Am. St. Rep. 802, 39 S. W. 367. 12 See discussion, infra, § 699. 13 Cannedy v. State, 58 Tex. Cr. «* consanguinity, does not vitiate Rep 184 125 S. W. 31. *^® indictment or information, 14 Cook V. State, 11 Ga. 53, 56 where it is otherwise sufiicient to Am. Dec. 410. See Shelton v. State, charge the offense under the stat- 1 Stew. & P. (Ala.) 208; McLane ute, under the ru?e that unneces- V. State, 4 Ga. 341; State v. G. S., sary allegations will be disre- 1 Tyl. (Vt.) 295, 4 Am. Dec. 724; garded. — Territory v. Corbett, 3 Gallagher v. State, 26 Wis. 425. Mont. 50. §700 FOENICATION. 971 relating to and punishing the offense, and (2) the diver- sity of definition and opinion as to the true meaning of the word "fornication." The safer and better course on the part of the pleader is thought to be to allege facts negativing the marriage of the parties to each other,^ and where the offense, under the statute, is punishable only when committed by an unmarried woman, the fact that she was unmarried should be alleged;^ although there are well reasoned cases to the effect that this alle- gation is unnecessary, as being a matter of defense,^ the contention being that the charge of fornication raises the necessary presumption that the woman was unmarried, and that, consequently, the prosecution is not required either to allege or prove that fact.* — As TO TIME. The indictment or information §700. - should allege a particular day upon which the act com- 1 state V. Dickinson, 18 N. C. 349. See, also, authorities cited supra, § 698, footnote 10. Under a statute defining forni- cation as "habitual [carnal] inter- course with each other, of a man and woman, both being unmar- ried," an indictment omitting to allege "both being unmarried" would be fatally defective. — Cos- grove V. State, 37 Tex. Cr. Rep. 249, 66 Am. Cr. Rep. 802, 39 S. W. 367. Teacher charged with sexual in- tercourse with pupil, under Ohio Rev. Stats., § 7024, it is unneces- sary to aver that they were not husband and wife. — Easley v. State, 29 Ohio Cir. Ct. Rep. 568. 2 GA. — Bennett v. State, 103 Ga. 66, 68 Am. St. Rep. 77, 29 S. E. 919. MASS.— Com. v. Murphy, 84 Mass. (2 Allen) 163. TEX.— Cos- grove V. State, 37 Tex. Cr. Rep. 249, 66 Am. St Rep. 802, 39 S. W. 367. VT.— State v. Searle, 56 Vt. 516. .The allegation that "neither of the said persons being then and there lawfully married to another person then living" sufRciently charges that they were unmarried. — Stebbins v. State, 31 Tex. Cr. Rep. 294, 20 S. W. 552. Fornication is sexual inter- course by an unmarried woman with any man. — Hood v. State, 56 Ind. 263, 26 Am. Rep. 21. 3 State V. Stephens, 63 Ind. 542; State V. Sharp, 75 N. J. L. 201, 66 Atl. 926; affirmed, 70 Atl. 1012. The law then throws the burden of showing marriage upon the accused. — State v. McDuffie, 107 N. C. 885, 12 S. E. 83; State v. Peeples, 108 N. C. 769, 13 S. E. 8; State V. Cutshall, 109 N. C. 764, 26 Am. St. Rep. 599, 14 S. E. 107. i Gaunt V. State, 50 N. J. L. 490, 14 AU. 600. 972 CRIMINAIi PEOCEDUBE. § 701 plained of was cominitted, and this will be sufficient,^ it not being necessary to allege that the offense was a con- tinuing one,^ and where it is alleged to have been a con- tinuing offense, the continuando may be rejected as sur- plusage.^ Time of the offense may be laid on any date before the finding and return of the indictment, or the presentation of the information, and within the period of limitation,* dating back from the date of the finding of the bill, or the presenting of the information.^ The fact that the indictment or information charges a differ- ent time from that in the affidavit upon which founded — e. g., charges a specific day, and the affidavit charges a continuing offense between two dates named — will not vitiate the instrument.® § 701. As TO GUILTY INTENT. In f omicatiou, guilty intent need be neither alleged nor proved,^ because guilty intent in such an offense, in the very nature of things, can not be shown except as such intent is established by 1 Cook V. state, 11 6a. 53, 56 4 See Com. v. Burke, 3 Lane. L. Am. Dec 410; Bridges v. State, Rev. (Pa.) 138. 103 Ga. 21, 29 S. E. 859; Com. v. Failure to allege offense com- Calef, 10 Mass. 153; HInson v. mitted within the preceding twelve State, 7 Mo. 244. months, held not to render the aCharging commencement of indictment demurrable. — ^Jolley v. crime before statute in effect, with state, 5 Ala. App. 135, 59 So. 710. continuando clause carrying it to ^ ^^^^ ^ ^^^^^^ ^^ ^^ 53_ 5g a day beyond the time when it ^^ ^^^ ^^^ g^^ gj^^^^^^ ^ g^^^^^ took effect, indictment held to be ^ g^^^ ^^ p (^,^ ^ gOS; McLane sufficient.-Nichols' Case, 47 Va. ^ g^^^^^ ^ ^^ g^^. g,.^^^ ^ (, g^ (7 Gratt.) 589. ^ rpyj (y^ ■, 295, 4 Am. Dec. 724; 3 GA.-Cook V. State, 11 Ga. 53, ^.^^^^^. ^^^^^ ^r, y^ (7 g^att.) 56 Am. Dec. 410. N. H.— State v. ggg Nichols, 58 N. H. 41. UTAH— State V. Thompson, 31 Utah 228, 6 State V. Record, 16 Ind. 111. 87 Pac. 709. WIS.— Gallagher v. 1 State v. Cutshall, 109 N. C. State, 26 Wis. 423. FED.— United '64, 26 Am. St Rep. 599, 14 S. E. States V. La Coste, 2 Mas. C. C. '^^^■ 129, 140 Fed. Cas. No. 15548. Habitual sexual intercourse ENG. — ^R. V. Sadi, 1 Leach C. C. shown, the crime is established. — 468; E, V. Redman, 1 Leach C. C. State v. Cutshall, 109 N. C. 764, 477. 26 Am. St. Rep. 599, 14 S. E. 107. § 702 FOENICATION. 973 habitually engaging in unlawful sexual intercourse by tbe parties charged. If the prosecution must show guilt be- yond the intent to do the act, the parties not being married to each other, those who live in habitual sexual intercourse believing it to be lawful, as Mormons, free- lovers, and the like, would be free from prosecution for this violation of the penal statutes.* Fornication, like adultery, is a joint physical act, but there need not be a joint criminal intent; the bodies must concur in the act, but not necessarily the minds. While the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party ; that is to say, one may be guilty and the other in- nocent by reason of insanity, fraud, mistake, and the like ; but the innocence of one party wiU not relieve the party with the guilty intent.' § 702. Living together — Cohabitation. Where, in the statutory definition of fornication, living together and cohabitation is an essential element, it is manifestly somewhat difficult to state the composite facts constitut- ing the offense, and for this reason it has been said to be sufficient simply to charge living together in fornication.^ We have already seen that the obiter holding, maintain- ing that the simple allegation of an unlawful "bedding and cohabiting together" is a sufficient description of the offense, does not seem to meet the requirements, and for that reason is insufficient,* because the weight of author- ity is to the effect that to constitute cohabitation, in the sense in which it is used in the statute, a man and a woman, not being married to each other, must live or dwell 2 state V. Cutshall, 109 N. C. 764, State, 21 Tex. App. 344, 17 S. W. 26 Am. St. Rep. 599, 14 S. B. 107, 427. distinguishing and doubting State i Lawson v. State, 20 Ala. 65, V. Mainor, 28 N. C. (6 Ired. L.) 56 Am. Dec. 182. 340. The acts constituting the offense 3 State V. Cutshall, supra. See need not be stated. See, supra, Alonzo V. State, 15 Tex. App. 378, § 698, footnote 8. 49 Am. Rep. 207; Ledbetter v. 2 See, supra, § 698. 974 CEIMIlSrAL PEOCEDUEE. §702 together as husband and wife and indulge in illicit inter- course;* it will not embrace occasional acts of illicit in- tercourse — e. g., as between master and servant dwelling together as such in the same house* — ^because this does not constitute a "living together" or "cohabitation" in the sense in which those phrases are used in such statute.^ 3 ARK. — Sullivan v. State, 33 Ark. 187; Turney v. State, 60 Ark. 259, 29 S. W. 893; McNeely v. State, 84 Ark. 484, 106 S. W. 674. FLA.— Luster v. State, 23 Fla. 339, 2 So. 690; Pinson v. State, 28 Fla. 735, 9 So. 706; Thomas v. State, 39 Fla. 437, 22 So. 725; Penton v. State, 42 Fla. 560, 28 So. 774; Whitehead v. State, 48 Fla. 64, 37 So. 302. IND.— State v. Chandler, 96 Ind. 591; Jackson v. State, 116 Ind. 464, 19 N. E. 330; Van Dolsen V. State, 1 Ind. App. 108, 27 S. E. 440. IOWA— State v. Marvin, 12 Iowa 499. KAN.^State v. Cassida, 67 Kan. 171, 72 Pac. 522. MASS.— Com. V. Calef, 10 Mass. 153. MINN. — State v. Williams, 94 Minn. 319, 102 N. W. 722. MISS.— Carotti v. State, 42 Miss. 334, 97 Am. Deo. 465; Kinard v. State, 57 Miss. 132; Cranberry v. State, 61 Miss. 440. MO.— State v. Sekrlt, 130 Mo. 401, 32 S. W. 977; State V. Chandler, 132 Mo. 155, 53 Am. St. Rep. 483, 53 S. W. 797; State v. Osborne, 39 Mo. App. 372; State v. Dashman, 124 Mo. App. 238, 101 S. W. 597. NEB.— State v. Way, 5 Neb. 283; Sweenie v. State, 59 Neb. 269, 80 N. W. 815. PA.— Yardley's Estate, 75 Pa. St. 207. TEX. — Richardson v. State, 37 Tex. 346.- VA.— Jones v. Com., 80 Va. 18. W. VA.— State v. Miller, 42 W. Va. 215, 24 S. E. 882; State v. White, 66 W. Va. 45, 66 S. E. 20. FED. — Cannon v. United States, 116 U. S. 55, 29 L. Ed. 561, 6 Sup. Ct. Rep. 278, affirming 4 Utah 122, 7 Pac. 369. 4 Living togetlier in same house as master and servant, and not as husband and wife, occasional clan- destine sexual intercourse does not constitute the statutory of- fense of "living together in un- lawful cohabitation." — Richey v. State, 172 Ind. 134, 139 Am. St. Rep. 362, 19 Ann. Cas. 654, 87 N. E. 1032; Carotti v. State, 42 Miss. 334, 97 Am. Deo. 465, citing Searls V. People, 13 111. 597; Wright v. State, 5 Blackf. (Ind.) 358, 35 Am. Deo. 126; State v. Marvin, 12 Iowa 499; Com. v. Calef, 10 Mass. 153; State V. Jolly, 3 Dev. & B. L. (S. C.) 110, 32 Am. Dec. 656. Two clandestine acts of inter- course between a married man and his servant girl, held not to constitute fornication. — Richey v. State, 172 Ind. 134, 139 Am. St. Rep. 362, 19 Ann. Cas. 654, 87 N. E. 1032. 6 ALA. — State v. Smith, 39 Ala. 554; Quartemas v. State, 48 Ala. 269; Hall v. State, 53 Ala. 463; Bodiford v. State, 86 Ala. 67, 11 Am. St. Rep. 20, 5 So. 559. ARK.— Grouse v. State, 16 Ark. 566; Tur- ney V. State, 60 Ark. 259, 29 S. W. 893. FLA.— Brevaldo v. State, 21 Ma. 789; Luster v. State, 23 Fla. 339, 2 So. 690; Thomas v. State, 39 Fla. 560, 28 So. 774. GA.— Mc- Leland v. State, 25 Ga. 477; Law- §702 FORNICATION. 975 However, it has been held, under some statutes, that liv- ing together as husband and wife for a single day consti- son V. state, 116 Ga. 571, 42 S. E. 752; Winkles V. State, 4 Ga. App. 559, 61 S. E. 1128. ILL.— Searls v. People, 13 111. 597; Miner v. Peo- ple, 58 ni. 59. IND.— Wright v. State, 5 Blackf. 358, 35 Am. Dec. 126; State v. Gartrell, 14 Ind. 280; Gaylor v. McHenry, 15 Ind. 383; Jackson v. State, 116 Ind. 464, 19 N. E. 330. IOWA— State v. Mar- vin, 12 Iowa 499 ; State v. Kirkpat- rick, 63 Iowa 554, 19 N. W. 660; State v. McDavitt, 140 Iowa 342, 132 Am. St. Rep. 275, 118 N. W. 370. KAN.— State v. Cassida, 67 Kan. 171, 72 Pac. 522. MASS.— Com. V. Calef, 10 Mass. 153; Com. V. Lambert, 94 Mass. (12 Allen) 177. MICH.— Delany v. People, 10 Mich. 241. MINN.— State v. Will- iams, 94 Minn. 319, 102 N. W. 722. MISS.— Carotti v. State, 42 Miss. 334, 97 Am. Dec. 465; Newman v. State, 69 Miss. 393, 10 So. 580; ScUwall V. State, 21 So. 660. MO.— State V. Crowner, 56 Mo. 147; State V. West, 84 Mo. 440; State V. Coffee, 39 Mo. App. 56; State v. Osborne, 39 Mo. App. 372. NEB. — Sweenie v. State, 59 Neb. 269, 80 N. W. 815. N. C— State v. Jolly, 20 N. C. (3 Dev. & B. L.) 108, 32 Am. Dec 656. TEX. — Richard- son V. State, 37 Tex. 346; Swan- coat V. State, 4 Tex. App. 105; Parks V. State, 4 Tex. App. 134; Morrill v. State, 5 Tex. App. 447; Mitten v. State, 24 Tex. App. 346, 6 S. W. 196. VA. — Jones v. Com., 80 Va. 18; Pruner v. Com., 82 Va. 115. WASH.— State v. Poyner, 57 Wash. 489, 107 Pac. 181. W. VA.— State V. Miller, 42 W. Va. 215, 24 S. E. 882. A single act, or occasional acts, not indicating a consecutive or prearranged continuation of the illicit intercourse, does not consti- tute living together within the statute. — Bodiford v. State, 86 Ala. 67, 11 Am. St. Rep. 20, 5 So. 559, citing State, v. Crowley, 13 Ala. 172; Collins v. State, 14 Ala. 608; Quartemas v. State, 48 Ala. 269; Hall v. State, 53 Ala. 463. The commission of such acts must have been under such cir- cumstances as to show an abiding and cohabiting together in a rela- tionship like that of husband and wife. — State v. Cassida, 67 Kan. 171, 72 Pac. 522. They must have lived together in the same habitation as husband and wife. — State v. Chandler, 132 Mo. 155, 53 Am. St. Rep. 483, 53 S. W. 797. There must be a living together as if the conjugal relation existed, and the illicit intercourse must be habitual, but it is not necessary that the acts be open and noto- rious, or that the parties hold themselves out to the public as husband and wife. — State v. Poy- ner, 57 Wash. 489, 107 Pac. 181. Clandestine acts of sexual In- tercourse, however often repeated, do not constitute unlawful cohabi- tation, unless the parties openly and notoriously live together as paramour and concubine. — Klnard V. State! 57 Miss. 134. See Wright V. State, 5 Blackf. (Ind.) 358, 35 Am. Dec. 126; State v. Gartrell, 14 Ind. 280; Gaylor v. McHenry, 15 Ind. 383. Clandestine sexual intercourse between a man and woman, not married to each other, though 976 CRIMINAL PROCEDURE. § 703 tutes the act of fornication.* Where, under the statute, habitual carnal intercourse, without living together, con- stitutes fornication, an indictment or information alleg- ing habitual intercourse, but omitting the statutory words "without living together," will be sufficient,'' because those words do not enter into the definition of the offense, being merely descriptive of the parties.* § 703. Description of parties. An indictment or infor- mation charging fornication must so describe the parties as to bring them within the provisions of the particular statute under which the instrument is drawn. Thus, where under the statute the crime can be committed by a married man with an unmarried woman only, these facts must be distinctly alleged.^ An indictment or information charging fornication which describes one of the persons accused as an unmarried male, and the other as an un- married female, is not open to the objection that it does not allege that one of the parties is a man and the other a woman f and a like charge that two named persons did married to others, Is not sufllcieiit. for mutual Bexual gratification ■ — state V. Chandler, 132 Mo. 155, constitutes fornication. — Com. v. 53 Am. St. Rep. 483, 33 S. W. 797. Lehr, 2 Pa. Co. Ct. Rep. 341, 18 Illicit intercourse between Phila. 485, 43 Phila. Leg. Int. 425. teacher and pupil on a few occa- ^ gt^tg y Schroder, 3 Hill L. sions. In school room, after school (g c ^ 54. gta,te v. Cunningham^ hours, does not constitute the 2 Spears (S. C.) 254. ofllense denounced by statute. — Granberry v. State, 61 Miss. 400. Habitual sexual intercourse is the gist of the offense. — Newman V. State, 69 Miss. 393, 10 So. 580. Occasional secret acts of illicit Fornication is sexual intercourse sexual intercourse are not suffl- of an unmarried woman with any cient.— Thomas v. State, 39 Fla. man.— Hood v. State, 56 Ind. 263, 437, 22 So. 725; State v. Miller, 26 Am. Rep. 21. 42 W. Va. 215, 24 S. E. 882. 2 Townser v. State, 58 Tex. Cr. 6 Brown v. State, 108 Ala. 18, Rep. 453, 137 Am. St. Rep. 976, 18 So. 811. 126 S. W. 572. See Tynes v. State, 7 State V. Carroll, 30 S. C. 85, 93 Miss. 119, 136 Am. St. Rep. 540, 14 Am. St. Rep. 883, 8 S. E. 433. 46 So. 536; State t. Lashley, 84 Habitual surrender of person N. C. 754. 1 Hood V. State, 56 Ind. 263, 26 Am. Rep. 21; State v. Lash, 16 N. J. L. (1 Harr.) 380, 32 Am. Dec. 397. § '^04 FORNICATION. 977 "unlawfully cohabit together, and have sexual inter- course with each other," they "not being married to each other," is not open to the objection that it does not allege them to be a man and a woman, for this presumption necessarily follows.* The fact that the indictment or in- formation described the woman as a " spinster ' ' whereas the evidence shows her to have been married, is not ground for an arrest of judgment;* charging that Sam Means had sexual intercourse with Frances Slayton, and that Sam Means was a man "and the Slayton an un- married woman," the words "the Slayton" were held to obviously refer to the above mentioned Frances Slay- ton.^ Where an indictment charging a man with forni- cation alleged that the name of the woman was unknown, this will not render the instrument insufficient." Under the Texas statute, it seems that an indictment charging fornication which fails to allege that both parties to the offense were immarried, is fatally defective.'^ § 704. JoiNDEK OF OFFENSES. It has been said that as fornication is an essential fact constituting crimes aris- ing out of illicit carnal connection, and is included within them,^ consequently, that in an indictment charging seduction accused may be convicted of fornication,^ upon the well recognized principle that there may be a con- viction for a lesser under an indictment for a greater 3 Tynes v. State, 93 Miss. 119, iDinkey v. Com., 17 Pa. St. 126, 136 Am. St. Rep. 540, 46 So. 535. 55 Am. Dec. 542. 4 State V. Guest. 100 N. C. 410, =* dinkey v. Com., 17 Pa. St. 126, 6 S E 253 ^^ *""■ °*'^" ^^^' ^®® *^°™" ^• ■ ■ ■ Miller, 4 Phila. (Pa.) 214; Com. v. B Means v. State, 99 Ga. 205, rpaiand, 14 Phila. (Pa.) 435. 25 S. E. 682. • Acquittal under Indictment for 6 Jolley V. State, 5 Ala. App. 135, seduction is a bar to a subse- 59 So. 710. quent indictment for fornication. — ■ 7 Cosgrove v. State, 37 Tex. Cr. Dinkey v. Com., 17 Pa. St. 126, Rep. 249, 66 Am. St. Rep. 802, 39 55 Am. Dec. 542; Nicholson v. S. W. 367. Com., 91 Pa. St. 390. I. Crim. Proo. — 62 978 CRIMINAL PEOCEDUEE. §705, offense,* although there are authorities to the contrary.* On a like reasoning it is held, in some jurisdictions, to be a well-settled rule of criminal procedure that on an indictment for adultery, with proper allegations, a con- viction can be had, under appropriate evidence, for for- nication. The question is said not to be whether one offense includes the other, but simply one of allegation, and that if all the necessary elements to constitute for- nication are charged in the indictment or information, a conviction of that crime may be had,® although there are cases to the contrary.® § 705. Joinder of pabties. The question whether an in- dictment or information charging fornication shall join both the accused as defendants in one indictment, or whether they shall be proceeded against in separate in- dictments, is in some jurisdictions a matter of statu- tory regulation. Under some statutes the accused are required to be indicted severally.^ Where there are no statutory regulations or requirements, the accused may be indicted separately,^ or jointly,* at the election of the prosecution; and it has been said that where they are jointly indicted under a charge of an unlawful "bed- ding and cohabiting together" the offense is sufficiently described, and the charge sustained by showing a ha- bitual surrender of the person of one for the gratifiea- 3 state V. Bierce, 27 Conn. 319; S. W. 367. See Smitherman v. Dinkey v. Com., 17 Pa. St. 126, State, 27 Ala. 23. 55 Am. Dec. 542; Com. v. David- 6 State v. Lash, 16 N. J. L. (1 heiser, 20 Pa. Co. Ct. 200; Com. v. Hair.) 380, 32 Am. Dec. 397; Pena Johnston, 12 Pa. Co. Ct. 216, 2 Pa. v. State, 46 Tex. Cr. 458, 80 S. W. Dist. Rep. 273; Gorman v. Com., 1014. 124 Pa. St. 536, 17 Atl. 26. i Foster v. State, 41 Ga. 582. "Seduce" implies the commission 2 State v. Cox, 4 N. C. 597. of fornication.— State v. Bierce, 27 3 Ledbetter v. State, 21 Tex. Conn. 319. App. 344, 17 S. W. 427. 4 State V. Lash, 16 N. J. L. (1 Com. v. Elwell, 43 Mass. (2 Harr.) 380, 32 Am. Dec. 397. Mete.) 190, 35 Am. Dec. 398; 6 Cosgrove v. State, 37 Tex. Cr. Alonzo v. State, 15 Tex. App. 378, Rep. 249, 66 Am. St. Rep. 802, 39 49 Am. Rep. 207. §706 FORNICATION. 979 tion of the other,* but this holding is purely obiter,^ and not thought to be sound.® § 706. JoiNDEB OF COUNTS. It is a well-settled principle of criminal pleading that where two or more crimes arising out of the same act or transaction are of a kin- dred nature and liable to punishment of the same gen- eral character, thej^ may all ^e joined, in several counts, in the same indictment,' although the doctrine does not prevail in some jurisdictions,^ and the contrary practice is required by statute in still other jurisdictions.^ On the principle that crimes of a kindred nature arising out of the same act or transaction may be united in the same indictment, an indictment or information charging fornication has been held to properly charge counts of fornication in connection with counts for abduction,* 4 state V. Jolly, 20 N. C. (3 Dev. & B. L.) 108, 32 Am. Dec. 656. 5 See, supra, § 698, footnote 8. 6 See discussion, supra, § 702. 1 Com. V. Mullen, 150 Mass. 394, 23 N. E. 51; Com. v. Rosenthal, 211 Mass. 50, Ann. Cas. 1913A, 1003, 97 N. E. 609. 2 State V. Johnson, 50 N. C. 221; State V. Watts, 82 N. C. 656; State V. Lee, 114 N..C. 844, 19 S. E. 375; Withers v. Com., 5 Serg. & R. (Pa.) 59. 3 Short V. People, 27 Colo. 175, 60 Pac. 350; Logen v. United States, 144 U. S. 263, 36 L. Ed. 429, 12 Sup. Ct. Rep. 617; Will- iams V. United States, 168 U. S. 382, 42 L. Ed. 509, 18 Sup. Ct. Rep. 92. 4 Com. V. Rosenthal, 211 Mass. 50, Ann. Cas. 1913A, 1003, 97 N. E. 609. Joinder of offenses. — "Illicit car- nal connection is called by differ- ent names, according to the cir- cumstances which attend it. Un- accompanied with any facts which tend to aggravate it, it is simple fornication. When it causes the birth of an illegitimate child, it is fornication and bastardy. When the man who commits It is mar- ried, it is adultery. When the par- ties by whom it is done are related to one another within certain de- grees of consanguinity or ' affinity, i it becomes incest. Where it is pre- ceded by fraudulent acts (includ- ing a promise of marriage) to gain the consent of the female, who Is under twenty-one years of age and of good repute, it assumes another name, and by the statute is called seduction. But the body of all these offenses is the illicit con- nection. In each case the essential fact which constitutes the crime is fornication." — Dinkey v. Com., 17 Pa. St. 126, 55 Am. Dec. 542. 980 CRIMINAL PROCEDURE. § 707 adultery," bastardy,' seduction,'' and rape,' these all being crimes of a kindred nature which may arise out of the same transaction. § 707. Duplicity and election. The joinder of different offenses in different counts, in the same indict- ment or information charging fornication, is subject to the general rules regarding duplicity. Under some stat- utes there may be a joinder, in one count, charging different kindred offenses of varying degrees — e. g., for- nication and bastardy,^ without being open to the ^ objection of duplicity. An indictment charging fornica- tion on a specified day and on "divers other days," will » not render it void for duplicity.^ Where several counts are joined embracing a statement of the crime in differ- ent forms, or crimes of kindred nature and varying de- grees of the same offense, the prosecution can not be compelled to elect upon which of the counts the trial will be had.^ 5 state V. Hinton, 6 Ala. 864; 7 Dinkey v. Com., 17 Pa. St. 126, Com. V. Burk, 2 Pa. Co. Ct. 55 Am. Dec. 542. Rep. 12. Act for fornication and bas- See, supra, § 705. tardy, may be included In an in- 6 Nicholson v. Com., 91 Pa. St. dictment for seduction. — Nichol- 390; Com. v. Kammerdiner, 165 son v. Com., 91 Pa. St. 390. Pa. St. 222, 30 Atl. 929; Com. v. s Jackson v. State, 91 Wis. 253, Burk, 2 Pa. Co. Ct. Rep. 12. 64 N. W. 838. On an indictment charging for- i Com. v. Burk, , 2 Pa. Co. Ct. nlcation and bastardy in one Rep. 12. count, and adultery in another, ac- 2 See State v. Briggs, 68 Iowa cused may be found guilty on both 416, 27 N. W. 358. counts. — Com. t. Burk, 2 Pa. Co. 3 Jackson v. State, 91 Wis. 253, Ct. 12. 64 N. W. 838, N