(fornpU Ham i>rl|00l Hibtarg Cornell University Library KF9219.C461896 Cases on criminal law.A collection of re 3 1924 020 147 389 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020147389 CASES ON CRIMINAL LAW. To accompany this volume. THE LAW OP CRIMES. By John Wilder May. Second Edition. Edited by Joseph Henry Beale, Jb. Cases on CRmmAL Law. A COLLECTION OF REPORTED CASES ON THE CRIMINAL LAW. BY " ' O ' H. W. CHAPLIN. Siecanti 'Etiition, ENLARGED AND REVISED, BY CARLETON HUNNEMAN. BOSTON: LITTLE, BROWN, AND COMPANY. 1896. Copyright, 1891, Bt Little, Bkown, and Compant. Copyright, 1895, Bt Little, Bkown, and Compant. John Wilson and Son, Cambkidge, U.S.A. COMPARATIVE TABLE OF CONTENTS TO MAY'S CRIMINAL LAW, SECOND EDITION, AND CHAPLIN'S CASES ON CRIMINAL LAW. Cases Cited Faoe xiii CHAPTER I. SOURCES OF OUE CRIMINAL LAW. Paok English Common Law 1 Early Englibii Statutes 1 Admiralty 1 Local Usages 1 Mat's CEnmfAL Law. ; §§2,3,12.13,17, : 140, 197, 198. §§ 305, 318. §338. §§ 188, 191. CHAPTER II. CRIMINAL LAW OF THE FEDERAL GOVERNMENT. §1- No Comrnon Law, operating proprio vigore, in the Federal System 14 Express Adoption of a Body of Local Law, includ- ing its Common Law 22 Tacit Adoption of the Common La w by Reference 22. Summary Constitutional and Statutory Adoption of Principles of Law of Admiralty 24 Summary Adoption in Whole or in Part of Other Existing Systems of Law. (Law of Nations) Federal Jurisdiction by Locality; Ceded Places; Places Purchased by Consent of State ; Places Purchased without Consent of State; Places retained on Creation of State; Exclusive or Concurrent Jurisdiction Federal Jurisdiction by Locality. Territories; Delegation of Legislative Powers 43 Federal Jurisdiction by Locality : High Seas . . 49 Federal Jurisdiction by Locality : Admiralty Waters not part of the High Seas (Rivers, Bays, etc.) 51 (a) Federal Rights of Jurisdiction .... 51 (6) Greater of Less Exercise of those Rights . 51 (c) Reserved Rights of States 51 28 39 §§ 4, 218. §4- §§ 2, 8, 109. §2. §§ 4, 82, 83. §2. §§ 78, 338. 119, 218, §§ 78, 80, 82, 83. IV CONTENTS. § 10. Federal Jurisdiction by Subject-Matter .... 11. Jurisdiction by Subject-matter: Federal Cogni- zance, in Certain Cases, of Alleged Offences against State Laws 12. Federal Jurisdiction by Subject-Matter: Concur- rent with State Jurisdiction over Specific Acts . PAaE 55 63 63 Mat's Ceiminal Law. §§ 81-88. §82. §§82,83,277,299, 336. CHAPTER in. THE MENTAL ELEMENT IN CRIME. INSANITT 78 §§35, 39-45, 124. Drunkenness 73 §§ 46-49, 185. Immatukitt 73 §§ 36, 69. Coercion 78 §§ 37, 68, 69. Pressure of Circumstances 73 §§68, 236. CHAPTER IV. THE MENTAL ELEMENT IN CRIME. Ignokancb or Mistake of Law ; Ignorance or Mis- take OF Facts 83 § 1. Ignorance or Mistake of Law 83 §§ 51-57, 289. 2. Ignorance or Mistake of Facts 86 §§ 50-57, 196. CHAPTER V. THE MENTAL ELEMENT IN CRIME. Intent to do Wrong. Eeligious Convictions . . 93 ( §§ 26, 53-55, 230, I 233. CHAPTER VI. THE MENTAL ELEMENT IN CRIME. Wrongful Intent, but no Intent to do the Speci- ( §§ 28, 34, 185, pic Act 104 i 254. CHAPTER VII. THE MENTAL ELEMENT IN CRIME. Coupling of Act and Intent; Act with no suf- ficient Intent ; Intent with no sufficient Act 109 § 1. Act with no sufficient Intent 109 2. Intent with no sufficient Act Ill §§ 5, 11, 217, 267. §6. CONTENTS. CHAPTER VIII. THE MENTAL ELEMENT IN CRIME. Fase Mat's Cbhiiiial Law. r, T -KT n^ ( §§29-31,231-233 Culpable Inaction ; Negligence 114 i " „„. CHAPTER IX. THE MENTAL ELEMENT IN CEIME. Intent without Possibility op Success 117 §§ 184, 190. CHAPTER X. THE MENTAL ELEMENT IN CEIME. ( §§ 32-34, 47, 173, Malice 118 1 221-224, 254, ( 322, 323. CHAPTER XI. LOCALITY IN CEIME. Constructive Presence through Innocent Instru- mentality ; Constructive Presence^hrough Guilty Instrumentality 125 § 1. Innocent Instrumentality 125 § 335. 2. Guilty Instrumentality ; Statutory Constructive ) » -q Presence of Accessory 129 ) CHAPTER XII. PARTIES TO CRIMINAL ACTS. Principal and Innocent Agent ; Joint Principals Acting Separately; Principals in First AND in Second Degree ; Principal and Accessory 131 §1. Innocent Agency 131 §§69,335. 2. Joint Principals acting separately 135 § 69. 8. Principals in First and in Second Degree .... 137 § 69. 4. Principal and Accessory 138 §§ 69-75. VI CONTENTS. CHAPTER XIII. INCOMPLETE ACTS. Paoe Mat's Ceimdiai. Law. ) §§ 18, 19, 140, A Ckiminal Tendency 139 5 183-185, 213. Solicitations, Attempts, and other Acts Having ) §§ 18, 19, 140, CHAPTER XIV. CEIMINAL LIABILITY. CONTRIEUTORT GuiLT OR NEGLIGENCE 142 § 1. Contributory Guilt 142 §§25, 312. 2. Contributory Negligence 149 § 24. CHAPTER XV. CEIMINAL LIABILITY. Authorization; Consent 151 § 1. Authorization 161 §§60, 207. t §§22,23,197,200, [2. Consent 152 ] 203, 208, 209, ( 244, 259. CHAPTER XVI. ASSAULT AND BATTEEY. 153 §§ 66, 205-216. CHAPTER XVII. CEIMINAL HOMICIDE. Manslaughter; Murder 163 i 22, SO, 81, 122, 219-233. 2. Co-operating Causes 168 §§ 24, 25, 27, 230. 1. The Act and Means of Killing 163 | CHAPTER XVIII. CRIMINAL HOMICIDE. Manslaughter jY2 Ri TT ^ • ^TT-n- ( §§26,28-31,226, § 1. Undesigned Killing 172 ) 230-233, 237, t 238 2. Intentional Killing, but with Qualifying Circum- ( §§ 218, 227-229 stances 174 I 234,235,236,239! CONTENTS. Vll CHAPTER XIX. CKIMINAL HOJIICIDE. Paob May's Ceimikai Law. MOKDER 176 § 1. Malice Aforethought; Intention to kill, but Fail- ( §§28, 32, 33, 22i- ure of Specific Intention 176 I 224. 2. Murder : ' Malice Aforethought ; Wrongful Inten- I .» 28 223. tioH, but no Intention to kill 183 ) 3. Murder : Malice Aforethought ; Drunkenness as 1 oo 4g_49_ Throwing Light upon the Existence of Malice . 187 S 4. Murder ; Statutory Degrees 189 < 40, 42, 47, 215, 225. CHAPTER XX. HOMICIDE : JUSTIFICATION. § 1. Self Defence ; Defence of Another 192 | §§ ^214^*232-235' 2. Extreme Pressure of Circumstances 195 §§ 43, 68, 236, 239. CHAPTER XXI. EAPE AND CAENAL KNOWLEDGE OF CHILDREN. § 1. Kape 203 §§ 241-244. 2. The Relation of the Offences of Rape and Carnal 1 g 040 Knowledge of Children 209 ) * CHAPTER XXII. LAECENY. {eg CO 977~9Rn OQO one onn * CHAPTER XXIII. LAEQENY, Subjects op Larceny 237 § 1. Articles Part of the Realty 237 §§17, 271, 273. 2. Deeds Savoring of the Realty 242 §§273,275. 3. Choses in Action 244 §§272,275. Vlll CONTENTS. Faos § 4. Written Paper or Parchment not Sayoring of the Realty, and not Containing Operative Ciioses in Action, and therefore, Viewed as Mere Pieces of Paper or Parchment, and so, as " Goods and Chattels " 246 5. Animals Ferce Natures 248 6. Conversion of Realty into Chattels by Severance ; Subsequent Taking by Distinct and Separate Act 253 7. Conversion of Animals Feroe Natures into Subjects of Larceny by Killing ; Subsequent Taking by distinct and separate Act 256 Mat's CEiMraAL Law. § 272. §274. §275. §§ 74, 269, 274, 275,278,279,284, 288, 289, 299, 317 CHAPTER XXIV. LAECENY. Question not op Custodt or of Title, but of Possession 263 § 1. Wrongful Taking of Mere Custody 263 § 299. 2. Acquisition of Title 270 §§ 278, 317. 8. Larceny by Owner. Rightful Adverse Possession 273 § 286. CHAPTER XXV. LAECENY. Different Forms of Taking 279 § 1. Stealing from One's Own Custody 279 | 2. In General, no Larceny by One already in Pos- ) oo ggg .234 293. session 291 ) 3. Conventional Taking by Breaking Bulk .... 296 4. The Question of Possession as between Master and ( Servant 310 ( §§ 283, 284, 286, 289, 290. §§ 284, 290. §§ 272, 283, 299, 300, 302. CHAPTER XXVI. LAECENY. Getting Possession by Inoperative Consent or by Acquiescence 314 § 1. By Consent inoperative through Fraud. Taking ( §§ 22, 277, by Trick or Device 314 ( 307. 2. By Consent otherwise Invalid 321 § 278. 3. By Acquiescence for Detection 326 § 22. 278, CONTENTS. IX CHAPTER XXVII. LAECENY. Page Max's CamiHAL Law. Presumed Consent. —Lost Goods 331 §§280,281. CHAPTER XXVIII. LAECENY. Character, Extent, and Object op the Possession C §§ 285, 286, 288- i Assumed. The Question of Luari Causa .... 335 \ 291, 305, 311, CHAPTER XXIX. LAECENY. Taking bt Wipe 359 §§287, 325. CHAPTER XXX. LAECENY. Withholding not Labcbnt 361 §§ 285, 289, 290. CHAPTER XXXI. LAECENY. Invasion op a Wkongpul Possession 366 § 292. CHAPTER XXXII. LAECENY. fid Goods in' Jurisdiction 368 i " 326. Conventional Taking bt bringing Goods into New 1 §§ 80, 119, 296, CHAPTER LAECENY. The Physical Act op Taking 380 § 277. CONTENTS. CHAPTER XXXIV. LAEOENY WITH AGGEA.VATION. Faoe Mat's GBiuiNAii Law. i 1. Larceny from the Person 386 §§ 248, 293-295. 2. Larceny from a Building 387 §§ 252, 293, 296. CHAPTER XXXV. STATUTORY OFFENCES SUPPLEMENTAKY TO LAECENY. Ceetain General Principles oe Constkuction . . 391 | ^§ ' ^' ' ' CHAPTER XXXVI. EMBEZZLEMENT. 393 \ §§ ^^oAa^^^' ^^^ ( 304. CHAPTER XXXVII. CHEATING BY FALSE PEETENCES. § 1. Obtaining of Title : InoperatiTe Intent to Pass ( §§ 17, 305, 317, Title 410 ( 318, 329. 2. Obtaining of Title : not mere Custody 411 § 317. 3. Obtaining of Title : Cases of Partnership .... 414 4. Pretence — not Mere Promise or Assurance . . . 415 §§ 306, 309. 5. Pretence of Fact Coupled with Promise .... 415 §§ 306, 307. 6. Pretence of Fact : Intent as a Fact 416 §§ 306, 310. 7. The Pretence : Credibility 415 §§ 309, 313. 8. The Pretence : Other Cases 415 | §§ ^?J7^??' ^^^' ( ol4, 316. 9. Continuing Pretence 416 § 306. 10. Remoteness of Pretence 416 § 315. 11. Intention to Refund 416 § 310. 12. Limitation to Subjects of Common-Law Larceny . 416 § 316. 13. Statutory Revesting of Title upon Conviction . . 416 CHAPTER XXXVIII. RECEIVING STOLEN GOODS. § 1. Limitation to Goods technically " Stolen "... 417 §§ 287, 325, 326. 2. Whether Goods Stolen Goods or not at time of Beceivii^g 417 } § 326. CONTENTS. XI Page May's CEraraAL Law. i 3. Only Goods Stolen Within the Jurisdiution . . . 428 | §§ ^^^Q^^^' ^^^~ 4. Distinction between Larceny from Thief and Re- 1 »» 324 398 ceiving 441 ) ' 5. Act of Receiving 442 § 325. 6. Successive Receivings : Receiving from a Receiver 460 § 80. 7. The Question of Lucri Causa 465 § 324. 8. Guilty Knowledge 466 §§ 129, 827. 9. The Question of Knowledge 469 §§ 327, 328. CHAPTER XXXIX. rOECIBLE ENTRY. 471 §§ 17, 167-169. CHAPTER XL. BURGLAKY AND OTHER BREAKINGS. § 1. The Building 474 | ^§ 272. 17, 256-266, 268. 2. Thelntent 482 { §§ ^.-^l^, 267, CHAPTER XLI. ARSON AND OTHER BURNINGS. ( 1. Indictable Common Law Burning, below the Grade ) o nej of Arson 484 i ^ 2. Arson and Statutory Burnings 484 §§ 250-255. CHAPTER XLII. FORGERY. i 1. What is a Writing 486 -I §§ ''^' ^^^' ^^^' I 330,332. 2. The Character of the Writing 492 i §§ ^'j^' ^^^' ^^^~ 3. The Essence of Forgery Fietitiousness, not Un- ) -. „on 000 truthfulness 493 j SS rfdU-dd-i- 4. Instances of Fictitiousness as distinguished from ) „ „„^ mere Untruthfulness 497 ) ^ 5. Untruthfulness amounting to Fictitiousness (ante- ) -~ ,00 qq,i dating Instruments) 506 J ^S ^^^' ^'i*- CHAPTER XLIII. UTTERING FORGED WRITINGS. 507 §335. XU CONTEKTS. CHAPTER XLIV. Page Mat's Ceiuihal Law. LIBEL .... 611 §§ 172-175. CHAPTER XLV. PEEJUEY .... 628 §§ 147-152. CHAPTER XLVI. NUISANCE ... 543 §§178-180,182. INDEX 661 p. 323. CASES CITED. Page Adams (Regina v.), 1 F. & F. 86 468 (Bex i;.),'Ru8S. & Ry. 225 410 Agnes Gore's Case, 9 Co. 81, a 182 American Insurance Company v. Canter, 1 Pet. 611 43 Anderson (Regina v.), 1 L. R. C. C. 161 ; 11 Cox C. C. 198 51 Andrews (Com. v.), 2 Mass. 14 436 Arjona (U. S. v.), 120 U. S. 479 32, 55 Armstrong (Regina ».), 13 Cox C. C. 184 51 Ashwell (Regina v.), 16 Cox C. C. 1 220 (Regina v.), 1 Cox C. C. 250 145 Avery v. Ward, 150 Mass. 160 540 Bailey (Regina v.), 12 Cox C. C. 56 405 Bake et al. (Rex v.), 3 Burr. 1731 478 Baldwin (Com. v.), 11 Gray, 197 495 Banks (Rex v.), Russ. & Ry. 441 364 Bannen (Regina v.), 2 Moody C. C. 309 131 Barnes (Regina v.), 8 Cox C. C. 129 394 Barry (Cora. «.), 116 Mass. 1 70 Bartlett (State v.), 11 Vermont, 650 376 Barton (Regina «.), 3 Cox C. C. 275 73 Bean (Com. v.), 117 Mass. 141 465 Beecham (Regina v.), 5 Cox C. C. 181 335 Bentley v. Vilmont, L. B. 12 App. Cas. 471 ' 416 Bevans (U. S. v.), 3 Wheaton, 336 17, 51 Birchall (Regina v.), 4 F. & F. 1087 149 Bird (Eegina v.), 12 Cox C. C. 257 361 Bishop (Regina v.), 14 Cox C. C. 404 ; 15 Q. B. D. 259 86 Boulton ( Regina v.), 1 Den. C. C. 508 413 Bowden (Regina v.), 2 Moody C. C. 285 390 Bowers (Regina v.), L. R. 1 C. C. R. 41 402 Bramley (Rex v.), Russ. & Ry. 478 276 Brazier (Rex v.), Russ. & Rv. 337 300 Brooke (Regina ».), 7 Cox C. C.251 526 Buckmaster (Regina v.), 16 Cox C. C. 339 816 Bull (Retina v.), 15 Cox C. C. 608 415 Bunce (Regina v.), 1 F. & F. 523 314 Burton (Regina v.), 3 F. & F. 772 75 Page Cabbage (Rex v.), Russ. & Ry. C. 0. 292 344 Callaghan and HoUoway (Com. v.), 2 Virginia Cases, 460 6 Campbell (Rex v.), 2 Leach C. -C. 642 387 Canter (American Insurance Co. v.), 1 Pet. 611 43 Carll (U. S. v.), 105 U. S. 611 22 Carr (Regina ».), 10 Q. B. D. 76 ; 15 Cox C. C. 129 51, 378, 429 Carrier's Case, Year-book, 1473 (Eas- ter), 13 Ed. IV., p. 9, pi. 5 296 Cartwright v. Green, 8 Ves. 405 214 Chamberlain (Regina v.), 10 Cox C, C. 486 172 Chapman (Regina v.), 1 Den. C. C. 432 140 Chicago, &c. Ry. Co. v. MoGlinn, 114 U. S. 542 39 Churchill (Com. v.), 2 Met. 118 3 Clap (Cora, v.), 4 Mass; 163 524 Gloss (Regina v.), 7 Cox C. C. 494 486 CoUberg (Com. v.), 119 Mass. 350 160 Commonwealth v. Andrews, 2 Mass. 14 436 V. Baldwin, 11 Gray, 197 495 V. Barry, 116 Mass. 1 70 V. Bean, 117 Mass. 141 465 V. Callaghan and Holloway, 2 Virginia Cases, 460 6 V. Churchill, 2 Met. 118 3 V. Clap, 4 Mass. 168 524 V. CoUberg, 119 Mass. 350 160 V. Donahue, 148 Mass. 529 157 V. Felton, 101 Mass. 204 67 V. Finn, 108 Mass. 466 366 . Roosnell, 143 Mass. 32 212 V. Stebbins, 8 Gray, 492 83 V. Stratton, 114 Mass. 303 155 V. Sugland, 4 Gray, 7 211 V. Taylor, 105 Mass. 172 129, 131 V. Walden, 3 Gush. 558 118 V. Warren, 6 Mass. 72 U V. Warren and Johnson, 6 Mass. 78 12 V. White, 110 Mass. 407 153 Conde (Kegina v.), 10 Cox C. C. 547 165 Cooke (Renina v.), 12 Cox C. C. 10 287 Coolidge (U. S. v.), 1 Wheaton, 415 16 Coombs (U. S.f.), 12 Pet. 72 24,49 Cox u. Lee, L. R. 4 Ex. 284 520 CuUum (Regina v.), L. R. 2 C. C. R. 398 Davis (Reginau.), 14Cox C. C. 563 81 (Tennessee v.), 100 U. S. 257 63 De Bare (United States v.), 6 Biss. 358 426 Dee (Regina v.), 15 Cox C. C. 579 203 Dewitt (United States v.), 9 Wall. 41 60 Dicken (Regina v.), 14 Cox C. C. 8 209 Dickinson (Rex v.), Russ. & Ry. C. C. 420 358 Doherty (Regina v.), 16 Cox C. C. 306 187 Dolan (Regina v.), 1 Dears. C. C. 4.36 ; 6 Cox C. C. 449 417 Donahue (Cora, v.), 148 Mass. 529 157 Doody (Regina v.), 6 Cox C. C. 463 79 Downes (Regina v.), 13 Cox C. C. Ill ; 1 Q. B. D. 28 102, 114, 174 Dudley (Regina ;•.), L. R. 14 Q. B. 273; 15CoxC. C. 624 195 Dunn, Elizabeth (Regina v.), Leach C. C. 59 500 Edwards (Regina v.), 13 Cox C. C. 384 239 Eggington (Hex r.), 2 East P. C.494, 666 ; 2 B. & P. 508 326 Elizabeth March (Rex v.), 1 Moody C. C. 182 484 Evans (Regina u.), 9 Cox C. C. 238 414 Ex parte Windsor, 10 Cox C. C. 121 493 Faulkner (Regina v.), 13 Cox C. C. 650 106,120 Pago Felton (Com. v.), 101 Mass. 204 67 Kerens v. O'Brien, 11 Q. B. D. 21 238 Einkelstein etal. (Regina v.), 16 Cox C. C.107 127,131,511 S'inn (Com. v.), 108 Mass. 466 366 Flowers (Regina v.), 16 Cox C. C. 33 229 Foster (Com. v.), 114 Mass. 311 503 Fox V. State of Ohio, 5 Howard, 410 63 (United States v.), 95 U. S. 670 58 Franklin (Regina v.j, 15 Cox C. C. 163 105, 114, 174 Friend (Regina v.), Russ. & Ry. 20 114 Gamlen (Regina v.), 1 F. & F. 90 79 Gardner (Regina v.), 9 Cox C. C. 253 365 Gore's (Agnes) Case, 9 Co. 81, a 182 Gould (Rex v.), 1 Leach C. C. 257 890 Grant (Com. v.), 116 Mass. 17 537 Green (Cartwright v.), 8 Ves. 405 214 (Com. v.), 2 Pick. 380 117 (Merry v.), 7 M. & W. 623 217 Guernsey (Regina v.), 1 F. & F. 394 360 Hackett (Com. v.), 2 Allen (Mass.), 136 168 Hall (Regina v.), 3 Cox C. C. 246 282 (Rex v.], 3 C. & P. 409 84 (U. S. I'.), 98 U. S. 343 55 Hands (Regina v.). 16 Cox C. C. 188 383 Harding's Case, 1 Greenl. 22 472 Harkins (Com. i-.), 128 Mass. 79 416 Harris (Regina v.), 6 Cox C. C. 363 397 (Rex v.), 1 Moo. C. C. 393 493 Harvey (Rex v.), 2 B. & C. 257 511 Hawkeswood (Rex v.), Leach C. C. 292 493 Hawkins (Com. v.), 8 Gray, 463 79 Haynes (Regina <,•.), 1 F. & F. 666 76 Hays (Com. v.), 14 Gray, 62 407 Headge (Rex v.), Russ. & Ry. 160 401 Hennah (Regina v.), 13 Cox C. C. 647 111 Heywood (Regina v.), 2 C. & K. 362 507 Hoare v. Silverlock, 12 Q. B. 626 617 Holder (Cora, v.), 9 Gray, 7 368 HoUoway (Kegina v.), 3 Cox C. C. 241 263 Holmes (United States v.) 1 Wall. Jr 1 196 Hopt V. People, 104 U, S. 631 78 Hoskins v. Tarrance, 6 Blackf. 417 240 Hudson et al. (Regina v.), 8 Cox C. C. 305 142 (U. S. v.), 7 Cranoh, 32 14 Hughes (Regina v.), 7 Cox C. C. 801 114, 174 Hunter (Regina v.), 10 Cox C. C. 642 415 Hypothetical Case 356 CASES CITED. XV Page In re Neagle, 135 U. S. 1 63 Ion (Regina v.), 2 Den. C. C. 475 509 Isaac (Bex u.). 2 East P. C. 1031 484 Ives (State v.), 13 Iredell, 338 460 Jackson (Rex v.), 1 Moody C. C. 119 856 James (Com. v.), 1 Pick. 375 304 Jennison (Regina v.), 9 Cox C. C. 148 415 Johnson et al. (Regina v.), 5 Cox C. C 372 284 Johnson (State v.), 40 Conn. 136 189 Jones (Regina v.), 6 Cox C. C. 467 415 (Regina y.),l Den. C. C. 188 346 Raster (State v.) 35 Iowa 221 549 Kenny (Regina v.), 2 Q. J3. D. 307 ; 13 Cox C. C. 397 359, 417 Kew et al. (Regina v.), 12 Cox C. C. 355 150 Kilham (Regina v.), L. R. 1 C. C. R. 261 411 Kirkwood et al. (Rex v.), 1 Moody C. C. 304 185 Knight (Rex!).),2 East P. C.510 111,484 Knock (Regina v.), 14 Cox C. C. 1 192 Knowlton (Com. v.), 2 Mass. 530 1 Knox V. Mayor, 55 Barbour 404 543 Lamer (Regina v.), 14 Cox C. C. 497 416 Latimer (Regina v.], 17 Q. B. D. 359 ; 16 Cox C. C. 70 122 Lawrence (Regina v.), 36 L. T. 404 415 Leach (Com. v.), 1 Mass. 59 9 Lee (Cox v.), L. R. 4 Ex. 284 520 Leighton v. People, 88 N. Y. 117 191 Leonard (Com. v.), 140 Mass- 473 466 Lesley (Regina v.), Bell C. C. 220; - 8 Cox C. C. 269 151 Levefs Case, 1 Hale P. C. 42 85 Lewis (Rex v.), Foster C. C. 116 506 Little (Regina v.), 10 Cox C. C. 559 323 Lockett (Rex v.), 1 Leach C. C. 110 498 Lopez (Regina v.), 7 Cox C. C. 431 51 Lovell (Regina v.), 8 Q. B. D. 185 324 Madge (Regina v.), 9 C. & P. 29 428 Madox (Rex w.),Russ. & Ry. 92 301 Manchester (Com. v. ), 152 Mass. 230; 25 N. E. Rep. 113 55 Manning et al. (Regina ».), 6 Cox C. C. 86 268 Marshall (Rex v.), Russ. & Ry. 75 497 Martin (Regina v.), L. R. 1 C. C. R. 56 ; 10 Cox C. C. 383 416 (Regina v.), 2 Moody C. C. 123 152 (Regina v.), 14 Cox C. C. 375 ; 5 Q. B. D. 34 501 Maryland (Smith v.), 18 How. 71 51 Mash (Com. v.), 7 Met. 472 88 Page Masters (Regina !>.), 3 Cox C. C. 178 395 iReginai).), IDen. C. C. 382 310 Mayor (Knox v.), 55 Barbour 404 543 McCord V. The People, 46 N. Y. 470 148 MoDaniel (Regina «.), Leach C. C. 52 167 McGlinn (Chicago, &c. Ry. Co. v.), 114 U. S. 542 39 Medland (Regina v.), 5 Cox C. C. 292 338 Merry v. Green, 7 M. & W. 623 217 Michael (Regina v.), 1 Moody C. C. 120 133 Miller (Com. v.) 139 Penn. 77 555 Mink (Com. v.), 123 Mass. 422 104 Moah (Regina v.) 7 Cox C. C. 503 492 Morfit (Rex. v.), Russ. & Ry. C. C. 307 345 Morrill (Com. v. ), 8 Cush. 571 146 MuUaly v. People, 86 N. Y. 365 248 Murray (Rex v.), 1 Moody C. C. 276 310 Naylor (Regina v.), 10 Cox C. C. 149 416 Newell (Com. v.), 7 Mass. 245 109, 482 Newman (Taylor v.), 9 Cox C. C. 314 391 Nieholls (Regina v.), 13 CoxC. C. 75 114 O'Brien (Ferens v.), 11 Q. B. D. 21 238 Oddy (Regina w.), 5 Cox C. C. 210 469 Ogden, James (Rext).), 6 C. & P. 631 93 Owen (Rex v.), 1 Moody C. C. 96 137 Palmer v. The People, 10 Wend. 165 273 Parker (Regina v.), 7 C. & P. 825; 2 Moody C. C. 1 415 Pearson's Case, 2 Lewin C. C. 144 77 Pembliton (Regina v.), 12 Cox C. C. 607 120 People (Hopt v.) 104 U. S. 631 78 (Leighton v.), 88 N. Y. 117 191 the (McCord v.), 46 N. Y. 470 148 (MuUaly «.), 86 N. Y. 365 248 the (Palmer v ], 10 Wend. 165 273 V. Richards, 108 N. Y. 137 474 (Tuttlev.), 36N. Y. 4.31 528 V. Wiley, 3 Hill (N. Y.), 194 4.^8 V. Williams, 35 Cal. 671 253 Perry (Com. v.), 189 Mass. 198 5.52 Fetch (Regina v.), 14 Cox C. C. 116 260 Pettes (Com. v.), 114 Mass. 307 129, 1)39 Phetheon (Regina v.), 9 C. & P. 5.52 337 Phipoe (Rex v.). 2 Leach C. C. 673 ; 2 East P. C. 599 267 Pierce (Regina v.), 6 Cox C. C. 117 3-34 Powell (Regina v.), 5 Cox C. C. 396 244, 484 Poynton (Regina v.), 9 Cox C. C. 249 281 Poyser (Regina v.), 2 Den. C. C. 233 308 Pratt (Regina M.), 6 CoxC. C. 373 293 Prince (Regina v.), 1 L. R. C. C 150; 11 Cox C. C. 193 270 Privett (Regina v.), 1 Den. C. C. 193; 2 C. & K. 114 349 XVI CASES CITED. Page Probert (Rex v.), 2 East P. C. 1030 484 Prowes (Hex v.), 1 Moody C. C. 849 379, 428 Quail (Regina v.), 4 F. & P. 1076 139 Radford (Regina v.), 1 Den. C. C. 59 608 Randell (Regina v.), 16 Cox C. C. 335 416 Ray (Com. v.), 3 Gray, 441, 446 492 Raymond (State v.), 20 Iowa 582 534 Re Clapton, 3 Cox C. C. 126 393 Reardon (Regina v.), L. R. 1 C. C. R. 31 463 Reculist (Rex v.), Leacli C. C. 811 493 Reed (Regina v.), 23 L. J. (N. S.) M. C. 25 232 Reeves (Regina u.),5 Jur. (N. S.) 716 331 Regina v. Adams, 1 F. & P. 86 468 V. Anderson, 1 L. R. C. C. 161 ; 11 Cox C. C. 198 51 I.. Armstrong, 13 Cox C. C. 184 51 V. Asliwell, 16 Cox C. C. 1 220 u. , I Cox C. C. 250 145 V. Bailey, 12 Cox C. C. 56 405 V. Bannen, 2 Moody C. C. 309 131 V. Barnes, 8 Cox C. C. 129 394 V. Barton, 3 Cox C. C. 275 73 V. Beecham, 5 Cox C. C. 181 335 V. Bircliall, 4 P. & P. 1087 149 V. Bird, 12 Cox C. C. 257 361 V. Bishop, 14 Cox C. C. 404; 15 Q. B. D. 259 86 V. Boulton, 1 Den. C. C. 508 413 V. Bowden, 2 Moody C. C. 285 390 V. Bowers, L. R. 1 C. C. R. 41 402 V. Brooke, 7 Cox C. C. 251 526 V. Buclcmaster, 16 Cox C. C. 339 316 V. Bull, 15 Cox C. C. 608 415 V. Bunce, 1 P. & P. 523 314 V. Burton, 3 P. & P. 772 75 V. Carr, 10 Q. B. D. 76 ; 15 Cox C. C. 129 51, 378, 429 V. Chamberlain, 10 Cox C. C. 486 172 V. Chapman, 1 Den. C. C. 432 140 V. Closs, 7 Cox C. C. 494 486 V. Conde, 10 Cox C. C. 547 165 V. Cooke, 12 Cox C. C. 10 287 V. Cullura, L. R. 2 C. C. R. 28 398 V. Davis, 14 Cox C. C. 563 81 V. Dee, 15 Cox C. C. 579 203 V. Dicken, 14 Cox C. C. 8 209 V. Doherty, 16 Cox C. C. 306 187 V. Dolan, 1 Dears. C. C. 436 ; 6 Cox C. C. 449 417 0. Doodyi 6 Cox C. C. 463 79 ■0. Downes, 13 Cox C. C.lll ; 1 Q. B. D. 28 102, 114, 174 V. Dudley, L. R. 14 Q, B. 273; 15 Cox C. C. 624 195 V. Dunn, Leach C. C. 59 500 Page Regina i-. Edwards, 13 Cox C. C. 384 239 V. Evans, 9 Cox C. C. 238 414 V. Faulkner, 13 Cox C. C. 550 106, 120 V. Finkelstein et al., 16 Cox C. C. 107 127, 131, 511 V. Flowers, 16 Cox C. C. 33 229 V. Franklin, 15 Cox C. C. 163 105, 114, 174 V. Friend, Russ. & Ry. 20 114 V. Gamlen, 1 F. & P. 90 79 V. Gardner, 9 Cox C. C. 253 365 V. Guernsey, 1 F. & P. 394 350 V. Hall, 3 Cox C. C. 245 282 e. Hands, 16 Cox C. C. 188 383 V. Harris, 6 Cox C. C. 363 397 V. Haynes, 1 P. & F. 666 76 V. Hennah, 13 Cox C. C. 547 111 V. Heywood, 2 C. & K. 352 507 V. HoUoway, 8 Cox C. C. 241 263 V. Hudson et al., 8 Cox C. C. 305 142 V. Hughes, 7 Cox C. C. 301 114, 174 V. Hunter, 10 Cox C. C. 642 416 V. Ion, 2 Den. C. C. 475 509 V. Jennison, 9 Cox C. C. 148 416 V. Johnson et al., 5 Cox C. C. 372 284 V. Jones, 6 Cox C. C. 467 415 V. Jones, 1 Den. C. C. 188 346 V. Kenny, 2 Q. B. D. 307 ; 13 Cox C. C. 397 359, 417 V. Kew et al., 12 Cox C. C. 355 150 V. Kilham, L R. 1 C. C. R. 261 411 V. Knock, 14 Cox C. C. 1 192 V. Larner, 14 Cox C. C. 497 416 V. Latimer, 17 Q. B. D. 359 ; 16 Cox C. C. 70 122 V. Lawrence, 36 L. T. 404 416 V. Lesley, Bell C. C. 220 ; 8 Cox C. C. 269 151 V. Little, 10 Cox C. C. 559 323 V. Lopez, 7 Cox C. C. 431 51 V. Lovell, 8 Q. B. D. 186 324 V. Madge, 9 C. & P. 29 428 V. Manning et al., 6 Cox C. C. 86 268 V. Martin, L. R. 1 C. C. R. 56; 10 Cox C. C. 383 416 V. Martin, 14 Cox C. C. 375 ; 5 Q. B. D. 34 501 V. Martin, 2 Moody C. C. 123 152 V. Masters, 3 Cox C. C. 178 395 V. Masters, 1 Den. C. C. 332 310 V. McDaniel, 7 Leach C. C. 52 167 V. Medland, 5 Cox C. C. 292 338 V. Michael, 1 Moody C. C. 120 133 V. Moah, 7 Cox C. C. 503 492 V. Naylor, 10 Cox C. C. 149 416 V. Nicholls, 13 Cox C. C. 76 114 V. Oddy, 6 Cox C. C. 210 469 ». Parker, 7C. &P. 825; 2 Moody C. C. 1 415 V. Pembliton, 12 Cox C. C. 607 120 V. Fetch, 14 Cox C. C. 116 260 V. Phetheon, 9 C. & P. 652 337 CASES CITED. XVll Page Begina v. Pierce, 6 Cox C. C. 117 334 V. Powell, 6 Cox C. C. 396 244, 484 V. Poynton, 9 Cox C. C. 249 281 V. Poyser, 2 Den. C. C. 233 308 V. Pratt, 6 Cox C. C. 373 293 V. Prince, 1 L. R. C. C. 150; 11 Cox C. C. 193 270 D. Privett. 1 Den. C. C. 193 ; 2 C. & K. 114 349 V. Quail, 4 P. & F. 1076 139 V. Kadford, 1 Den. C. C. 59 508 V. Randell, 16 Cox C. C. 336 416 V. Reardon, L. R. 1 C. C. R. 31 463 V. Reed, 23 L. J. (N. S.) M. C. 25 232 V. Reeves, 5 Jur. (N. S.) 716 331 V. Riley, Dears. C. C. 149; 6 Cox P P 88 279 t). Ritson.'llCoxC. C. 352 506 V. Robins, Dears. C. C. 418 ; 6 Cox C. C. 420 821 V. Robinson, Bell C. C. 34 391, 416 V. Rogers, 37 L. J. M. C. 83 458 V. Rose, 15 Cox C. C. 540 194 V. Rymes, 3 C. & K. 326 467 V. Sampson, 52 L. T. R. (N. S.) 772 416 V. Schmidt, L. R. 1 C. C. R. 15 ; 10 Cox C. C. 172 421 b. Selway, 8 Cox C. C. 235 386 V. Seme', 16 Cox C. C. 311 183 V. Sharman, 6 Cox C. C. 312 492 V. Sheppard, 1 Leach C. C. 265 501 V. Shickle, L. R. 1 C. C. R. 158 ; 11 Cox C. C. 189 251 V. Smith, 8 Cox C. C. 32 ; Dears. & B. 566 488 V. Smith, 1 Dears. C. C. 494 442 V. Smith, 11 Cox C. C. 210 116 w. Taylor, 4 P. & F. 511 125,131,511 V. Thristle, 3 Cox C. C. 573 291 V. Thurborn, 1 Den. C. C. 387 382 V. Toshack, 4 Cox C. C. 38 493 u. Towers, 12 Cox C. C. 530 163 V. Townley, 12 Cox C. C. 59 256 V. Towse, 14 Cox C. C. 327 84 v. Trebilcock, 7 Cox C. 0. 408 339 V. Wade, 1 C. & K. 739 441 V. WagstafEe, 10 Cox C. C. 530 100 V. Walne, 11 Cox C. C. 647 415 V. Watson, 7 Cox C. C. 364 ; Dears. & B. 348 414 V. Watts, 4 Cox C. C. 336 ; 2 Den. C. C. 14 24t, 312 V. Webb, 5 Cox C. C. 154 325 V. Webster, 9 Cox C. C. 13 277 V. White, 1 F. & F. 665 469 V. White, 1 Dears. C. C. 203 ; 6 Cox C. C. 213 381 V. White, 2 Cox C. C. 210 495 V. Wiley, 4 Cox C. C. 412 445 V. Williams, 1 C. & K. 195 329 V. Woodward, 9 Cox C. C. 95 457 V. Wynn, 3 Cox C. C. 271 352 Page Rex V. Adams, Russ. & Ry. 225 410 V. Bake et al., 3 Burr. 1731 473 V. Banks, Russ. & Ry. 441 364 V. Barnard, 7 C. & P. 784 415 V. Bramley, Russ. & Ry. 478 276 V. Brazier, Russ. & Ry. 337 300 V. Cabbage, Russ. & Ry. C. C. 292 344 V. Campbell, 2 Leach C. C. 642 387 V. Dickinson, Russ. & Ry. C. C. 420 358 V. Eggington, 2 East P. C. 494, 666; 2B. &P. 508 326 V. Elizabeth March, 1 Moody C. C. 182 484 V. Gould, 1 Leach C. C. 257 390 V. Hall, 3 C. & P. 409 84 V. Harris, 1 Moody C. C. 393 493 V. Harvey, 2 B. & C. 257 511 u. Hawkeswood, Leach C. C. 292 493 .;. Headge, Russ. & Ry. 160 401 u. Isaac, 2 East P. C. 1031 ■ 484 V. Jackson, 1 Moody C. C. 119 356 V. Kirkwood et al., 1 Moody C. C. 304 135 V. Knight, 2 East P. C. 510 111, 484 V. Lewis, Foster C. C. 116 506 V. Lockett, 1 Leach C. C. 110 498 V. Madox, Russ. & Ry. 92 301 V. Marshall, Russ. & Ey. 75 497 V. Morfit, Russ. & Ry. C. C. 307 345 V. Murray, 1 Moody C. C. 276 310 V. James Ogden, 6 C. & P. 631 93 V. Owen, 1 Moody C. C. 96 137 V. Phipoe, 2 Leach C. C. 673 ; 2 East P. C. 599 267 V. Probert, 2 East P. C. 1030 484 V. Prowes, 1 Moody C. C. 349 379, 428 V. Reculist, Leach C. C. 811 493 V. Richards, Russ. & Rv. C. C. 28 237 V. Richardson, 6 C. & P. 335 465 V. Searing, Russ. & Ry. 350 248 V. Simmonds, 1 Moody C. C. 408 375 V. Scares, Russ. & Ry. 25 138 V. Sullens, 1 Moody C. C. 129 395 V. Taylor, Russ. & Ry. 418 389 V. Thompson, 1 Moody C. C. 80 174 V. Tuft, 1 Leach C. C. 206 500 V. Walker, 1 Moody C. C. 155 246 V. Walsh, 1 Moody C. C. 14 380 V. Westbeer, 1 Leach C. C. 14 242 V. Whiley, Russ. & Ry. 90 498 V. Wilkinson, Russ. & Ry. 470 273 V. Willis, 1 Moody C. C. 375 360 V. Wilson et al., 8 D. E. 357 471 V. Young, 1 Leach C. C. 505 415 Reynolds v. United States, 98 U. S. 145 95 Richards (People v.), 108 N. Y. 137 474 (Rext;.),Russ. &Ry. C. C. 28 2-37 Richardson (Rex «.), 6 C. & P. 335 465 Riley (Regina v.), Dears. C. C. 149; 6 Cox C. C 88 279 XVlll CASES CITED. Eitson (Kegina v.), 11 Cox C. C. 352 606 Robins (Regina v.), Dears. C. C. 418 ; 6 Cox C. C. 420 321 Robinson (Regina v.), Bell C. C. 34 391, 416 Rogers (Regina v.), 37 L. J. M. C. 83 458 Roosnell (Com. v.), 143 Mass. 32 212 Rose (Regina v.), 15 Cox C. C. 540 194 Sampson (Regina v.), 62 L. T. R. (N. S.),772 416 Saunders' Case, 2 Plowd. 473 176 Schmidt (Regina v.), L. R. 1 C. C. R. 15; 10 Cox C. C. 172 421 Searing (Rex v.), Russ. & Ry. 360 248 Selway (Regina v.), 8 Cox C. C. 235 386 Seme' (Regina v.), 16 Cox C. C. 311 183 Sharraan ( Regina w.), 6 Co* C. C. 312 492 SheffiH V. Van Deusen, 13 Gray, 304 527 Slieppard (Regina v.), 1 Leach C. C. 266 501 Sliickle (Regina v.), L. R. 1 C. C. R. 158; 11 Cox C. C. 189 251 Silverlock (Hoare v.), 12 Q. B. 625 517 Simmonds (Rex v.), 1 Moody C. C. 408 375 Smitli V. Maryland, 18 How. 71 51 (Regina v.), 8 Cox C. C. 32; Dears. & B. 566 488 (Regina v ), 1 Dears. 0. C. 494 442 (Regina v.), 11 Cox C. C. 210 116 (U. S. v.), 5 Wlieaton, 153 28 Soares (Rex v.), Russ. & Ry. 25 138 Squire v. Tlie State, 46 Indiana, 459 90 State V. Bartlett, 11 Vermont, 650 376 V. Ives, 13 Iredell, 338 460 V. Johnson, 40 Conn. 136 189 V. Kaster, 36 Iowa, 221 549 V. Raymond, 20 Iowa, 582 534 (Wyatt v.), 2 Swan; 394 206 StateofOMo (Fox !>.), 5 Howard, 410 63 Stebbins (Com. v.), 8 Gray, 492 83 Stratton (Com v.), 114 Mass. 303 155 Sugland (Com. v.), 4 Gray, 7 211 SuUens (Rex v.), 1 Moody C. C. 129 395 Tarranoe (Hoskins ?;.), 5 Blackf. 417 240 Taylor (Com. v.), 105 Mass. 172 129, 131 V. Newman, 9 Cox C. C. 314 391 (Regina v.), 4 F. & F. 511 125, 131, 511 (Rex w.), Russ. &Ry. 418 389 Tennessee v. Davis, 100 U. S. 267 63 The State (Squire r.),46 Indiana, 459 90 Thompson (Rexu.), 1 Moody C. C. 80 174 Tliristle (Regina u.), 3 Cox C. C. 573 291 Thnrborn (Regina v.), 1 Den. C. C. 387 832 Toshack (Regina v.).i Cox C. C. 38 493 Towers (Regina k. ), 12 Cox C. C. 530 163 Townley (Regina v.), 12 Cox C. C. 59 256 Towse (Regina v.), 14 Cox C. C. 327 84 Trebilcock (Regina v.), 7 Cox C. C. 408 339 Tuft (Rex v.), 1 Leach C. C. 206 500 Tuttle V. People, 36 N. Y. 431 528 United States v. Ariona, 120 U. S. 479 32, 55 V. Bevans, 3 Wheaton, 336 17, 51 V. Carll, 105 U. S. 611 22 V. Coolidge, 1 Wheaton, 416 16 V. Coombs, 12 Pet. 72 24, 49 V. De Bare, 6 Biss. 358 426 V. Dewitt, 9 Wall. 41 60 V. Fox, 95 U. S. 670 58 V. Hall, 98 U. S. 343 55 V. Holmes, 1 Wall. Jr. 1 195 V. Hudson et al., 7 Cranch, 32 14 (Reynolds v.), 98 U. S. 146 96 V. Smith, 6 Wheaton, 153 28 V. Wiltberger, 5 Wheaton, 76 49 Van Deusen (ShefflU v.), 13 Gray, 304 52V Vilmont (Bentley v.), L. R. 12 App. Cas. 471 416 Wade (Regina v.), 1 C. & K. 739 441 WagstafEe (Regina «.), 10 Cox C. C. 630 100 Walden (Com. v.), 3 Cush. 658 118 Walker ( Rex v.) , 1 Moody C. C. 155 246 Walne (Regina v.), 11 Cox C. C. 647 415 Walsh (Rex K.), 1 Moody C. C. 14 380 Ward (Avery v.), 150 Mass. 160 640 Warren (Com. v.), 6 Mass. 72 , 11 & Jolinson (Com. v.), 6 Mass. 73 12 Watson (Regina v.), 7 Cox C. C. 364 ; Dears. & B. 348 414 Watts (Regina v.), 4 Cox C. C. 336; 2 Den. C. C. 14 247, 312 Webb (Regina v.), 5 Cox C. C. 154 325 Webster (Regina v.), 9 Cox C. C. 13 277 Westbeer (Rex v.), 1 Leach C. C. 14 242 Whiley (Rex v.), Russ. & Ry. 90 498 White (Com. v.), 110 Mass. 407 158 (Regina v.), 1 F. & F. 665 469 (Regina v.), 2 Cox C. C. 210 495 (Regina v.), 1 Dears. C. C. 203; 6 Cox C. C. 213 381 Wiley (People v.), 3 Hill (N. Y.) 194 438 (Regina v.), 4 Cox C. C. 412 445 Wilkinson ( Rex v.), Russ. & Ry. 470 273 Williams (People v.), 36 Cal. 671 253 (Regina «.), 1 C. & K. 196 329 Willis (Rex v.), 1 Moody C. C. 375 360 Wilson et al. (Rex v.), 8 D. & E. 357 471 Wiltberger (U. S. v.), 5 Wheaton, 76 49 Woodward (Regina v.), 9 Cox C. C. 96 457 Wyatt !>. State, 2 Swan, 394 206 Wynn (Regina v.), 3 Cox C. C. 271 352 Young (Rex v.), 1 Leach 0. C. 506 415 CASES ON CEIMINAL LAW. CHAPTER I. Sources op oub Criminal Law. English Common Law ; Early English Statutes ; Admiealtt ; Local Usages. COMMONWEALTH v. KNOWLTON, 2 Mass. 530 [1807]. The indictment in this case was found at the Court of General Ses- sions of the Peace for this county, May term, 1803. It alleges that there is a certain river or stream in this county, which empties itself into the river Kennebeck, called Sandy River, up and through which said Sandy River salmon, shad, and alewives have been wont to pass to the ponds adjacent to cast their spawn, and which river ought by law to be free from all obstructions whatever ; yet that the defendant, not ignorant of the premises, at Farmington, in said county, on the first day of June, 1801, with force and arms, built and erected a mill-dam across said Sandy River, and being owner and occupant thereof, the same hath continued to the present time, without making or providing a sulHcient sluice or passage-way either through or round the said dam for the said fish to pass up as by law he ought to have done. By reason whereof the said fish have been and still are obstructed in their passing up the said river, " to the great injury of the public, in evil example to all others in like cases offending, against the peace and dignity of the Commonwealth, and contrary to the form of the statute in such case made and provided." Upon not guilty pleaded at the Court of Common Pleas,* he was con- victed and sentenced, and appealed to this court, where at September term, 1805, he was again tiied and found guilty. 1 By statute passed March 9, 1804, all the powers and duties of the Sessions, with certain exceptions, were transferred to the Courts of Common Fleas ; and all indictments, etc., then pending in the Sessions were to be proceeded in and deter- mined by the Courts of Common Pleas. 1 CASES ON CEIMINAL LAW. [CHAP. r.1 After verdict the defendant moved in arrest of judgment, because by law the said indictment did not lie at said Court of General Ses- sions of the Peace, and said court last named had by law no jurisdic-^ tion of the offence charged in said indictment. CuKiA. The defendant moves in arrest of judgment, on two grounds. The second objection, founded on the want of jurisdiction of the Sessions, has great weight. The Court of Sessions, to whose jurisdiction in criminal causes the Court of Common Pleas has succeeded, by statute of March, 1804, was erected by the statute of July 3, 1782, and it is empowered to hear and determine all matters Telating to the conservation of the peace, and such offences as are cognizable by them at common law, or by the acts of the legislature. If by common law, mentioned in this statute, be understood strictly the common law of England, those words cannot have any effect ; for the Sessions being created by statute cannot have any jurisdiction but what is given it by some statute. But, if these words import the common law of the Commonwealth, they have an ex- tensive operation and are easily understood. Our ancestors, when they came into this new world, claimed the common law as their birth- right, and brought it with them, except such parts as were judged in- applicable to their new state and condition. The common law, thus claimed, was the common law of their native country, as it was amended or altered by English statutes in force at the time of their emigration. Those statutes were never re-enacted in this country, but were considered as incorporated into the common law. Some few other English statutes, passed since the emigration, were adopted bj' our courts, and now have the authority of law derived from long practice. To these may be added some ancient usages, originating probably from laws passed by the legislature of the colony of the Massachusetts Baj^, which were annulled by the repeal of the first charter, and from the former practice of the colonial courts accommo- dated to the habits and manners of the people. So much therefore of the common law of England as our ancestors brought with them, and of the statutes then in force, amending or al- tering it ; such of the more recent statutes as have been since adopted in practice ; and the ancient usages aforesaid may be considered as forming the body of the common law of Massachusetts, which has sub- mitted to some alterations by the acts of the provincial and State legis- latures, and by the provisions of our Constitution. From these principles we may conclude that the Sessions in England, having at the time of the emigration jurisdiction of all trespasses (ex- cept perhaps forgery and perjury, see 2 East's Rep. 18), which were offences against law, when the statute of 34 Ed. 3, c. 1. was passed. CIHAP. I.J COMMONWEALTH "17. CHURCHILL. 3 giving the Sessions (among other things) the cognizance of all tres- passes ; our Court of Common Pleas, as successor of the Sessions, has jurisdiction -of the same trespasses by the common law of the Common- wealth; and that it has jurisdiction of no other trespasses, unless de- rived eispressly from some statute. The offence, of which the defendant is indicted, is clearly not an of- fence at common law, "but it is a new offence created by the statute, on which this indictment is drawn, as it is not supposed that there is any other statute by which the Sessions -can have jurisdiction ; the validity of the objection to judgment on this conviction must depend on the construction of the statute on which it was obtained. In the twelfth section it is enacted, that all the fines imposed shall be recovered bj' presentment of the grand jury, or by action of debt. This section does not expressly, or by necessary implication, include the Sessions, for the words may be perfectly satisfied by a presentment of the grand jury to this court. And the Sessions before the statute of March, 1804, or the Common Pleas since, not having jurisdiction at common law, nor by the express provisions of any statute, the Judgment .must be arrested. COMMONWEALTH v. CHURCHILL, 2 Met. 118 [1840]. At the last September term of the Court of Common Pleas, the de- fendant was convicted on four counts in an indictment, the first of which alleged that he, " at Stoughton in said Comity of Norfolk, on the 16th day of March last past, did sell to one , one glass of brandy to be by him, the said , then and there used, consumed, and drank in the dwelling-house there situate of him the said Samuel, he the said Samuel not being then and there duly licensed, according to law, to be an innholder or common victualler; against the peace, etc., and con- trary to the statute in such case made and provided." There were five other counts similar to the first, except that different kinds of spirituous liquor were alleged to have been sold to five different persons on sev- eral different days, to wit, on the l;7th, 18th, 19th, 20th, and 21st of March, 1840. On two of the counts the defendant was acquitted. The defendant filed exceptions to the ruling of Strong, J., before whom the trial was had: "1. Because the court instructed the jury that the 2d and 3d sections of c. 47 of the Revised Statutes, on which the indictment is founded, are binding and valid, when the defendant contends that they are unconstitutional and void. 2. Because the court instructed the jury that those sections were still in force as law, 4 CASES ON CRIMINAL LAW. [OHAP. I. when the defendant contends that they are repealed by subsequent legislative enactments." Shaw, C. J. It appears by the record that the defendant was in- dicted for selling spirituous liquors without license, on the 16th day of March last, and at several times afterwards, and that upon a trial of the indictment, in the Court of Common Pleas, he was convicted. Two exceptions were taken to the directions and opinion of that court in matter of law, upon which the case has been brought before this court, pursuant to the statute. These exceptions were as follows : 1. That the 2d and 3d sections of the 47th chapter of the Revised Statutes, upon which this prosecution is founded, are unconstitutional and void. 2. Because the court instructed the jury that these sections were in force as law, at the time when the acts charged as offences were alleged to be done ; whereas the defendant contended that they were repealed by a subsequent act of the legislature. Upon the first no argument has been offered, and it does not seem to be insisted on. The second de- pends upon the question whether the statute of 1840, c. 1, passed on the 11th of February, 1840, and which went into operation in thirty days from its passage, to wit, March 13, 1840, simply repealing the statute of 1838, c. 157, did, by its legal operation, revive the 2d and 3d sections of the 47th chapter of the Revised Statutes. If it did, the case of the defendant was within them, the acts all being charged to have been done after the 13th of March last, and the acts themselves being made punishable by those provisions of the Revised Statutes. It is conceded to be a maxim of the common law, applicable to the construction of statutes, that the simple repeal of a repealing law, not substituting other provisions in place of those repealed, revives the pre-existing law. As a maxim of the common law, it was in force here when the Constitution of the Commonwealth was adopted. By that Constitution it was declared that " all the laws, which have heretofore been adopted, used, and approved in the colony, province, or State of Massachusetts Bay, and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the legis- lature ; such parts only excepted as are repugnant to the rights and liberties contained in this Constitution." This Constitution has been construed as adopting the great body of the common law, with those statutes made before the emigration of our ancestors, which were made in amendment of the common law, so far as these rules and principles were applicable to our condition and form of government. Common- wealth V. Leach, 1 Mass. 59. Commonwealth v. Knowlton, 2 Mass. 534. CHAP. I.] COMMONWEALTH V. CHUECHILL. 5 But it was contended^ at the argument, that under this provision no principle or rule of the common law could be regarded as adopted, un- less it could be shown aflSrmatively that it had been adjudicated before the Eevolution. But we apprehend this would be much too narrow a construction. Before the Revolution, we had no regular reports of judicial decisions ; and the most familiar rules and principles of law — those which lie at the foundation of our civil and social rights — could not be so proved. No ; we rely on usage and tradition, and the well known repositories of legal learning, works of approved authority, to learn what are the rules of the common law ; and we have no doubt that these were the great sources to which the above pregnant provision of our Constitution refers. Taking it then as well established that the rules and maxims of the common law, referred to in the Constitution, were those which our an- cestors brought with them, and which had been, to some extent, modi- fied and adapted to our condition by the legislative jurisprudence of the colonial and provincial governments, it follows that these rules and principles were regarded as binding both upon legislators and judges in their respective departments. A part of this sj'stem are the well known rules of construction for the expounding of statutes, which are as much a part of every statute as its text. These are presumed to be known and kept in view by the legislature in framing the statute ; and they must be alike, regarded by judges in expounding it. It was further insisted in the argument, that the legislature could not have intended, when they repealed one license law, in effect to re- establish another. But their intentions must be ascertained by their acts alone, and not by evidence aliunde. We cannot possibly know the intentions of members of the legislature. It is the will of the aggre- gate body as expressed in the statutes which they pass, which can be regarded as having the force of law ; any different construction would lead to the greatest confusion and uncertainty. The legislature are presumed to understand and intend all consequences of their own measures ; and the only safe course is for courts of justice to expound the intentions of the legislature by their acts, and those acts construed by known and established rules of construction. On the whole, the Court are of opinion that the simple repeal of St. 1838, c. 157, by that of 1840, c. 1, did revive the 2d and 3d sections of the Rev. Stats, c. 47, and that the provisions of those sections were in force at the time of the offences charged in the indictment, and that the conviction was right. Msceptions overruled. CASES ON CKIMHSTAL LAW. [6HAP. I. COMMONWEALTH v: CALLA&HAN and HOLLOWAY, 2 Virginia Cases, 460 [1825]. This was a case adjourned by the Superior Court of Law of Alleghany County. The case itself is fully set forth in the following opinion of the General Court, delivered by harbour, J. This is an adjourned case from the Superior Court of Law for the County of AUeghany. It was an information filed against Callaghan and HoUoway, two of the justices of Alleghany, alleging in substance the following charge : That at a court held for the County of AUeghanj', there was an election for the office of commissioner of the revenue and of clerk of said court, when the defendants were both present, and acting in their official character as magistrates in voting in said election ; that the defendant Callaghan, in said election for commissioner of the revenue, wickedly and corruptly agreed to vote, and in pursuance of said corrupt agree- ment did vote, for a certain W. G. Holloway, to be said commissioner, in consideration of the promise of the defendant HoUoway that he would vote for a certain Oliver Callaghan to be clerk of said court ; and that the defendant Holloway in the said election of clerk wickedly and corruptly agreed to vote, and in pursuance of said corrupt agree- ment did vote, for a certain Oliver Callaghan to be said clerk, in con- sideration of the promise of the defendant Callaghan that he would vote for the aforesaid W. G. Holloway to be commissioner. To this infor- mation the defendants demurred generally, and there was a joinder in the demurrer. The Superior Court of Law of Alleghany, with the assent of the defendants, adjourned for novelty and difficulty to this court the questions of law arising upon the demurrer to the informal- tion and particularly the following, namely : 1. Is there any offence stated in said information for which an infor- mation or indictment will lie ? 2. Is the offence charged in the said information within the true intent and meaning of the Act of the General Assembly entitled "An Act against buying and selling offices," passed Oct. 19, 1792, in page 559, l8t vol. Eev. Code of 1819 ? 3. If the offence be within the said act is the information filed in this case a good and sufficient information? The first and second questions, for the sake of convenience, will be considered together. It is proper to premise that a general demurrer admits the truth of CHAP. I.J! COMMONWEALTH V. C^LLAGHAN. 7 all facts whicli are well pleaded ; there being sueh. a, demurrer in this, case, and the information distinctly alleging that the defendants, in giving their votes respectively, acted wickedly and corruptly, such wicked and corrupt motive, will be considered, throughojit as forming a. part of the case. The Court are unanimously of opinion that, the case as stated in th^ information is not within the true intent and meaning of the Act of Assembly referred to in the second question,. That ^ct, embraces two descriptions of cases : 1. The sale of an office or the deputation of an office ; 2. The giving a vote in appointing to an office or the deputa- tion of office. It would be within the latter description that this case would fall, if within either ; but the Court are decidedly of opinion that this case does not fall within this description, because the plain con- struction of the statute is that the penalties which it denounces are incurred only by those who receive or take, either dujectly or indirectly, any money, profit, etc., or the promise to have any money, profit, etc., to. their own use or for their own hemfit. In this case it appears from the information that the promise of each of the defendants to the other, which constituted the consideration of the vote of that other, and the VQte given in consequence of such promise, enured not to the benefit, of the defendants or either of them,, but to the benefit of others. If indeed it had been alleged in the. information that thc; persons, for whom the votes were given, were, if elected, to have held them upon anj' agree- ment, that the defendants; should in any degree participate in their profits or receive from the holders of them any benefit or advantage, tlie case would have been different, for then the, defendants would have received a profit indirectly^ and thus would have fallen within the sta,- tute ; but there is no such allegation. The Court being thus of opinion that this case was npt embraced by the statute, but at the same time considering that that system of crim- inal jurisprudence must be essentially defective which had provided no pnnishment for acts such as are charged in the information, and which merit the reprehension of all good men, were led to inquire whether the acts charged in the information did not constitute an offence at common law ; and they are of opinion that they do. In relation to those offences which rise to the grade of felony there is usually, particularly in the designation of them by name, an accuracy in the definition ; as, for example, murder, burglary, arson, etc., in each of which the term ex. vi termini imports the constituent of the offence ; but in the general classification of crimes whatever is not felony is misdemeanor. In relation to these, then, they are not only numerous but indefinitely diversified, comprehending every act which, whilst it falls below the grade; of felony, is either the omission of some- 8 CASES ON CEIMINAL LAW. [CHAP. I- thing commanded or the commission of something prohibited by law. As to these the law can do no more than lay down general principles, and it belongs to the courts of the country to apply those principles to the particular cases as they occur, and to decide whether they are or are not embraced by them. Thus the law, as a general proposition, prohibits the doing of any act which is contra bonos mores. The par- ticular acts which come up to this description it is impossible to include in any precise enumeration ; they must be decided as they occur, by applying this principle to them as a standard. Thus, again, it is now established as a principle that the incitement to commit a crime is itself ■ criminal under some circumstances. 6 East, 464 ; 2 East, 5. As for example, the mere attempt to stifle evidence, though the persuasion should not succeed. Cases of this kind may be as various as the vary- ing combinations of circumstances. To come more immediately to the present case, we hold it to be a sound doctrine that the acceptance of every office implies the tacit agreement on the part of the incumbent that he will execute its duties with diligence and fidelity. 5 Bac. Abr. 210, Offices and Officers, Letter M. We hold it to be an equally sound doctrine that all officers are punishable for corruption and oppressive proceedings, according to the nature and heinousness of the offence, either by indictment, attachment, action at the suit of the party aggrieved, loss of their offices, etc. 5 Bac. Abr. 212, Letter N. And further, that all wilful breaches of the duty of an office are for- feitures of it, and also punishable by fine (Co. Litt. 233, 234), because every office is instituted, not for the sake of the officer, but for the good of another or others ; and, therefore, he who neglects or refuses to answer the end for which his office was ordained should give way to others, and be punished for his neglect or oppressive execution. Let us apply these principles to the present case. The defendants were justices of the peace, and as such held an office of high trust and confidence. In that character they were called upon to vote for others, for offices also implying trust and confidence. Their duty required them to vote in reference only to the merit and qualifications of the officers, and yet upon the pleadings in this case it appears that they wickedly and corruptly violated their duty and betrayed the confidence reposed in them, by voting under the influence of a corrupt bargain or reciprocal promise, by which they had come under a reciprocal obliga- tion to vote respectively for a particular person, no matter how inferior the qualifications to their competitors. It would seem, then, upon these general principles that the ofl'ence in the information is indictable at common law. But there are authorities which apply partieularlj^ to thp case of justices. In 1 Bl. Com. 354, n. 17, Christian, it is said CHAP. I.] COMMONWEALTH V. LEACH. 9 if a magistrate abuse his authority from corrupt motives he is punish- able criminally by indictment or information. Again, where magistrates have acted partially, maliciously, or cor- ruptly, they are liable to an indictment. 1 Term Rep. 692 ; 1 Burr. 656 ; 3 Burr. 1317, 1716, 1786 ; 1 Wils. 7. An instance of their acting partially is that of their refusing a license from motives of partialitj-, the form of the indictment for whiclj is given in 2 Chitty's Crim. Law, 253. We are then of opinion, for the reasons and upon the authorities aforesaid, that the offence stated in the information is a misdemeanor at common law for which an information will lie, but that it is not within the statute referred to. In answer to the third question we are of opinion that the informa- tion is a good and suflBcient one. All which is ordered to be certified to the Superior Court of Law for Alleghany County. COMMONWEALTH v. LEACH, 1 Mass. 59 [1804]. The defendants were indicted in the Court of General Sessions for poisoning a cow, the property of A. B. Being convicted in that court they appealed to this, and at the last term thereof were found guiltj' by the verdict of the jury. The indictment was at common law. £Uss moved in arrest of judgment on the ground that the Court of Sessions had not jurisdiction in the case. He said that this was a common-law offence and so laid in the in- dictment ; that justices of the peace were oflBcers not known to the common law, but were created by statute, and of course all their powers were given by statute ; and that none of our statutes had given them jurisdiction over the offence charged in the indictment. And he cited 4 Com. Dig. Title, Just, of the Peace, B. 1, and 1 Salk. 406. Hooker, for the prosecution, conceded that justices of the peace were officers created by statute, and that their jurisdiction and powers were wholly dependent upon the statutes ; 2 Hawk, P. C. c. 8, § 13, etc. But he contended that their jurisdiction here was not limited to those offences which are expressly, and by name in our own statutes, made cognizable by them ; on the contrary, that it extended to aU cases in which justices of the peace in England had jurisdiction by any of the statutes of that country which were passed previous to the emigration of our ancestors, which were to be considered as a part of our common 10 CASES ON CKIMINAI-, LAW. [CHAP. I. law ; that this was. strongly implied ia the. Act. for establishing Courts of General Sessions of the Peace,, passed July 3, 1782 (stat. 1782 c. 14), by the first section of which. " they are empowered to hear and deter- mine all matters relative to the, conservation of the peace and the punishment of such offences as are cognizable by them at, common law, or by the acts and laws of the. legislature^ and to give judgment, etc In this act the term " common law " cannot, mean the common law of England, because justices of the peace there are not common-law oflScers ; it must,, therefore, mean our common law ; and on this sub- ject our common law must he. precisely what the statute law of England was at the time of the emigration, of our ancestors from that country. The statutes which were previous to that time enacted in England, and which define or describe the authorities, powers, and jurisdiction of justices of the peace, give to them expressly cognizance of divers oflences which were offences at common law, among which are tres- passes. The present indictment is for a trespass, and tlierefore within the jurisdiction of the Sessions. 2 Hawk. c. 8, §§ 33, 38, 39 ; 3 Burr. 1320, Rex v. Rispall ; 1 Lev. 139, Eex v. Sommers, et al. Bliss, in reply, conceded that if the statute of Ed. 3 which gives jurisdiction to justices of the peace in England is adopted and makes part of our common law, the objection to the indictment was un- founded ; otherwise that it ought to prevaill Thacheb, J. I am of opinion that the statutes of 1 Ed. III. c. 16 and 34 Ed. III. c. 1, respecting the jurisdiction and powers of justices of the peace, have been adopted, used, and approved here, and are to be considered as part of our common law ; that the offence charged in the indictment is cognizable by the Court of Sessions^, and, therefore, that judgment ought not to be arrested,. Sedgwick, J. Justices of th& peace, whether acting individually or in Sessions, are creatures of statute, and their powers are given them by the statutes. 2 Hawk. 6,1, 8. It appears to me, generally speaking, that the English statutes which were in force at the time of the emigra- tion of our ancestors from that, country are common law here. The statutes of Ed. III. have been adopted and practised upon here, and are therefore to be considered as part of our common law. This is decisive of the question before the court,, as the offence charged in the indictment is, by those statutes, within the jurisdiction of the Sessions. Strong, J. I have no doubt upon the question. Justices of the peace have exercised this authority for a long time ; certainly as far back as the memory of any of us reaches, probably much further, which affords a strong presumption that the statutes of Ed. III. have been considered as common law here. Usage in like points has always been taken as evidence of what is our own law, — common law. CHAP. L] commonwealth V. WAKKEN. 11 Dana, C. J. The term " common law" ought not, to be construed so strictly as is contended for by the counsel for the defendant. Gen- erally when an English statute has been made in amendment of the common law of England, it is, here to he considered as part of our common law. For instance, the statute of 7 Ja. I. c. 5 and 21 Ja. L c. 12, giving double costs to an officer who is sued out of his countj', for anj'thing done by him in the execution of his office, being made in amendment of the common law, is adopted here and isi part of our com- mon law. So, also, the statute of Anne respecting negotiable notes. Usage of the country establishes and makes the common law of the country. No one, probably, can recollect the period when the Courts of Sessions have not exercised the authority which is now excepted against. Justices of the peace have this authority expressly given them in their commissions. It appears to me that they have uniformly exer- cised it, and that without being questioned, and therefore that the law is to be considered as settled. jPer cur. unanimouslj-. Motion overruled. COMMONWEALTH v. WAEEEN, 6 Mass. 72 [1809]. An indictment found by the grand jury, at the last April term at Ipswich, against the defendant, states that he being, an evil-disposed person, and contriving and intending one Benjamin Adams to deceive, cheat, and defraud, falsely pretended and affirmed to the said Adams, that his, the defendant's name was "William Waterman ; that he lived in Salem, and there kept a grocery store ; that he wished to purchase, on credit, of Adams, fifty pairs of shoes, giving his own note as security therefor ; that Adams, giving credit to his false pretences and affirma- tions, sold him the shoes, and took as security the note of the defend- ant, subscribed by him with the name of William Waterman. Upon conviction, the defendant moved in arrest of judgment, on the ground that the facts charged in the indictment and of which he had been found guilty, are a private injury only, and do not amount to a public offence. /Story, ia support of the motion, cited 2 East's P. C. 819. Paesons, C. J. At common law, it is an indictable offence to cbeat any man of his money, goods, or chattels, by using false weights or false measures ; and by the English statute of 33 H. 8, c. 1, passed before the settlement of this country,, and considered here as a part of our common law, cheating by false tokens is made an indictable 12 CASES ON CRIMINAL LAW. [CHAP. I. offence. The object of the law is to protect persons who in their dealings use due diligence and precaution, and not persons who suffer through their own credulity, carelessness, or negligence. But as pi"udent persons may be overreached by means of false weights, meas- ures, or tokens, or by a conspiracy, where two or more persons con- federate to cheat, frauds eflFected in either of these ways are punishable by indictment. And by an English statute of 30 G-. 2, c. 24, which is not in force in this State, the same prosecution has been extended to cheating by false pretences. But if a man will give credit to the false afHrmation of another and thereby suffer himself to be cheated, he may pursue a civil remedy for the injury, but he cannot prosecute by indictment. If, therefore, Adams was cheated out of his shoes by the defendant, without using false weights, measures, or tokens, and by no conspiracy, but only by his credulity in believing the lies of the defendant, although he may have an action against the defendant to recover his damages, yet this indictment cannot be maintained, whatever false pretences the defendant may have wickedl}' used. And it appears that Adams was imposed on by the gross lies of the defendant. He pretended and affirmed that his name was "William Waterman, and that he was a grocer in good credit in Salem. Adams, unfortunately believing him, sold and delivered him the shoes on credit ; and when the defendant gave his note as security', he used his false name. We see here no conspiracy, for the defendant was alone in the fraud ; and no false tokens to induce a credit ; and as for false weights or measures, there is no pretence. We cannot, therefore, consider the facts stated in the indictment (however injurious they were to Adams) as constituting a public indictable offence. Judgment arrested. Bid/well, Attorney-General, for the Commonwealth. COMMONWEALTH v. WARREN and JOHNSON, 6 Mass. 73 [1809]. The defendants were indicted at the last April term at Ipswich, for a conspiracy to cheat one Moses Putnam of a large quantity of shoes ; and the indictment charged that, in pursuance of the conspiracy, they falsely affirmed that the defendant Warren's name was William Lane ; that he lived at Gloucester, and carried on the business of making shoes ; that through disappointment, he had not by him the number of CHAP. T.] COMMONWEALTH V. -WAEEEN ET AL. 13 shoes he then wanted for a shipment to the Havanna, and was de- sirous of purchasing on his own credit a quantity from Putnam ; that Putnam trusting to their false and fraudulent affirmations, sold and delivered to them a quantitj' of shoes, taking Warren's notes for secu- rity, which he signed with the assumed name of William Lane. The defendants pleaded not guilty, and upon trial before Sewall, J., were found guiltj', subject to the opinion of the court upon evidence as reported by the judge ; they moving for a new trial, on the ground that the verdict, as against Johnson, was against evidence ; and if he ought to be acquitted, that Warren ought to have been acquitted, as one person alone cannot be guilty of a conspiracy. It was proved at the trial, that the defendants went together in a chaise to Putnam's ; that Warren went into the shop, leaving Johnson in the chaise ; that in Johnson's absence Warren made the false affir- mations, and obtained a delivery of a parcel of shoes ; that Warren told Putnam that Johnson was a man who lived with him ; that John- son then came into the shop, which was small, and was there when Warren made and signed the notes by the name of William Lane ; but the witness could not testify that Johnson knew the tenor of the notes ; that Warren went the next day to Putnam's shop without Johnson, and under the same feigned name fraudulently purchased two hundred pairs of shoes more ; that Johnson had one hundred pairs of the shoes that were thus sold bj' Putnam to Warren, and by the name of WiUiam Smith sold them to one Chase. The motion for a new trial was shortly argued by Story for the de- fendants, and Sidwell, Attorney-General, for the government. Paesons, C. J. The gist of the offence is the conspiracy to cheat Putnam of his shoes, and the defendants might lawfullj' have been convicted, if the jury were satisfied, on legal evidence, that they were guilty of the confederacy charged, although no act done in pursuance of it had been proved. But Warren's intent to defraud Putnam is not denied, and the ques- tion is, whether the jury could lawfully infer that Johnson was an associate and confederate in the same fraudulent design. He went with Warren ; he was with him in the shop when he received the shoes, and when he gave the fictitious securities. If Johnson gave no evi- dence to explain his connection with Warren, whence the jury might infer that it was innocent, they might infer that he was privy to War- Ten's want of credit, and that he had obtained the shoes fraudulently. If the evidence had rested here the jury might have pressed it too far ; but when it was proved that he received a hundred pairs of shoes, and sold them under a fictitious name, the jury might well infer that, as he had his share in the plunder, he was an associate in the villany by 14 CASES ON CEIMINAL LAW. [CHAP. H. which it was Obtained. We cannot therefore say that the verdict as to Johnson is against evidence ; but the presumption against him is so strong, that the jury were well warranted to infer his guilt in the con- spiracy charged. Judgment must he entered on the verdict. ^ As TO Admiralty Jtibisdiction before the Revolution, see Charge to the Grand Jury, 1 Quincy, 310 (1789); ScoUaj i). Dunn, id. 74; Advocate-General w. Hancock, id. 457. CHAPTER II. Ckiminal Law of the Fedeeal Government. Section 1. — No Common 'Law, operating propeio vigoke, in the Federal System. UNITED STATES v. HUDSON et al., 7 Ckanch, 32 [1812]. This was a case certified from the Circuit Court for the District of Connecticut, in which, upon argument of a general demurrer to an in- dictment for a libel on the President and Congress of the United States, contained in the " Connecticut Courant " of the 7th of May, 1806, charg- ing them with having in secret voted two millions of dollars as a pres- ent to Bonaparte for leave to make a treaty with Spain, the judges of that court were divided in opinion upon the question, whether the Cir- cuit Court of the United States had a common-law jurisdiction in cases of libel. PinJcney, Attorney-General, in behalf of the United States, and Dana, for the defendants, declined arguing the case. The Court having taken time to consider, the following opinion was delivered (on the last day of the term, all the judges being present) by Johnson, J. The only question which this case presents is, whether the Circuit Courts of the United States can exercise a common-law jurisdiction in criminal cases. We state it thus broadly because a decision on a case of libel will apply to every case in which jurisdiction is not vested in those courts by statute. Although this question is brought up now for the first time to be decided b}' this court, we consider it as having been long since settled in public opinion. In no other case for many years has this jurisdic- SECT. I.J TTNITBD STATES V. HUDSON ET AL. IS tion been asserted ; and the general acquiescence of legal men shows the prevalence of opinion in favor of the negative of the proposition. The course of reasoning which leads to this conclusion is simple, obvious, and admits of but little illustration. The powers of the general government are made up of concessions from the several States, — whatever is not expressly given to the former, the latter expressly reserve. The judicial power of the United States is a constituent part of those concessions, — that power is to be exercised by courts orga- nized for the purpose, and brought into existence by an effort of the legislative power of the Union. Of all the courts which the United States may, under their general powers, constitute, one only, the Su- preme Court, possesses jurisdiction derived immediately from the Con- stitution, and of which the legislative power cannot deprive it. All other courts created by the general government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general government will authorize them to confer. It is not necessary to inquire whether the general government, in any and what extent, possesses the power of conferring on its courts a jurisdiction in cases similar to the present. It is enough that such jurisdiction has not been conferred by any legislative act, if it does not result to those courts as a consequence of their creation. And such is the opinion of the majority of this court ; for the power which Congress possess to create courts of inferior jurisdiction neces- sarily implies the power to limit the jurisdiction of those courts to par- ticular objects ; and when a court is created and its operations confined to certain specific objects, with what propriety can it assume to itself a jurisdiction much more extended, in its nature very indefinite, appli- cable to a great variety of subjects, varying in every State in the Union, and with regard to which there exists no definite criterion of distribution between the district and Circuit Courts of the same district? The only ground on which it has ever been contended that this jurisdiction could be maintained is, that upon the formation of any political body an implied power to preserve its own existence and pro- mote the end and object of its creation necessarily results to it. But without examining how far this consideration is applicable to the pecu- liar character of our Constitution, it may be remarked that it is a prin- ciple by no means peculiar to the common law. It is coeval probably with the first formation of a limited government, belongs to a system of universal law, and may as well support the assumption of many other powers as those more peculiarly acknowledged by the common law of England. 16 CASES ON CRIMINAL LAW. [CHAP. H. But if admitted as applicable to the state of things in this country, the consequence would not result from it which is here contended for. If it may communicate certain implied powers to the general govern- ment, it would not follow that the courts of that government are vested with jurisdiction over any particular act done by an individual in sup- posed violation of the peace and dignity of the sovereign power. The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence. Certain implied powers must necessarily result to our courts of jus- tice from the nature of their institution ; but jurisdiction of crimes against the State is not among those powers. To fine for contempt, imprison for contumacy, enforce the observance of order, etc., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others ; and so far our courts no doubt possess powers not immediately derived from statute ; but all exercise of criminal jurisdiction in common-law cases we are of opinion is not within their implied powers. UNITED STATES v. COOLIDGE, 1 Wheaton, 415 [1816]. This was an indictment in the Circuit Court for the District of Mas- sachusetts, against the defendants, for forciblj' rescuing a prize, which had been captured and taken possession of by two American priva- teers. The captured vessel was on her way, under the direction of a prize-master and crew, to the port of Salem, for adjudication. The indictment laid the offence as committed upon the high seas. The question made was, whether the Circuit Court has jurisdiction over common-law offences against the United States, on which the judges of that court were divided in opinion. The Attorney-G-eneral stated that he had given to this case an anxious attention, — as much so, he hoped, as his public duty, under whatever view of it, rendered necessary ; that he had also examined the opinion of the Court, delivered at February term, 1813, in the case of the United States v. Hudson and Goodwin ; that considering the point as decided in that case, whether with or without argument, on the part of those who had preceded him as the representative of the government in this court, he desired respectfully to state, without say- ing more, that it was not his intention to argue it now. SECT. I.] UNITED STATES V. BEVANS. 17 Stoey, J. I do not take the question tq be settled by that case. Johnson, J. I consider it to be settled by the authority of that case. Washington, J. Whenever counsel can be found ready to argue it, I shall divest myself of all prejudice arising from that case. Livingston, J. I am disposed to hear an argument on the point. This case was brought up for that purpose, but until the question is re- argued, the case of the United States v. Hudson and Goodwin must be taken as law. Johnson, J., delivered the opinion of the Court. Upon the question now before the court, a difference of opinion has existed, and stiU exists, among the members of the court. We should, therefore, have been willing to have heard the question discussed upon solemn argument. But the Attorney-General has declined to argue the cause, and no counsel appears for the defendant. Under these cir- cumstances, the Court would not choose to review their former decision in the case of the United States v. Hudson and Goodwin, 7 C. 32, or draw it into doubt. They will therefore certify an opinion to the Cir- cuit Court in conformity with that decision. Certificate for the defendant. UNITED STATES v. BEVANS,^ 3 Wheaton, 336. The defendant, William Bevans, was indicted for murder in the Circuit Court for the District of Massachusetts. The indictment was founded on the 8th section of the act of Congress of the 30th of April, 1790, c. 9, and was tried upon the plea of not guilty. At the trial, it appeared in evidence that the offence charged in the indictment was committed by the prisoner on the 6th day of November, 1816, on board the United States ship of war Independence, rated a ship of the line of seventy-four guns, then in commission and in the actual service of the United States, under the command of Commodore Bainbridge. At the same time, William Bevans was a marine duly enlisted and in the service of the United States, and was acting as sentry, regularly posted on board of said ship, and Peter Leinstrum (the deceased, named in the indictment) was at the same time duly enlisted and in the service of the United States as cook's mate on board of said ship. The said ship was at the same time lying at anchor in the main channel 1 See also United States ». WUtberger, 5 Wheaton, 76. 2 18 CASES ON CEIMINAL LAW. [CHAP. II. of Boston harbor, in waters of a sufficient depth at all times of tide for ships of the largest class and burden, and to which there is at all times a free and unobstructed passage to the open sea or ocean. The nearest land at low-water mark to the position where the said ship then lay, on various sides, is as follows, namely : The end of the long wharf, so called, in the town of Boston, bearing southwest by south half south at the distance of half a mile ; the western point of Williams's Island, bearing north by west, at the distance between one quarter and one third of a mile ; the navy-yard of the United States at Charlestown, bearing northwest half west, at the distance of three quarters of a mile ; and Dorchester Point, so called, bearing south southeast, at the dis- tance of two miles and one quarter, and the nearest point of Governor's Island, so called (ceded to the United States), bearing southeast half east, at the distance of one mile and three quarters. To and beyond the position or place thus described, the civil and criminal processes of the courts of the State of Massachusetts have hitherto constantly been served and obej'ed. The prisoner was first apprehended for the of- fence in the district of Massachusetts. The jury found a verdict that the prisoner, William Bevans, was guilty of the offence as charged in the indictment. Upon the foregoing statement of facts, which was stated and made under the direction of the Court, the prisoner, by his counsel, after ver- dict, moved for a new trial ; upon which motion two questions occurred, which also occurred at the trial of the prisoner. 1st. Whether, upon the foregoing statement of facts, the offence charged in the indictment and committed on board the said ship as aforesaid was within the juris- diction of the State of Massachusetts, or of any court thereof. 2d. Whether the offence charged in the indictment and committed on board the said ship as aforesaid was within the jurisdiction or cogni- zance of the Circuit Court of the United States for the District of Massachusetts. Upon which questions, the judges of the said Circuit Court were, at the trial and upon the motion for a new trial, opposed in opinion ; and thereupon, upon the request of the district-attornej' of the United States, the same questions were ordered by the said court to be certified under the seal of the court to the Supreme Court, to be finallj' decided. Webster, for the defendant. The Attorney- General and Wheaton, contra. Makshall, C. J., delivered the opinion of the Court. The question proposed by the Circuit Court, which wiU be first con- sidered, is, — Whether the offence charged in this indictment was, according to the statement of facts which accompanies the question, " within the SECT. I.] TINITED STATES V. BEVANS. 19 jurisdiction or cognizance of the Circuit Court of the United States for the District of Massachusetts." The indictment appears to be founded on the 8th section of the " Act for the punishment of certain crimes against the United States." That section gives the courts of the Union cognizance of certain offences committed on the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular State. Whatever may be the constitutional power of Congress, it is clear that this power has not been so exercised, in this section of the act, as to confer on its courts jurisdiction over any offence committed in a river, haven, basin, or bay, which river, basin, or bay is within the jurisdiction of any particular State. What, then, is the extent of jurisdiction which a State possesses? We answer without hesitation, the jurisdiction of a State is co-exten- sive with its territory, co-extensive with its legislative power. The place described is unquestionably within the original territory of Massachusetts. It is then within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded to the United States. It is contended to have been ceded by that article in the constitution which declares that "the judicial power shall extend to all cases of admiralty and maritime jurisdiction." The argument is, that the power thus granted is conclusive ; and that the murder committed by the prisoner is a case of admiralty and maritime jurisdiction. Let this be admitted. It proves the power of Congress to legislate in the case ; not that Congress has exercised that power. It has been argued, and the argument in favor of as well as that against the propo- sition deserves great consideration, that courts of common law have concurrent jurisdiction with courts of admiralty over murder com- mitted in bays which are inclosed parts of the sea ; and that for this reason the offence is within the jurisdiction of Massachusetts. But in construing the act of Congress, the Court believes it to be unnecessary to pursue the investigation which has been so well made at the bar re- specting the jurisdiction of these rival courts. To bring the offence within the jurisdiction of the courts of the Union it must have been committed in a river, etc., out of the jurisdic- tion of any State. It is not the offence committed, but the bay in which it is committed, which must be out of the jurisdiction of the State. If then it should be true that Massachusetts can take no cog- nizance of the offence, yet unless the place itself be out of her juris- diction. Congress has not given cognizance of that offence to its courts. If there be a common jurisdiction, the crime cannot be punished in the courts of the Union. Can the cession of all cases of admiralty and maritime jurisdiction 20 CASES ON CRIMINAL LAW. £CHAP. II. be construed into a, cession of the waters on which those cases may arise ? This is a question on which the Court is incapable of feeling a doubt. The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction. It is obviously designed for other purposes. It is in the 8th section of the 2d article we are to look for cessions of territory and of exclusive jurisdiction. Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased by the consent of the legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings. It is observable that the power of exclusive legislation (which is jurisdiction) is united with cession of territory, which is to be the free act of the States. It is diflScult to compare the two sections together without feeling a conviction, not to be strengthened by any commen- tary on them, that in describing the judicial power the framers of our constitution had not in view any cession of territory, or, which is essen- tially the same, of general jurisdiction. It is not questioned that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction is in the government of the Union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not j'et given away. The residuary powers of legislation are stUl in Massa- chusetts. Suppose, for example, the power of regulating trade had not been given to the general government. Would this extension of the judicial power to all cases of admiralty and maritime jurisdiction have divested Massachusetts of the power to regulate the trade of her baj' ? As the powers of the respective governments now stand, if two citizens of Massachusetts step into shallow water when the tide flows and fight a duel, are they not within the jurisdiction, and punishable by the laws, of Massachusetts? If these questions must be answered in the affirmative, and we believe they must, then the bay in which this mur- der was committed is not out of the jurisdiction of a State, and the Circuit Court of Massachusetts is not authorized, by the section under consideration, to take cognizancie of the murder which has been committed. It may be deemed within the scope of the question certified to this Court to inquire whether any other part of the act has given cogni- zance of this murder to the Circuit Court of Massachusetts. The 3d section enacts " that if any person or persons shall, with- in any fort, arsenal, dock-yard, magazine, or in any other place, or SECT. I.] UNITED STATES V. BEVANS. 21 (district of country under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or per^ sons, on being thereof convicted, shall suffer death." Although the bay on which this murder was committed might not be out of the jurisdiction of Massachusetts, the ship of war on the deck of which it was committed, is, it has been said, " a place within the sole and exclusive jurisdiction of the United States," whose courts may consequently take cognizance of the offence. That a government which possesses the broad power of war, which " may provide and maintain a navy," which " may make rules for the government and regulation of the land and naval forces," has power to punish an offence committed by a marine, on board a ship of war, wherever that ship may lie, is a proposition never to be questioned in this court. On this section, as on the 8th, the inquiry respects not the extent of the power of Congress, but the extent to which that power has been exercised. The objects with which the word "place" is associated are all, in their nature, fixed and territorial. A fort, an arsenal, a dock-yard, a magazine, are all of this character. When the sentence proceeds with the words, "or in any other place or district of country under the sole and exclusive jurisdiction of the United States," the construction seems irresistible, that by the words "other place" was intended another place of a similar character with those previously enumerated and with that which follows. Congress might have omitted, in its enumeration, some similar place within its exclusive jurisdiction, which was not comprehended by any of the terms employed, to which some other name might be given; and therefore the words "other place" or " district of country " were added ; but the context shows the mind of the legislature to have been fixed on territorial objects of a similar pharacter. This construction is strengthened by the fact, that at the time of passing this law, the United States did not possess a single ship of war. It may therefore be reasonably supposed that a provision for the punishment of crimes in the navy might be postponed until some provision for a navy should be made. While taking this view of the subject, it is not entirely unworthy of remark, that afterwards, when a navy was created and Congress did proceed to make rules for its regulation and government, no jurisdiction is given to the courts of the United States, of anj' crime committed in a ship of war, wherever it may be stationed. Upon these reasons the court is of opinion that a murder committed on board a ship of war, lying within the harbor of Boston, is not cognizable in the Circuit Court for the District of Massachusetts ; which opinion is to be certified to the Court. 22 CASES ON CRIMINAL LAW. [CHAP. H. The opinion of the Court on this point is believed to render it un- necessary to decide the question respecting the jurisdiction of the State court in that case. CeHificate accordingly. Section 2. Express Adoption of a Body op Local Law, Includ- ing ITS Common Law. An Act for establishing the temporary and permanent seat of the Government of the United States. (July 16, 1790.) Section 1. Be it enacted by the Senate and House of Represen- tatives of the United States of America in Congress assembled, That a district of territory, not exceeding ten miles square, to be located as hereafter directed on the river Potomac, at some place between the mouths of the Eastern Branch and Connogochegue, be, and the same is hereby accepted for the permanent seat of the government of the United States. Provided nevertheless, That the operation of the laws of the State within such district shall not be affected by this accept- ance, until the time fixed for the removal of the government thereto, and until Congress shall otherwise by law provide. An Act concerning the District of Columbia. (Feb. 27, 1801.) Section 1. Be it enacted by the Senate and House of Representa- tives of the United States of America in Congress assembled, That the laws of the State of Virginia, as they now exist, shall be and continue in force in that part of the District of Columbia, which was ceded by the said State to the United States, and by them accepted for the per- manent seat of government ; and that the laws of the State of Mar}-- land, as they now exist, shall be and continue in force in that part of the said district, which was ceded by that State to the United States, and by them accepted as aforesaid.^ Section 3. Tacit Adoption of the Common Law by Reference. UNITED STATES v. CARLL, 105 U. S. 611 [1881]. Certificate of division in opinion between the judges of the Circuit Court of the United States for the Southern District of New York. This was an indictment, found in the Circuit Court, on section 5431 1 See Bhodes v. Bell, 2 How. 897. SECT. ni.J UNITED STATES V. CAELL. 23 of the Revised Statutes, by which it is enacted that " every person ■who, with intent to defraud, passes, utters, publishes, or sells any falsely made, forged, counterfeited, or altered obligation or other secu- rity of the United States, shall be punished by a fine of not more than five thousand dollars and by imprisonment at hard labor not more than fifteen years." Each count of the indictment alleged that the defendant, at a certain time and place, " feloniously, and with intent to defraud the Bank of the Metropolis, which said bank is a corporation organized under the laws of the State of New York, did pass, utter, and publish upon and to the said Bank of the Metropolis a falsely made, forged, counterfeited, and altered obligation and security of the United States " (which was set forth according to its tenor), against the peace and contrary to the form of the statute. The defendant, having been tried before Judge Benedict, and con- victed by the jury under instructions which required them to be satis- fied of the facts alleged and that the defendant, at the time of uttering the obligations, knew them to be false, forged, counterfeited, and altered, moved in arrest of judgment for the insufficiency of the indict- ment. At the hearing of this motion before Judge Blatchford and Judge Benedict, they were divided in opinion upon the question, stated in various forms in their certificate, but in substance this : Whether the indictment, setting forth the offence in the language of the statute, without further alleging that the defendant knew the instruments to be false, forged, counterfeited, and altered, was sufficient, after verdict, to warrant judgment thereon. The Solicitor-General for the United States. Mr. William O. Roberts for the defendant. Me. Justice Gkat, after stating the case, delivered the opinion of the Court. In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished ; and the fact that the statute in question, read in the light of the common law and of other statutes on the like matter, en- ables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessar\' to bring the case within that intent. United States v. Cruikshank, 92 U. S. 542 ; United States v. Simmons, 96 id. 360 ; Commonwealth v. Clifford, 8 Cush. (Mass.) 215 ; Commonwealth v. Bean, 11 id. 414'; Commonwealth v. Bean, 14 Gray (Mass.), 52 ; Commonwealth v. Fil- burn, 119 Mass. 297. 24 CASES ON CRIMINAL LAW. [CHAP. 11. The language of the statute on which this indictment is founded in- cludes the case of every person who, with intent to defraud, utters any forged obligation of the United States. But the offence at which it is aimed is similar to the common-law offence of uttering a forged or counterfeit bill. In this case, as in that, knowledge that the instru- ment is forged and counterfeited is essential to make out the crime ; and an uttering, with intent to defraud, of an instrument in fact coun- terfeit, but supposed by the defendant to be genuine, though within the words of the statute, would not be within its meaning and object. This indictment, by omitting the allegation contained in the indict- ment in United States v. Howell (11 Wall. 432), and in all approved precedents, that the defendant knew the instrument which he uttered to be false, forged, and counterfeit, fails to charge him with any crime. The omission is of matter of substance, and not a " defect or imperfec- tion in matter of form onlj-," within the meaning of section 1025 of the Revised Statutes. By the settled rules of criminal pleading and the authorities above cited, therefore, the question of the suflSciency of the indictment must be Answered in the negative. Section 4. Summary Constitutional and Statutoet Adoption op Principles op Law op Admiralty. " The judicial power shall extend . . . to all cases of admiralty and maritime jurisdiction." — Constitution of the United States, Art. III., §2. UNITED STATES v. COOMBS,i 12 Pet. 72 [1838]. The case is stated in the opinion of the Court. Sutler (Attorney-General) , for the United States. No counsel contra. Story, J., delivered the opinion of the Court. This is a case certified upon a division of opinion of the judges of the Circuit Court for the Southern District of New York. The case as stated in the record is as follows : — Lawrence Coombs was indicted under the 9th section of the act en- titled " An Act more effectually to provide for the punishment of cer- tain crimes against the United States, and for other purposes," approved 1 See United States v. Bevane, above. SECT. IV.] tTNITED STATES V. COOMBS. 25 the 3d of March, 1825, for having, on the 21st of November, 1836, feloniously stolen at Eockaway Beach, in the Southern District of New York, one trunk of the value of five dollars, one package of yarn of the value of five dollars, one package of silk of the value of five dollars, one roll of ribbons of the value of five dollars, one package of muslin of the value of five dollars, and six pairs of hose of the value of five dollars, which said goods, wares, and merchandise belonged to the ship Bristol, the said ship then being in distress, and cast away on a shoal of the sea, on the coast of the State of New York, within the Southern Dis- trict of New York. On this indictment the prisoner was arraigned, and plead not guilty, and put himself upon his country for trial. It was admitted that the goods mentioned in the indictment, and which belonged to the said ship Bristol, were taken above high-water mark, upon the beach, in the County of Queens ; whereupon the ques- tion arose whether the offence committed was within the jurisdiction of the court, and on this point the judges were opposed in opinion. Which said point, upon which the disagreement has happened, is stated above, under the direction of the judges of said court, at the re- quest of the counsel for the United States and Lawrence Coombs, par- ties in the cause, and ordered to be certified unto the Supreme Court at the next session, pursuant to the act in such case made and provided. The 9th section of the Act of 1825, c. 276, on which the indictment in the present case is founded, is in the following words : " That if any person shall plunder, steal, or destroy any money, goods, merchandise, or other eflfects from, or belonging to, any ship or vessel, or boat or raft which shall be in distress, or which shall be wrecked, lost, stranded, or cast away upon the sea, or upon any reef, shoal, bank, or rocks of the sea, or in any place within the admiralty or maritime jurisdiction of the United States ; or if any person or persons shall wilfiiUy ob- struct the escape of any person endeavoring to save his or her life from such ship or vessel, boat or raft, or the wreck thereof; or if any person shall hold out or show any false light or lights, or extinguish any true light, with intention to bring any ship or vessel, boat or raft, being or sailing upon the sea, into danger or distress or shipwreck ; every per- son so offending, his or their counsellors, aiders, or abettors, shall be deemed guilty of felony ; and shall on conviction thereof, be punished by a fine, not exceeding $5,000 and imprisonment and confinement at hard labor, not exceeding ten years, according to the aggravation of the oflfence." 3 Story's Laws of the U. S. 2,001. The indictment, as has been already stated, charges the offence to have been committed on Eockaway Beach, and as is admitted above high-water mark. Before we proceed to the direct consideration of the true import and interpretation of this section, it seems highly important, if not indis- 26 CASES ON CRIMINAL LAW. [CHAP. II. pensable, to say a few words as to the constitutional authority of Congress to pass the same. There are two clauses of the Constitution which may properly come under review in examining the constitutional authority of Congress over the subject-matter of the section. One is the delegation of the judicial power, which is declared to extend "to all cases of admiralty and maritime jurisdiction." The other is the delegation of the power " to regulate commerce with foreign nations, and among the several States," and, as connected with these, the power to make all laws which shall be necessary and proper for canying into execution the foregoing power, etc. In regard to the first clause, the question which arises is, What is the true nature and extent of the admiralty jurisdiction ? Does it, in cases where it is dependent upon locality, reach beyond high- water mark? Our opinion is, that in cases purely dependent upon the locality of the act done, it is limited to the sea and to tide-waters as far as the tide flows, and that it does not reach beyond high-water mark. It is the doctrine which has been repeatedly asserted by this court, and we see no reason to depart from it. Mixed cases may arise, and indeed often do arise, where the acts and services done are of a mixed nature, as where salvage services are performed partly on tide-waters and partly on the shore, for the preservation of the property saved, in which the admiralty jurisdiction has been constantly exercised to the extent of decreeing salvage. That this is a rightful exercise of jurisdiction by our Courts of Admiralty was assumed as the basis of much of the rea- soning of this court in the case of the American Insurance Company v. Canter, 1 Pet. 511. It has also been asserted and enforced by Lord Stowell on various occasions, and especial! j' in the case of The Au- gusta or Eugenie, 1 Hagg. Adm. Rep. 16 ; The Jonge Nicholas, 1 Hagg. Adm. Rep. 201 ; The Ranger, 2 Hagg. Adm. Rep. 42 ; and The Happy Return, 2 Hagg. Adm. Rep. 198. See also. The Henry, of Philadelphia, 1 Hagg. Adm. Rep. 264 ; The Vesta, 2 Hagg. Adm. Rep. 189 ; The Salecia, 2 Hagg. Adm. Rep. 262. And this has been done, not only in conformity to the doctrines of the maritime law, but also to what has been held in the courts of common law. For it has been laid down that if the libel is founded upon one single continued act, which was principally upon the sea, though a part was upon land ; as if the mast of a ship be taken upon the sea, though it be afterwards brought ashore, no prohibition lies. Com. Dig. Adm. F. S. ; 1 Rolle's Adm. 533, C. 13 ; Com. Dig. Adm. E. 12. It is true that it has been said that the admiralty has not jurisdiction of the wreck of the sea. 3 Black. Com. 106, 107. But we are to understand by this, not what in SECT. IV.] TJNITED STATES V. COOMBS. 2? the sense of the maritime and commercial law is deemed wreck or shipwrecked property, but " wreck of the sea" in the purely technical sense of the common law, and constituting a royal franchise and a part of the revenue of the Crown in England, and often granted as such a royal franchise to lords of manors. How narrow and circumscribed this sort of wreck is, according to the modern doctrines of the courts of common law, may be perceived by the statement of it in Mr. Justice Blackstone's Commentaries (1 Black. Com. 290 to 317), who also shows that it is this and this only which is excluded from the admi- ralty jurisdiction. Lord Stowell manifestly acted upon the same doc- trine in the case of The Augusta or Eugenie, 1 Hagg. Adm. Rep. 16 ; 3 Black. Com. 106, 107. In our judgment the authority of Congress under this clause of the Constitution does not extend to punish offences committed above and beyond high-water mark. But we are of opinion that under the clause of the Constitution giving power to Congress ' ' to regulate commerce with foreign nations and among the several States," Congress possessed the power to punish offences of the sort which are enumerated in the 9 th section of the Act of 1825 now under consideration. The power to regulate com- merce includes the power to regulate navigation as connected with the commerce of foreign nations and among the States. It was so held and decided by this court, after the most deliberate consideration, in the case of Gibbons v. Ogden, 9 Wheat 189-198. It does not stop at the mere boundary line of a State, nor is it confined to acts done on the water, or in the necessary course of the navigation thereof. It ex- tends to such acts done on land which interfere with, obstruct, or pre- vent the due exercise of the power to regulate commerce and navigation mth foreign nations and among the States. Any offence which thus interferes with, obstructs, or prevents such commerce and navigation, though done on land, may be punished by Congress, under its general authority to make all laws necessary and proper to execute their delegated constitutional powers. No one can doubt that the various offences enumerated in the 9th section of the Act are all of a nature which tend essentially to obstruct, prevent, or destroy the due opera- tions of commerce and navigation with foreign nations and among the several States. Upon the whole our opinion is that it be certified to the Circuit Court for the Southern District of New York that the offence committed was* within the jurisdiction of that court. 28 CASES ON CBIMINAL LAW. [CHAP. n. Section 5. Summary Adoption in Whole or in Part of Other Existing Ststems of Law. (Law of Nations.) " The Congress shall have power ... to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." — Constitution of the United States, Art. I. § 8. UNITED STATES v. SMITH, 5 Wheaton, 153 [1820]. This was an indictment for piracy against the prisoner, Thomas Smith, before the Circuit Court of Virginia, on the Act of Congress of the 3d of March, 1819 (3 Stats, at Large, 513). The jury found a special verdict, as follows : " We, of the jurj', find that the prisoner, Thomas Smith, in the month of March, 1819, and others were part of the crew of a private armed vessel, called ' The Creollo ' (commissioned by the government of Buenos Ayres, a colony then at war with Spain), and lying in the port of Margaritta ; that in the month of March, 1819, the said prisoner and others of the crew mutinied, confined their officer, left the vessel, and in the said port of Margaritta seized bj' violence a vessel called 'The Irresistible,' a private armed vessel lying in that port, commissioned by the govern- ment of Artigas, who was also at war with Spain ; that the said prisoner and others, having so possessed themselves of the said vessel ' The Irresistible,' appointed their officers, proceeded to sea on a cruise, with- out any documents or commission whatever, and while on that cruise, in the month of April, 1819, on the high seas, committed the offence charged in the indictment, b}' the plunder and robbery of the Spanish vessel therein mentioned. If the plunder and robbery aforesaid be piracy under the act of the Congress of the United States, entitled ' An Act to protect the commerce of the United States, and punish the crime of piracy,' then we find the said prisoner guilty ; if the plunder and robbery above stated be not piracy under the said act of Congress, then we find him not guilty." The Circuit Court divided on the question whether this be piracy as defined by the law of nations, so as to be punishable under the Act of Congress of the 3d of March, 1819, and thereupon the question was certified to this court for its decision. The Attorney- General, for the United States. Webster, contra. SECT, f.] , TTKITBD STATES V. SMITH, 29 Story, J., delivered the opinion of the Court. The act of Congress upon which this indictment is founded provides, " That if any person or persons whatsoever, shall, upon the high seas, commit the crime of piracy, as defined by the law of nations, and such oflFender or offenders shall be brought into, or found in the United States, every such offender or ofl'enders shall, upon conviction thereof, etc., be punished with death." The first point made at the bar is whether this enactment be a con- stitutional exercise of the authority delegated to Congress upon the subject of piracies. The Constitution declares that Congress shaU have power " to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." The argu- ment which has been urged in behalf of the prisoner is, that Congress is bound to define, in terms, the offence of piracy, and is not at liberty to leave it to be ascertained by judicial interpretation. If the argu- ment be well founded, it seems admitted by the counsel that it equally applies to the 8th section of the Act of Congress of 1790, c. 9, which declares that robbery and murder committed on the high seas shall be deemed piracy ; and yet, notwithstanding a series of contested adjudi- cations on this section, no doubt has hitherto been breathed of its con- formity to the Constitution. In our judgment, the construction contended for proceeds upon too narrow a view of the language of the Constitution. The power given to Congress is not merely " to define and punish piracies ; " if it were, the words " to define" would seem almost superfiuous, since the power to punish piracies would be held to include the power of ascertaining and fixing the definition of the crime. And it has been verj"- justly ob- sei-ved, in a celebrated commentary, that the definition of piracies might have been left without inconvenience to the law of nations, though a legislative definition of them is to be found in most municipal codes. The Federalist, No. 42, p. 276. But the power is also given " to define and punish felonies on the high seas, and offences against the law of nations." The term " felonies" has been supposed, in the same work not to have a very exact and determinate meaning in rela- tion to offences at the common law committed within the body of a county. However this may be, in relation to offences on the high seas, it is necessarily somewhat indeterminate, since the term is not used in the criminal jurisprudence of the admiralty in the technical sense of the common law. See 3 Inst. 112 ; Hawk. P. C. c. 37 ; Moore, 576. Of- fences too against the law of nations cannot, with any accuracy, be said to be completely' ascertained and defined in anj' public code recog- nized by the common consent of nations. In respect therefore as well to felonies on the high seas as to offences against the law of nations, 30 CASES ON CRIMINAL LAW. [CHAP. II. there is a peculiar fitness in giving tlie power to define as well as to punish ; and there is not the slightest reason to doubt that this con- sideration had very great weight in producing the phraseology in question. But supposing Congress were bound, in all the cases included in the clause under consideration, to define the oflfence, still there is nothing which restricts it to a mere logical enumeration, in detail, of all the facts constituting the offence. Congress may as well define by using a term of a known and determinate meaning as by an express enumera- tion of all the particulars included in that term. That is certain which is bj'' necessary reference made certain. ' When the Act of 1790 de- clares that any person who shall commit the crime of robbery or mur- der on the high seas shall be deemed a pirate, the crime is not less clearly ascertained than it would be by using the definitions of these terms as they are found in our treatises of the common law. In fact, by such a reference, the definitions are necessarily included, as much as if they stood in the text of the act. In respect to murder, where " malice aforethought" is of the essence of the offence, even if the common-law definition were quoted in express terms, we should still be driven to deny that the definition was perfect, since the meaning of " malice aforethought " would remain to be gathered from the common law. There would then be no end to our diflSculties or our definitions, for each would involve some terms which might still require some new explanation. Such a construction of the Constitution is therefore wholly inadmissible. To define piracies, in the sense of the Constitu- tion, is merely to enumerate the crimes which shall constitute piracy; and this may be done either by a reference to crimes having a techni- cal name and determinate extent, or by enumerating the acts in detail upon which the punishment is inflicted. It is next to be considered whether the crime of piracy is defined by the law of nations with reasonable certaint3^ What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law ; or b3- the general usage and prac- tice of nations ; or by judicial decisions recognizing and enforcing that law. There , is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinate nature ; and whatever maj' be the diversity of definitions in other respects, all writers concur in holding that robbery, or forcible depredations upon the sea, animo furandi, is piracy. The same doctrine is held by all the great writers on maritime law in terms that admit of no reasonable doubt. The common law too recognizes and punishes piracy as an offence, not against its own municipal code, but as an offence against the law of nations (which is part of the common law) ; as an offence against the SECT, v.] UNITED STATES V. SMITH. 31 universal law of society, a pirate being deemed an enemy of the human race. Indeed until the statute of 28th of Henry VIII., c. 15, piracy ■was punishable in England only in the admiralty as a civil-law offence ; and that statute, in changing the jurisdiction, has been universally ad- mitted not to have changed the nature of the offence. Hawk. P. C. c. 37, § 2 ; 3 Inst. 112. Sir Charles Hedges, in his charge at the admi- ralty sessions, in the case of Rex v. Dawson, 5 State Trials, declared in emphatic terms that " piracy is only a sea term for robbery, piracy being a robbery committed within the jurisdiction of the admiraltj*." Sir Leoline Jenkins too, on a like occasion, declared that " a robbery when committed upon the sea is what we call piracy,'' and he cited the civil-law writers in proof. And it is manifest, from the language of Sir William Blackstone, 4 Bl. Comm. 73, in his comments on piracj', that he considered the common-law definition as distinguishable in no essential respect from that of the law of nations. So that, whether we advert to writers on the common law, or the maritime law, or the law of nations, we shall find that they universally treat of piracy as an of- fence against the law of nations, and that its true definition by that law is robbery upon the sea. And the general practice of all nations in punishing all persons, whether natives or foreigners, who have com- mitted this offence against any persons whatsoever, with whom they are in amity, is a conclusive proof that the offence is supposed to de- pend not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment. We have therefore no hesitation in declaring that piracy, by the law of nations, is robbery upon the sea, and that it is sufficiently and consti- tutionally defined by the 5th section of the Act of 1819. Another point has been made in this case, which is that the special verdict does not contain suflScient facts upon which the Court can pro- nounce that the prisoner is guilty of piracy. We are of a different opinion. The special verdict finds that the prisoner is guilty of the plunder and robbery charged in the indictment ; and finds certain ad- ditional facts from which it is most manifest that he and his associates were, at the time of committing the offence, freebooters upon the sea, not under the acknowledged authority or deriving protection from the flag or commission of any government. If under such circumstances the offence be not piracy, it is difllcult to conceive any which would more completely fit the definition. It is to be certified to the Circuit Court that upon the facts stated the case is piracy, as defined by the law of nations, so as to be punish- able under the Act of Congress of the 3d of March, 1819.* > LiTingston, J., delivered a dissenting opinion. 32 CASES ON CRIMINAL LAW. [CHAP. H. UNITED STATES v. AEJONA, 120 U. S. 479 [1887]. Indictment under the Act of May 16, 1884, 23 Stat. 22, to prevent and punish the counterfeiting within the United States of notes, bonds, and other securities of foreign governments. The court below certified a division in opinion on several points. The case is stated in the opin- ion of the Court. Mr. Attorney- General for plaintiff. Mr. George W. Wingate and Mr. Augustus A. Levey for de- fendant. Mr. Chief Justice Waite delivered the opinion of the Court. This is an indictment containing three counts against Ramon Arjona, for violations of §§ 3 and 6 of the Act of May 16, 1884, c. 52, 23 Stat. 22, " to prevent and punish the counterfeiting within the United States of notes, bonds, and other securities of foreign governments." The first and second counts were found under § 6 of the statute, and the third under § 3. The statute makes the following things criminal : — 1. Sect. 1. Forging or counterfeiting within the United States, with intent to defraud, " any bond, certificate, obligation, or other security of any foreign government, issued or put forth under the authority of such foreign govern- ment, or any treasury note, bill, or promise to pay issued by such foreign gov- ernment, and intended to circulate as money either by law, order, or decree of such foreign government." 2. Sect. 2. Knowingly, and with intent to defraud, uttering, passing or putting ofi in payment or negotiation, within the United States, any forged or counterfeit bonds, &c., such as are described in § 1. 3. Sect. 3. Falsely making, forging or counterfeiting within the United States, with intent to defraud, or knowingly assisting therein, " any bank- note or bill issued by a bank or other corporation of any foreign country, and intended by the law or usage of such foreign country to circulate as money, such bank or corporation being authorized by the laws of such country." 4. Sect. 4. Knowingly uttering, passing, putting ofE or tendering in pay- ment, within the United States, with intent to defraud, any such false or counterfeited bank-note or bill as is mentioned in § 3, whether forged or counterfeited in the United States or not. 5. Sect. 5. Having in possession any forged or counterfeit ifastruments mentioned in the preceding sections, with intent to utter, pass, or put them off, or to deliver them to others, with the intent that they may be uttered or passed, 6. Sect. 6. Having in possession " any plate, or any part thereof, from which has been printed or may be printed any counterfeit note, bond, obliga- SECT. V.J UNITED STATES V. AEJONA. 33 tion, or other security, in -whole or in part, of any foreign government, bank, or corporation, except by lawful authority ; " or using such plate, or knowingly permitting or suifering " the same to be used, in counterfeiting such foreign obligations, or any part thereof ; " or engraving, or causing or procuring to be engraved, or assisting " in engraving, any plate in the likeness or simili- tude of any plate designed for the printing of the genuine issues of the obligations of any foreign government, bank, or corporation; or printing, photographing, or in any other manner making, executing, or selling, or causing " to be printed, photographed, made, executed, or sold," or aiding " in printing, photographing, making, executing, or selling any engraving, photograph, print, or impression in the likeness of any genuine note, bond, obligation, or other security, or any part thereof, of any foreign government, bank, or corporation ; " or bringing " into the United States . . . any coun- terfeit plate, engraving, photograph, print, or other impressions of the notes, bonds, obligations, or other securities of any foreign government, bank, or corporation." The first count of the indictment charges Arjona with having " in his control and custody a certain metallic plate from which there might then and there be printed in part a counterfeit note in the likeness and similitude in part of the notes theretofore issued bj' a foreign bank, to wit, the bank known as El Banco del Estado de Bolivar, which said bank was then and there a bank authorized bj' the laws of a foreign State, to wit, the State of Bolivar, said State being then and there one of the States of the United States of Columbia." In the second count he is charged with having caused and procured " to be engraved a certain metallic plate in the likeness and similitude of a plate designated for the printing of the genuine issues of the obli- gations of a foreign bank, that is to say, of the bank-notes of the bank known as El Banco del Estado de Bolivar, the same being then and there a bank authorized bj- the laws of a foreign State, to wit, the State of Bolivar, said State being then and there one of the States of the United States of Columbia." In the third count, the charge is that he, " unlawfully and with in- tent to defraud, did cause and procure to be falsely made a certain note in the similitude and resemblance of the notes theretofore issued by a bank of a foreign country, to wit, the bank known as El Banco del Es- tado de Bolivar, the same being then and there a bank authorized by the laws of one of the States of the United States of Columbia, that is to say, the State of Bolivar, and the notes issued by the said bank being then and by the usage of the said State of Bolivar intended to circulate as money." To this indictment a demurrer was filed, and the judges holding the court have certified that at the hearing the following questions arose, upon which their opinions were opposed : — 8 34 CASES ON CEIMINAL LAW. [CHAP. II. 1. Whether the third section of the statute is constitutional. 2. Whether the sixth section is constitutional so far as it relates to " foreign banks and corporations." 3. Whether the counterfeiting within the United States of the notes of a foreign bank or corporation can be constitutionally made by Con- gress an offence against the law of nations. 4. Whether the obligations of the law of nations, as referred to in the Constitution of the United States, include the punishment of counter- feiting the notes of a foreign bank or corporation, or of having in pos- session a plate from which may be printed counterfeits of the notes of foreign banks or corporations, as mentioned in the third and sixth sec- tions, " unless it appear or is alleged in the indictment that the notes of said foreign bank or corporation are the notes or money of issue of a foreign government, prince, potentate, State, or power." 5. Whether, if there is power to "so define the law of nations," as to include the offences mentioned in the third and sixth sections, it is not necessary, in order "to define" the offence, that it be declared in the statute itself " to be an offence against the law of nations." 6. Whether the indictment is suflicient in law. The fourth of the questions thus stated embraces the fourth, fifth, sixth, seventh, and eighth of those certified, and the fifth embraces the ninth and tenth. Congress has power to make all laws which shall be necessary and proper to carry into execution the powers vested by the Constitution in the Government of the United States, Art. I., § 8, clause 18 ; and the Government of the United States has been vested exclusively with the power of representing the nation in all its intercourse with foreign countries. It alone can " regulate commerce with foreign nations," Art. I., § 8, clause 3 ; make treaties and appoint ambassadors and other public ministers and consuls. Art. II., § 2, clause 2. A State is expressly prohibited from entering into any ' ' treaty, alliance, or confederation." Art. I., § 10, clause 1. Thus all official intercourse between a State and foreign nations is prevented, and exclusive au- thority for that purpose given to the United States. The national government is in this way made responsible to foreign nations for all violations by the United States of tlieir international obligations ; and because of this. Congress is expressly authorized " to define and punish ... offences against the law of nations." Art. I., § 8, clause 10. The law of nations requires every national government to use " due diligence " to prevent a wrong being done within its own dominion to another nation with which it is at peace, or to the people thereof; and because of this the obligation of one nation to punish those who within SECT, v.] UNITED STATES V. AEJONA. 35 its own jurisdiction counterfeit the money of another nation has long been recognized. Vattel, in his Law of Nations, which was first printed at Neuchatel in 1758 and was translated into English and published in England in 1760, uses this language: "From the prin- ciples thus laid down, it is easy to conclude that if one nation counter- feits the money of another, or if she allows and protects false coiners who presume to do it, she does that nation an injury." * When this was written, money was the chief thing of this kind that needed protection, but still it was added: "There is another custom more modern and of no less use to commerce than the establishment of coin, namely exchange, or the traffic of bankers, by means of which a merchant remits immense sums from one end of the world to the other at very trifling expense, and if he pleases, without risk. For the same reason that sovereigns are obliged to protect commerce, they are obliged to support this custom by good laws, in which every merchant, whether citizen or foreigner, may find security. In general, it is equally the in- terest and duty of every nation to have wise and equitable commercial laws established in the country." ^ Vattel, Law of Nations, Phil. ed. 1876, Book I., c. 10, pp. 46, 47. In a note by Mr. Chitty in his Lon- don edition of 1834, it is said: "This is a sound principle, which ought to be extended so as to deny effect to any fraud upon a foreign nation or its subjects." Id. 47, note 50. This rule was established for the protection of nations in their inter- course with each other. If there were no such intercourse, it would be a matter of no special moment to one nation that its money was coun- terfeited in another. Its own people could not be defrauded if the false coin did not come among them, and its own sovereignty would not be violated if the counterfeit could not under any circumstances be made to take the place of the true money. But national intercourse includes commercial intercourse between the people of different nations. It is as much the duty of a nation to protect such an intercourse as it is any other, and that is what Vattel meant when he said, "For the same reason that sovereigns are obliged to protect commerce, they are obliged 1 § 108. Des principes que nous venous d'etablir il est ais^ de conolure, que si une Nation contrefait la raonnaie d'une autre, ou si elle souffre et protege les faux monnayeurs qui osent I'entreprendre, elle lui fait injure. ' II est un autre usage plus moderne, et non moins utile au commerce que I'etablisse ment de la raonnaie : c'est le change, ou le negoce des banquiers, par le moyen duquel un marchand remet d'un bout du raonde & I'autre des sommes immenses, presque sans frais, et s'il le reut, sans p^ril. Par la raeme raison que les souverains doivent proteger le commerce, ils sont obliges de soutenir cet usage par de bonnes lois, dans lesquelles tout marchand, Stranger ou citoyen, puisse trouver sa sdret^. En general, il est ^galement de I'interSt et du devoir de toute Nation, d'etablir chez elle de sages et justes lois de commerce. 36 CASES ON CRIMINAL LAW. [OHAP. II. to support this custom, . . . namely, exchange, or the traffic of bankers, by means of which a merchant renjits immense sums from one end of the world to the other, ... by good laws, in which every merchant, whether citizen or foreigner, may find security'." In the time of Vattel certificates of the public debt of a nation, gov- ernment bonds, and other government securities were rarelj' seen in any other country than that in which they were put out. Banks of issue were not so common as to need special protection for themselves or the public against forgers and counterfeiters elsewhere than at home ; and the great corporations, now so numerous and so important, estab- lished by public authority for the promotion of public enterprises, were almost unknown, and certainly they had not got to be extensive bor- rowers of money wherever it could be had at home or abroad on the faith of their g'Mas^■-public securities. Now, however, the amount of national and corporate debt and of corporate property represented by bonds, certificates, notes, bills, and other forms of commercial securi- ties, which are bought and sold in all the money-markets of the world, both in and out of the country under whose authoritj' they were created, is something enormous. Such being the case, it is easy to see that the same principles that, developed, when it became necessarj', the rule of national conduct which was intended to prevent, as far as might be, the counterfeit- ing of the monej' of one nation within the dominion of another, and which in the opinion of so eminent a publicist as Vattel could be ap- plied to the foreign exchange of bankers, may, with just propriety, be extended to the protection of this more recent custom among bankers of dealing in foreign securities, whether national or corporate, which have been put out under the sanction of public authority at home and sent abroad as the subjects of trade and commerce. And especialty is this so of bank-notes and bank bills issued under the authority of law, which, from their very nature, enter into and form part of the circulat- ing medium of exchange — the money — of a country. Under such cir- cumstances, every nation has not only the right to require the protection, as far as possible, of its own credit abroad against frayid, but the banks and other great commercial corporations, which have been created within its own jurisdiction for the advancement of the public good, may call on it to see that their interests are not neglected by a foreign government to whose dominion thej- have, in the lawful prosecution of their business, become to some extent subjected. No nation can be more interested in this question than the United States. Their money is practically composed of treasury notes or cer- tificates issued by themselves, or of bank bills issued by banks created under their authority and subject to their control. Their own securi- SECT. V.J UNITED STATES V. AEJONA. 37 ties, and those of the States, the cities, and the public corporations whose interests abroad they alone have the power to guard against for- eign national neglect, are found on sale in the principal money-mar- kets of Europe. If these securities, whether national, municipal, or corporate, are forged and counterfeited with impunity at the places where thoy are sold, it is easy to see that a great wrong will be done to the United States and their people. Any uncertainty about the genuine- ness of the security necessarily depreciates its value as a merchantable commodity, and against this international comity requires that national protection shall, as far as possible, be afforded. If there is neglect in that, the United States maj^, with propriety, call on the proper govern- ment to provide for the punishment of such an offence, and thus secure the restraining influences of a fear of the consequences of wrong-doing. A refusal may not perhaps furnish sufficient cause for war, but it would certainly give just ground of complaint, and thus disturb that harmony between the governments which each is bound to cultivate and promote. But if the United States can require this of another, that other may require it of them, because international obligations are of necessity reciprocal in their nature. The right, if it exists at all, is given by the law of nations, and what is law for one is, under the same circum- stances, law for the other. A right secured by the law of nations to a nation or its people is one the United States as the representatives' of this nation are bound to protect. Consequently, a law which is neces- sary and proper to afford this protection is one that Congress may enact, because it is one that is needed to carry into execution a power con- ferred by the Constitution on the government of the United States ex- clusively. There is no authority in the United States to require the passage and enforcement of such a law by the States. Therefore, the United States must have the power to pass it and enforce it themselves, or be unable to perform a duty which they may owe to another nation, and which the law of nations has imposed on them as part of their inter- national obligations. This, however, does not prevent a State from providing for the punishment of the same thing ; for here, as in the case of counterfeiting the coin of the United States, the act may be an offence against the authority of a State as well as that of the United States. Again, our own people may be dealers at home in the public or quasi- public securities of a foreign government, or of foreign banks or cor- porations, brought here in the course of our commerce with foreign na- tions, or sent here from abroad for sale in the money-markets of this country. As such they enter into and form part of the foreign com- merce of the country. If such securities can be counterfeited here 38 CASES ON CETMINAL LAW. [CHAP. II. ■with impunity, our own people may be made to suffer bj' a wrong done which affects a business that has been expressly placed by the Consti- tution under the protection of the government of the United States. It remains only to consider those questions which present the point whether, in enacting a statute to define and punish an offence against the law of nations, it is necessary, in order " to define" the offence, that it be declared in the statute itself to be " an offence against the law of nations." This statute defines the offence, and if the thing made punishable is one which the United States are required by their international obligations to use due diligence to prevent, it is an offence against the law of nations. Such being the case, there is no more need of declaring in the statute that it is such an offence than there would be in any other criminal statute to declare that it was enacted to carry into execution any other particular power vested by the Constitution in the government of the United States. Whether the offence as defined is an offence against the law of nations depends on the thing done, not on any declaration to that effect bj' Congress. As has already been seen, it was incumbent on the United States as a nation to use due diligence to prevent any injury to another nation or its people by coun- terfeiting its money or its public or quasi-public securities. This stat- ute was enacted as a means to that end, that is to saj-, as a means of performing a dutj^ which had been cast on the United States by the law of nations, and it was clearlj' appropriate legislation for that pur- pose. Upon its face, therefore, it defines an offence against the law of nations as clearl^-^s if Congress had in express terms so declared. Criminal statutes passed for enforcing and preserving the neutral rela- tions of the United States with other nations were passed b}* Congi-ess at a very early date ; June 5, 1794, c. 50, 1 Stat. 381 ; June 14, 1797, c. 1, 1 Stat. 520; March 3, 1817, c. 58, 3 Stat. 370; April 20, 1818, 0. 88, 3 Stat. 447 : and those now in force are found in Title LXVII. of the Eevised Statutes. These all rest on the same power of Congress that is here invoked, and it has never been supposed thej- were invalid because they did not expressly declare that the offences there defined were offences against the law of nations. If there is anything more in the eleventh question certified than has been already disposed of in answering the others, it is too broad and indefinite for our consideration under the rules which have been long established regulating the practice on a certificate of division. All the questions certified, except the eleventh, are answered in the affirmative, and as to that, no special answer will be made. SECT. ^I.] CHICAGO, &C. KY. CO. V. McGLINK. 39 Section 5. Federal Jurisdiction by Locality ; Ceded Places ; Places Purchased by Consent of State ; Places Purchased "WITHOUT Consent op State ; Places retained on Creation of State ; Exclusive or Concurrent Jurisdiction. CHICAGO &c., EY. CO. v. McGLINN, 114 U. S. 542 [1884]. This was an action brought by the defendant in error as plaintiff to recover the value of a cow killed by the engine and cars of the plaintiff in error. Judgment for the plaintiff, which was affirmed by the Su- preme Court. The facts which raise the Federal question are stated in the opinion of the Court. This case comes here from the Supreme Court of the State of Kan- sas. It is an action for the value of a cow alleged to have been killed by the engine and cars of the Chicago, Rock Island, and Pacific Rail- way Company, a corporation doing business in the County of Leaven- worth in that State. It was brought in a State district court, and submitted for decision upon an agreed statement of facts, in substance as follows: That on the 10th of February, 1881, a cow, the property of the plaintiff, of the value of $25, strayed upon the railroad of the defendant at a point within the limits of the Fort Leavenworth Military Reservation in that county and State, where the road was not enclosed with a fence, and was there struck and killed by a train passing along the road ; that the Reservation is the one referred to in the act of the legislature of the State of February 22, 1875 ; that a demand upon the defendant for the |25 was made by the plaintiff more than thirty days before the action was brought ; and that, if the plaintiff was entitled to recover attorney's fees, $20 would be a reasonable fee. The action was founded upon a statute of Kansas of March 9, 1874, entitled " An Act relating to killing or wounding stock by railroads," which makes every railway company in the State liable to the owner for the full value of cattle killed, and in damages for cattle wounded, b}- its engine or cars, or in anj' other manner in operating its railway. It provides that, in case the railway compan}' fails for thirty daj's after demand by the owner to pay to him the full value of the animal killed or damages for the animal wounded, he may sue and recover the same, together with a reasonable attorney's fee for the prosecution of the action. It further provides that it shall not apply to anj- railway com- pany the road of which is enclosed with a good and lawful fence to prevent the animal from being on the road. Laws of Kansas, 1874, c. 94. 40 CASES ON CRIMINAL LAW. [CHAP. IL On the 22d of February, 1875, the legislature of Kansas passed an act ceding to the United States jurisdiction over the Reservation, the first section of which is as follows : " That exclusive jurisdiction be, and the same is hereby, ceded to the United States over and within all the territory owned by the United States, and included within the limits of the United States Military Reservation, known as the Fort Leavenworth Reservation, in said State, as declared from time to time by the President of the United States ; saving, however, to the said State the right to serve civil or criminal process within said Reserva- tion, in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed in said State, but outside of such cession and Reservation ; and saving further to said State the right to tax railroad, bridge, and other corporations, their franchises, and property on said Reservation." Laws of Kansas, 1875, c. 66. The district court gave judgment for the plaintiff", assessing his damages at $45, an amount which was made by estimating the value of the cow killed at $25 and the attorney's fee at $20, these sums having been agreed upon by the parties. The case was carried to the Su- preme Court of the State, where the judgment was affirmed, that court holding that the act of Kansas relating to the killing or wounding of stock by railroads continued to be operative within the limits of the Reservation, as it had not been abrogated by Congress and was not inconsistent with existing laws of the United States. In so holding, the court assumed, for the purposes of the case, without however admitting the fact, that the act ceding jurisdiction to the United States over the Reservation was valid, and that the United States had legally accepted the cession. To review this judgment the case is brought here. Two questions are presented for our determination : one, whether the act of Kansas purporting to cede to the United States exclusive jurisdiction over the Reservation is a valid cession within the require- ments of the Constitution ; the other, if such cession of jurisdiction is valid, did the act of Kansas relating to the killing or wounding of stock by railroads continue in force afterwards within the limits of the Reservation ? It can hardly be the design of counsel for the railroad company to contend that the act of cession to the United States is wholly invalid, for in that event the jurisdiction of the State would remain unim- paired, and her statute would be enforceable within the limits of the Reservation equally as in any other part of the State. What we sup- pose counsel desires to maintain is, that the act of cession confers exclusive jurisdiction over the territory, and that any limitations upon it in the act must therefore be rejected as repugnant to the grant SECT. VI.J CHICAGO, &C. BY. CO. V. McGLINN. 41 This point was involved in the case of Fort Leavenworth Railroad v. Lowe, 114 U. S. 525. We there held that a building on a tract of land owned by the United States used as a fort, or for other public purposes of the Federal government, is exempted, as an instrumentality of the government, from any such control or interference by the State as will defeat or embarrass its effective use for those purposes. But in order that the United States may possess exclusive legislative power over the tract, except as may be necessary to the use of the building thereon as such instrumentality, they must have acquired the tract by pur- chase, with the consent of the State. This is the only mode prescribed by the Federal Constitution for their acquisition of exclusive legislative power over it. When such legislative power is acquired in any other way, as by an express act ceding it, its cession may be accompanied with any conditions not inconsistent with the effective use of the prop- erty for the public purposes intended. We also held that it is com- petent for the legislature of a State to cede exclusive jurisdiction over places needed by the general government in the execution of its pow- ers, the use of the places being, in fact, as much for the people of the State as for the people of the United States generally, and such juris- diction necessarily ending when the places cease to be used for those purposes. Upon the second question the contention of the railroad company is that the act of Kansas became inoperative within the Reservation upon the cession to the United States of exclusive jurisdiction over it. We are clear that this contention cannot be maintained. It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign. By the cession public propertj' passes from one government to the other, but private prop- erty remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoj'ment. As a matter of course, all laws, ordinances, and regulations in conflict with the polit- ical character, institutions, and constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power — and the latter is involved in the former — to the United States, the laws of the country in support of an established religion, or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect ; and the laws of the country on other subjects would necessarily be superseded by ex- 42 CASES ON CRIMINAL LAW. [CHAP. IL isting laws of the new government upon the same matters. But with respect to other laws, affecting the possession, use, and transfer of property, and designed to secure good order and peace in the commu- nitj' and promote its health and prosperity, which are strictly of a municipal character, the rule is general that a change of government leaves them in force until, by direct action of the new government, they are altered or repealed. American Insurance Co. v. Canter, 1 Pet. 642 ; Halleck, International Law, c. 34, § 14. The counsel for the railroad compan}- does not controvert this gen- eral rule in cases of cession of political jurisdiction by one nation to another, but contends that it has no application to a mere cession of jurisdiction over a small piece of territory having no organized govern- ment or municipality within its limits ; and argues upon the assumption that there was no organized government within the limits of Fort Leavenworth. In this assumption he is mistaken. The government of the State of Kansas extended over the Reservation, and its legislation was operative therein, except so far as the use of the land as an instru- mentality of the general government may have excepted it from such legislation. In other respects the law of the State prevailed. There was a railroad running through it when the State ceded jurisdiction to the United States. The law of the State, making the railroad liable for killing or wounding cattle bj^ its cars and engines where it had no fence to keep such cattle off the road, was as necessarj' to the safety of cattle after the cession as before, and was no more abrogated by the mere fact of cession than regulations as to the crossing of highways by the railroad cars and the ringing of bells as a warning to others of their approach. It is true there is a wide difference between a cession of political jurisdiction from one nation to another and a cession to the United States bj' a State of legislative power over a particular tract, for a special purpose of the general government ; but the principle which controls as to laws in existence at the time is the same in both. The liability of the railroad company for the killing of the cow did not de- pend upon the place where the animal was killed, but upon the neglect of the company to enclose the road with a fence which would have prevented the cow from straying upon it. The law of Kansas on the subject, in our opinion, remained in force after the cession, it being in no respect inconsistent with any law of the United States, and never having been changed or abrogated. The judgment is accordingly Affirmed. 1 See Ft. Leavenworth R. E. Co. v. Lowe, 114 U. S. 525. SECT. VII.] AMERICAN INSURANCE CO. V. CANTER. 43 Section 7. Federal Jurisdiction bt Locality. Territories ; Dele- gation OF Legislative Powers. AMERICAN INSURANCE COMPANY v. CANTER. 1 Pet. 611 [1828]. The case is stated in the opinion of the Court. Marshall, C. J., delivered the opinion of the Court. The plaintiffs filed their libel in this cause in the District Court of South Carolina, to obtain restitution of 356 bales of cotton, part of the cargo of the ship " Point h Petre," which had been insured by them on a voj'age from New Orleans to Havre de Grace in France. The " Point k Petre " was wrecked on the coast of Florida, the cargo saved by the inhabitants, and carried into Key West, where it was sold for the purpose of satisfying the salvors, by virtue of a decree of a court consisting of a notary and five jurors, which was erected by an act of the territorial legislature of Florida. The owners abandoned to the underwriters, who having accepted the same, proceeded against the property, alleging that the sale was not made by order of a court com- petent to change the property. David Canter claimed the cotton as a ionafide purchaser, under the decree of a competent court, which awarded seventy-six per cent to the salvors on the value of the property saved. The district judge pronounced the decree of the territorial court a nullity, and awarded restitution to the libellants of such part of the cargo as he supposed to be identified by the evidence, deducting there- from a salvage of fifty per cent. The libellants and claimant both appealed. The Circuit Court re- versed the decree of the District Court, and decreed the whole cotton to the claimant, with costs, on the ground that the proceedings of the court at Key West were legal, and transferred the property to the purchaser. From this decree the libellants have appealed to this court. The cause depends mainly ou the question whether the property in the cargo saved was changed by the sale at Key West. The conform- ity of that sale to the order under which it was made has not been controverted. Its validity has been denied on the ground that it was ordered by an incompetent tribunal. The tribunal was constituted by an act of the territorial legislature of Florida, passed on the 4th Jul^-, 1823, which is inserted in the record. That act purports to give the power which has been exercised ; conse» 44 CASES ON CRIMINAL LAW. [CHAP. H. quently the sale is valid, if the territorial legislature was competent to enact the law. The course which the argument has taken, will require that, in de- ciding this question, the court should take into view the relation iu which Florida stands to the United States. The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties ; consequentlj', that government possesses the power of acquiring territory, either by con- quest or by treaty. The usage of the world is, if a nation be not entirety subdued, to consider the holding of conquered territorj' as a mere military occu- pation until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded ter- ritory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession or on such as its new mas- ter shall impose. On such transfer of territory, it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new re- lations are created between them and the government which has ac- quired their territory. The same act which transfers their country transfers the allegiance of those who remain in it ; and the law which may be denominated political is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the State. On the 2d of February, 1819, Spain ceded Florida to the United States. The 6th article of the treaty of cession contains the following provision : " The inhabitants of the territories which his Catholic Ma- jesty cedes to the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoy- ment of the privileges, rights, and immunities of the citizens of the United States." This treaty is the law of the land and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition independent of stipulatioji. Thej^ do not, however, participate in political power ; they do not share in the gov- ernment till Florida shall become a State. In the meantime, Florida continues to be a territory of the United States, governed by virtue oi that clause in the Constitution which empowers Congress " to make all needful rules and regulations respecting the territory or other property belonging to the United States." SECT. VII.] AMEKICAN INSUKANCE CO. V. CANTER. 45 Perhaps the power of governing a territory belonging to the United States, which has not, b}' becoming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the jurisdiction of any particular State and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory-. Whichever may be the source whence the power is derived, the possession of it is unquestioned. In execution of it, Congress in 1822 passed "an act for the establishment of a territorial government in Florida," and on the 3d of March, 1823, passed another act to amend the Act of 1822. Under this act, the territorial legislature enacted the law now under consideration. The 5th section of the Act of 1823 creates a territorial legislature which shall have legislative powers over all rightful objects of legisla- tion ; but no law shall be valid which is inconsistent with the laws and Constitution of the United States. The 7th section enacts " that the judicial power shall be vested in two superior courts and in such inferior courts and justices of the peace as the legislative council of the territor}^ maj' from time to time establish." After prescribing the place of cession and the jurisdictional limits of each court, the Act proceeds to say : " Within its limits herein described, each court shall have jurisdiction in all criminal cases, and exclusive jurisdiction in all capital offences, and original jurisdiction in all civil cases of the value of one hundred dolla?\s, arising under and cognizable by the laws of the territory now in force therein, or which majr at any time be enacted by the legislative council thereof" The 8th section enacts "that each of the said superior courts shall moreover have and exercise the same jurisdiction within its limits, in all cases arising under the laws and Constitution of the United States, which, by an act to establish the judicial courts of the United States, approved the 24th of September, 1789, and an act in addition to the act entitled ' An Act to establish the judicial courts of the United States,' approved the 2d of March, 1793, was vested in the court of Kentucky district." The powers of the territorial legislature extend to all rightful objects of legislation, subject to the restriction that their laws shall not be " in- consistent with the laws and Constitution of the United States," As salvage is admitted to come within this description, the Act is valid unless it can be brought within the restriction. The counsel for the libellants contend that it is inconsistent with both the law and the Constitution ; that it is inconsistent with the provisions of the law by which the territorial government was created and with the amendatory Act of March, 1823. It vests, they say, in an inferior 46 CASES ON CRIMINAL LAW. [CHAP. II. tribunal a jurisdiction which is, by those acts, vested exclusively in the superior courts of the territory. This argument requires an attentive consideration of the sections which define the jurisdiction of the superior courts. The 7th section of the Act of 1823 vests the whole judicial power of the territory " in ~two superior courts, and in such inferior courts and justices of the peace as the legislative council of the territory may from time to time establish." This general grant is common to the superior and inferior courts, and their jurisdiction is concurrent, except so far as it may be made exclusive in either by other provisions of the statute. The jurisdiction of the superior courts is declared to be ex- clusive over capital offences ; on every other question over which those courts may take cognizance by virtue of this section, concurrent juris- diction may be given to the inferior courts. Among these subjects are " all civil cases arising under and cognizable by the laws of the terri- tory now in force therein, or which may at any time be enacted by the legislative council thereof." It has been already stated that all the laws which were in force in Florida while a province of Spain, those excepted which were pohtical in their character, which concerned the relations between the people and their sovereign, remained in force until altered bj' the government of the United States. Congress recognizes this principle by using the words " laws of the territory now in force therein." No laws could then have been in force but those enacted bj' the Spanish government. If among these a law existed on the subject of salvage, and it is scarcely possible there should not have been such a law, jurisdiction over cases arising under it was conferred on the superior courts, but that jurisdic- tion was not exclusive. A territorial act, conferring jurisdiction over the same cases on an inferior court, would not have been inconsistent with this section. The 8th section extends the jurisdiction of the superior courts in terms which admit of more doubt. The words are : " That each of the said superior courts shall, moreover, have and exercise the same juris- diction within its limits, in all cases arising under the laws and Consti- tution of the United States, which, by an act to establish the judicial courts of the United States, was vested in the court of the Kentucky district." The 11th section of the Act declares "that the laws of the United States relating to the revenue and its collection, and all other public acts of the United States not inconsistent or repugnant to this Act, shall extend to and have full force and effect in the territory aforesaid." The laws which are extended to the territory by this section were either for the punishment of crime or for civil purposes. Jurisdiction SECT. VII.J AMERICAN INSUKANCB CO. V. CANTER. 47 is given in all criminal cases by the 7th section ; but in civil cases that section gives jurisdiction only in those which arise under and are cog- nizable by the laws of the territory. Consequently all civil cases aris- ing under the laws which are extended to the territory by the 11th scetion are cognizable in the territorial courts by virtue of the 8th sec- tion ; and in those cases the superior courts maj' exercise the same jurisdiction as is exercised by the court for the Kentucky district. The question suggested by this view of the subject, on which the case under consideration must depend, is this : — Is the admiralty jurisdiction of the district courts of the United States vested in the superior courts of Florida, under the words of the 8th sec- tion, declaring that each of the said courts " shall, moreover, have and exercise the same jurisdiction within its limits, in aU cases arising under the laws and Constitution of the United States," which was vested in the courts of the Kentucky district ? It is observable that this clause does not confer on the territorial courts all the jurisdiction which is vested in the court of the Kentucky district, but that part of it only which applies to " cases arising under the laws and Constitution of the United States." Is a case of admiralty of this description ? The Constitution and laws of the United States give jurisdiction to the district courts over all cases in admiralty ; but jurisdiction over the case does not constitute the case itself. We are therefore to inquire whether cases in admiralty and cases arising under the laws and Con- stitution of the United States are identical. If we have recourse to that pure fountain from which all the jurisdic- tion of the Federal courts is derived, we find language emploj-ed which cannot well be misunderstood. The Constitution declares that "the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting am- bassadors, or other public ministers, and consuls ; to all eases of ad- miralty and maritime jurisdiction.' The Constitution certainly contemplates these as three distinct classes of cases ; and if they are distinct, the grant of jurisdiction over one of them does not confer jurisdiction over either of the other two. The discrimination made between them in the Constitution is, we think, conclusive against their identity. If it were not so, if this were a point open to inquiry, it would be difficult to maintain the proposition that they are the same. A case in admiralty does not in fact arise under the Constitution or laws of the United States. These cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our courts to the cases as they arise. It 48 CASES ON CRIMINAL LAW. [CHAP. H. is not then to the 8th section of the territorial law that we are to look for the grant of admiralty and maritime jurisdiction to the territorial courts. Consequently if that jurisdiction is exclusive, it is not made so by the reference to the District Court of Kentucky. It has been contended that, by the Constitution, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction, and that the whole of this judicial power must be vested "in one supreme court and in such inferior courts as Congress shall from time to time ordain and establish." Hence, it has been argued that Congress cannot vest admiralty jurisdiction in courts created by the territorial legislature. We have only to pursue this subject one step further to perceive that this provision of the Constitution does not apply to it. The next sen- tence declares that " the judges, both of the supreme and inferior courts, shall hold their offices during good behavior." The judges of the su- perior courts of Florida hold their offices for four years. These courts, then, are not Constitutional courts, in which the judicial power conferred by the Constitution on the general government can be deposited. They are incapable of receiving it. They are legislative courts, created in vir- tue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the 3d article of the Constitu- tion, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States. Although admiralty jurisdiction can be exercised in th6 States in those courts onlj' which are established in pursuance of the 3d Ar- ticle of the Constitution, the same limitation does not extend to the territories. In legislating for them. Congress exercises the combined powers of the general and of a State government. We think, then, that the act of the territorial legislature erecting the court bj' whose decree the cargo of the " Point a Petre " was sold, is hot " inconsistent with the laws and Constitution of the United States," and is valid. Consequently the sale made in pursuance of it changed the property, and the decree of the Circuit Court, awarding restitution of the property to the claimant, ought to be affirmed, with costs. SECT. VIII.] UNITED STATES V. WILTBEKGER. 49 Section 8. Federal Jurisdiction by Locality: High Seas. " The Congress shall have power ... to define and punish felonies committed on the high seas." — Constitution of the United States, Art. 1,§8. UNITED STATES v. COOMBS, above. UNITED STATES v. WILTBEKGER. 5 Wheat. 76. This was an indictment for manslaughter in the Circuit Court of the United States for the District of Pennsylvania. The jury found the de- fendant guilty of the offence with which he stood indicted, subject to the opinion of the Court whether this court has jurisdiction of the case, which was as follows : — The manslaughter charged in the indictment was committed by the defendant on board of the American ship, " The Benjamin Rush," on a seaman belonging to the said ship, whereof the defendant was master, in the river Tigris, in the empire of China, off Wampoa, and about one hundred yards from the shore, in four and a half fathoms water and below thie low-water mark, thirty-five miles above the mouth of the river. The water at the said place where the offence was committed is fresh, except in very dry seasons, and the tide ebbs and flows at and above the said place. At the mouth of the Tigris the government of China has forts on each side of the river, where custom-house ofHcers are taken in by foreign vessels to prevent smuggling. The river at the mouth and at Wampoa is about half a mile in breadth. And thereupon the opinions of the judges of the Circuit Court being opposed as to the jurisdiction of the court, the question was by them stated and directed to be certified to this court. Marshall, C. J., delivered the opinion of the Court. The indictment in this case is founded on the 12th section of the Act entitled "An Act for the punishment of certain crimes against the United States." That section is in these words : " And be it enacted that if any seaman or other person shall commit manslaughter on the high seas,^ or confederate," etc., " such person or persons so offending and being thereof convicted, shall be imprisoned, not exceeding three years, and fined, not exceeding one thousand dollars." The jurisdiction of the court depends on the place in which the fact 1 [Amended to embrace localities such as that in question by Act of March 3, 1825, §§ i et seq. (IT. S. Stats, at Large, 115, 116.)] 4 50 CASES ON CRIMINAL LAW. [CHAP. II. was committed. Manslaughter is not punishable in the courts of the United States, according to the words which have been cited, unless it be committed on the high seas. Is the place described in the special verdict a part of the high seas ? If the words be taken according to the common understanding of mankind, if they be taken in their popular and received sense, the " high seas," if not in all instances confined to the ocean which washes a coast, can never extend to a river about half a mile wide and in the interior of a country. This extended construction of the words, it has been insisted, is still further opposed by a comparison of the 12th with the 8th section of the Act. In the 8th section Congress has shown its attention to the distinction between the "high seas" and "a river, haven, basin, or bay." The well known rule that this is a penal statute and is to be construed strictly is also urged upon us. On the part of the United States the jurisdiction of the court is sus- tained, not so much on the extension of the words " high seas " as on that construction of the whole act, which would engraft the words of the 8th section, descriptive of the place in which murder may be com- mitted, on the 12th section, which describes the place in which man- slaughter may be committed. This transfer of the words of one section to the other is, it has been contended, in pursuance of the obvious intent of the legislature ; and in support of the authority of the court so to do, certain maxims or rules for the construction of statutes have been quoted and relied on. It has been said that although penal laws are to be construed strictly, the Intention of the legislature must govern in their construction ; that if a case be within the intention, it must be considered as if within the letter of the statute ; so, if it be within the reason of the statute. After giving the subject an attentive consideration, we are unani- mously of opinion that the offence charged in this indictment is not cognizable in the courts of the United States ; which opinion is to be certified to the Circuit Court for the District of Pennsylvania. As to the three-mile belt of the high seas, see note to preceding sec- tion, Stat. 41 & 42 Vict. c. 73, United States v. Pirates, 6 "Wheat. 184, Eegina v. Keyn, 13 Cox C. C. 403. SECT. IX.] SMITH V. MARYLAND. 61 Section 9. Federal Jubisdictiok by Locality : Admiralty Waters NOT part op the High Seas (Eivers, Bays, Etc.). (a) Fed- eral Rights of Jurisdiction. (6) Greater or Less Exercise OF THOSE Eights, (c) Eeserved Eights of States. (a) EEGINA v. CAEE, 10 Q. B. D. 76 ; 15 Cox C. C. 129. EEGINA V. ANDEESON, 1 L. E. C. C. 161 ; 11 Cox C. C. 198. EEGINA V. AEMSTEONG, 13 Cox C. C. 184. EEGINA V. LOPEZ, 7 Cox C. C. 431. Statute cited in footnote to Section 8. (J) UNITED STATES v. BEVANS, abote. (c) SMITH V. MARYLAND, 18 How. 71 [1855]. Mr. Justice Curtis delivered the opinion of the Court. This is a writ of eiTor to the Circuit Court for Anne Arundel County, in the State of Maryland, under the 25th section of the Judiciary Act of 1789. It appears by the record that the plaintiff in error, being a citizen of the State of Pennsylvania, was the owner of a sloop called "The Volant," which was regularly enrolled at the port of Philadel- phia, and licensed to be employed in the coasting trade and fisheries ; that in March, 1853, the schooner was seized by the sheriff of Anne Arundel County while engaged in dredging for oysters in the Chesa- peake Bay, and was condemned to be forfeited to the State of Mary- land by a justice of the peace of that State before whom the proceeding was had ; that on appeal to the Circuit Court for the county, being the highest court in which a decision could be had, this decree of forfeiture was affirmed; and that the plaintiff in error insisted, in the Circuit Court, that such seizure and condemnation were repugnant to the Con- stitution of the United States. 52 CASES ON CBIMINAL LAW. [CHAP. II, This vessel being enrolled and licensed under the Constitution and laws of the United States to be employed in the coasting trade and fisheries, and whUe so employed having been seized and condemned under a law of a State, the owner has a right to the decision of this court upon the question whether the law of the State, by virtue of which condemnation passed, was repugnant to the Constitution or laws of the United States. That part of the law in question containing the prohibition and in- flicting the penalty, which appears to have been applied by the State court to this case, is as follows (1833, c. 254) : — " An Act to prevent the Destruction of Oysters in the Waters of this State." " Whereas, the destruction of oysters in the waters of this State is seriously apprehended, from the destructive instrument used in taking them, therefore " Section 1. £e it enacted by the General Assembly of Maryland, That it shall be unlawful to take or catch oysters in any of the waters of this State with a scoop or drag, or any other instrument than such tongs and rakes as are now in use and authorized by law ; and all per- sons whatever are hereby forbid the use of such instruments in taking or catching oysters in the waters of this State, on pain of forfeiting to the State the boat or vessel employed for the purpose, together with her papers, furniture, tackle, and apparel, and all things on board the same." The question is, whether this law of the State afforded valid cause for seizing a licensed and enrolled vessel of the United States, and in- terrupting its voyage and pronouncing for its forfeiture. To have this effect we must find that the State of Maryland had power to enact this law. The purpose of the law is to protect the growth of oysters in the waters of the State by prohibiting the use of particular instruments in dredging for them. No question was made in the court below whether the place in question be within the territory of the State. The law is in terms limited to the waters of the State. If the county court ex- tended the operation of the law beyond those waters, that was a dis- tinct and substantive ground of exception to be specifically taken and presented on the record, accompanied by all the necessary facts to en- able this court to determine whether a voyage of a vessel, licensed and enrolled for the coasting trade, had been interrupted by force of a law of a State while on the high seas and out of the territorial jurisdiction of such State. To present to this court such a question upon a writ of error Jto a State court, it is not enough that it might have been made in the court SECT. IX.] SMITH V. MAEYLAND. 53 below; it must appear by the record that it was made and decided against the plaintiff in error. As we do not find from the record that any question of this kind was raised, we must consider that the acts in question were done and the seizure made within the waters of the State ; and that the law, if valid, was not misapplied by the county court by extending its operation, contrary to its terms, to waters without the limits of the State. What we have to consider under this writ of error is, whether the law itself, as above recited, be repugnant to the Constitution or laws of the United States. It was argued that it is repugnant to that clause of the Constitution which confers on Congress power to regulate commerce, because it au- thorizes the seizure, detention, and forfeiture of a vessel enrolled and licensed for the coasting trade under the laws of the United States, while engaged in that trade. But such enrolment and license confer no immunity from the opera- tion of valid laws of a State. If a vessel of the United States, en- gaged in commerce between two States, be interrupted therein by a law of a State, the question arises whether the State had power to make the law by force of which the voyage was interrupted. This question must be decided in each case upon its own facts. If it be found as in Gibbon v. Ogden, 9 Wheat. 1 , that the State had not power to make the law under which a vessel of the United States was prevented from prosecuting its voyage, then the prevention is unlawful and the pro- ceedings under the law invalid. But a State may make valid laws for the seizure of vessels of the United States. Such, among others, are quarantine and health laws. In considering whether this law of Maryland belongs to one or the other of these classes of laws, there are certain established principles to be kept in view which we deem decisive. Whatever soil below low-water mark is the subject of exclusive pro- priety and ownership belongs to the State on whose maritime border and within whose territory it lies, subject to any lawful grants of that soil by the State or the sovereign power which governed its territory before the Declaration of Independence. Pollard's Lessee v. Hagan, 3 How. 212 ; Martin v. Waddell, 16 Pet. 367 ; Den v. The Jersey Co., 15 How. 426. But this soil is held by the State not only subject to but in some sense in trust for the enjoyment of certain public rights, among which is the common liberty of taking fish, as well shell-fish as floating fish. Martin v. Waddell, supra ; Den v. Jersey Co., supra ; Corfield v. Coryell, 4 Wash. E. 376 ; Fleet V. Hagemen, 14 Wend. 42 ; Arnold v. Munday, 1 Halst. 1 ; Parker v. Cutler Milldam Corporation, 2 Appleton (Me.) R. 54 CASES ON CRIMINAL LAW. [CHAP. II. 353 ; Peck v. Lockwood, 5 Day, 22 ; Weston, et al. v. Sampson et ah, 8 Cush. 347. The State holds the propriety of this soil for the conserva- tion of the public rights of fishery thereon, and may regulate the modes of that enjoyment so as to prevent the destruction of the fishery. In other words it may forbid all such acts as would render the public right less valuable or destroy it altogether. This power results from the ownership of the soil, from the legislative jurisdiction of the State over it, and from its duty to preserve unimpaired those public uses for which the soil is held. Vattel, b. I., c. 20, § 246; Corfleld v. Coryell, 4 Wash. E. 376. It has been exercised by many of the States. See Angell on Tide Waters, 145, 156, 170, 192, 193. The law now in question is of this character. Its avowed and un- questionably its real object is to prevent the destruction of oysters within the waters of the State by the use of particular instruments in taking them. It does not touch the subject of the common liberty of taking oysters, save for the purpose of guarding it from injurj', to whomsoever it may belong and by whomsoever it may be enjoyed. Whether this liberty belongs exclusively to the citizens of the State of Maryland or may lawfully be enjoyed in common by all citizens of the United States ; whether this public use may be restricted by the State to its own citizens or a part of them, or by force of the Constitution of the United States must remain common to all citizens of the United States ; whether the national government bj"^ a treaty or act of Con- gress can grant to foreigners the right to participate therein ; or what in general are the limits of the trust upon which the State holds this soil, or its power to define and control that trust, are matters wholly without the scope of this case and upon which we give no opinion. So much of this law as is above cited may be correctly said to be not in conflict with, but in furtherance of, any and all public rights of tak- ing oysters whatever they may be ; and it is the judgment of the Court that it is within the legislative power of the State to interrupt the voyage and inflict the forfeiture of a vessel enrolled and licensed under the laws of the United States, for a disobedience by those on board of the commands of such a law ; to inflict a forfeiture of a vessel on ac- count of the misconduct of those on board, — treating the thing as liable to forfeiture because the instrument of the offence is within estab- lished principles of legislation which have been applied by most civil- ized governments. The Malek Adhel, 2 How. 233, 234, and cases there cited. Our opinion is that so much of this law as appears by the record to have been applied to this case by the court below is not re- pugnant to the clause in the Constitution of the United States which confers on Congress power to regulate commerce. It was also suggested that it is repugnant to the 2d section of the SECT. X.] UNITED STATES V. HALL. 65 third Article, which declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. But we consider it to have been settled by this court in United States V. Bevans, 3 Wheat. 386, that this clause in the Constitution did not affect the jurisdiction nor the legislative power of the States, over so much of their territory as lies below high-water mark, save that they parted with the power so to legislate as to conflict with the admiralty' jurisdiction or laws of the United States. As this law conflicts neither with the admiralty jurisdiction of any court of the United States con- ferred by Congress nor with any law of Congress whatever, we are of opinion it is not repugnant to this clause of the Constitution. The ob- jection that the law in question contains no provision for an oath on which to found the warrant of arrest of the vessel cannot be here main- tained. So far as it rests on the Constitution of the State the objection is not examinable here under the twenty-fifth section of the Judiciary Act. If rested on that clause in the Constitution of the United States which prohibits the issuing of a warrant but on probable cause sup- ported by oath, the answer is that this restrains the issue of warrants only under the laws of the United States and has no application to State process. Barron v. Mayor, etc. of Baltimore, 7 Pet. 243 ; Lessee of Livingston v. Moore et al., 7 Pet. 469 ; Fox v. Ohio, 5 How. 410. The judgment of the Circuit Court of Maryland in and for Anne Arundel County is afSrmed with costs. COMMONWEALTH v. MANCHESTER (Mass.), 152 Mass. 000 ; 25 N. E. Eep. 113. Section 10. Federal Jukisdiction by Subjeot-Mattee. lUNITED STATES v. ARJONA, above, p. 32. UNITED STATES v. HALL. 98 U. S. 343 [1878]. Ceetificate of division in opinion between the judges of the Circuit Court of the United States for the Southern District of Ohio. The facts are stated in the opinion of the Court. Me. Justice Clifpokd delivered the opinion of the Court. Pensions granted to children under sixteen years of age may, in cer- tain cases, be paid to their guardians, and the act of Congress provides 56 CASES ON CEIMINAL LAW. [CHAP. II. that every guardian having the charge and custody of the pension of his ward, who embezzles the same in violation of his trust, or fraudu- lently converts the same to his own use, shall be punished by fine not exceeding $2,000, or imprisonment at hard labor for a term not exceed- ing five years, or both. Eev. Stat. § 4783. SuflScient appears to show that the defendant in the indictment is the guardian of William Williamson, who was at the time mentioned, and long before had been, entitled to a pension from the government of the United States, and that the defendant, as such guardian, had collected pension-money belonging to his said ward as such pensioner, to the amount of $500, for which he had never accounted, and which he had never expended for nor paid to his said ward. Payment of the money being refused and withheld, an indictment against the defendant was returned by the grand jury of the Circuit Court, in which it is charged, among other things, that he, the respon- dent, being then and there the duly appointed guardian of William Williamson, who was entitled to a pension from the government of the United States, and having then and there, as such guardian, the charge and custody of the pension-money belonging to said ward, did unlaw- fully and feloniously embezzle, in violation of his trust, a large sum of money, to wit, $500, pension-money belonging to his said ward, which he, the defendant, as such guardian, had theretofore collected from the government of the United States. Due appearance was entered by the defendant, and he demurred to the indictment. Hearing was had ; and the following questions arose, upon which the judges of the Circuit Court were opposed in opinion, and the same were duly certified to this court : — 1. Whether the Circuit Court has any jurisdiction over the alleged offence, or any power to punish the defendant for any appropriation of the money after its legal payment to him as such guardian, it appear- ing that the defendant is the legal guardian of his ward under the laws of the State ; and that the money alleged to have been embezzled and fraudulently converted to his own use had been paid over to him by the government, and belonged to his said ward. 2. If the defendant did embezzle the money and convert the same to his own use after it was paid over to him by the government, is he liable to indictment for the offence under the act of Congress, or only under the State Law ? 3. Is the act of Congress under which the indictment is found a con- stitutional and valid law? For the defendant, it is insisted that when the payment is made to the guardian, the money paid ceases to be within the constitutional con- SECT. X.] UNITED STATES V. HALL. 57 trol of the United States ; and that the act of Congress, which enacts that the guardian who embezzles the money or fraudulently converts the same to his own use is guilty of a misdemeanor, is unconstitutional and void. But the Court is unhesitatingly of a different opinion, for several reasons : 1. Because the United States, as the donors of the pensions, may, through the legislative department of the government, annex such conditions to the donation as they see fit, to insure its trans- mission unimpaired to the beneficiary. 2. Because the guardian no more than the agent or attorney of the pensioner is obliged by the laws of Congress to receive the fund ; but if he does, he must accept it subject to the annexed conditions. 3. Because the word " guardian," as used in the acts of Congress, is merely the designation of the person to whom the money granted may be paid for the use and benefit of the pension- ers. 4. Because the fund proceeds from the United States, and inas- much as the donation is a voluntary gift, the Congress may pass laws for its protection, certainly until it passes into the hands of the benefi- ciary, which is all that is necessary to decide in this case. 5. Because the elements of the offence defined by the act of Congress in question consist of the wrongful acts of the individual named in the indictment, wholly irrespective of the duties devolved upon him by the State law. 6. Because the theory of the defendant that the act of Congress aug- ments, lessens, or makes any change in respect to the duties of a guard- ian under the State law is entirely erroneous, as the act of Congress merely provides that the pension may be paid to the person designated as guardian, for the use and benefit of the pensioner, and that the per- son who receives the pension, if he embezzles it or fraudulently con- verts it to his own use, shall be guilty of a misdemeanor, and be punished as therein provided. Viewed in the light of these suggestions, it is clear that Congress possessed the power: 1. To define the offence set forth in the indict- ment, and that the Circuit Court is vested with the jurisdiction to trj' the oflTender and sentence him to the punishment which the act of Con- gress imposed. 2. That the defendant, under the circumstances dis- closed in the record, was liable to indictment in the Circuit Court of the United States. 3. That the act of Congress defining the oflence set forth in the indictment is a valid and constitutional law enacted in pursuance of the Constitution. Answers will be certified in conformity with this opinion ; that is, the answer to the first question must be in the aflSrmative, and the answers to the second and third questions in the negative ; and it is So ordered. 58 CASES ON CEIMINAL LAW. [CHAP. II. UNITED STATES v. FOX, 95 U. S. 670 [1877]. On a certificate of division in opinion between the judges of the Circuit Court of the United States for the Southern District of New York. In November, 1874, the defendant filed a petition in bankruptcy in the District Court for the Southern District of New York. In March, 1876, he was indicted in the Circuit Court for that district for alleged offences against the United States, and among others for the ofienee described in the ninth subdivision of § 5132 of the Revised Statutes, which provides that "every person respecting whom proceedings in bankruptcy are commenced, either upon his own petition or that of a creditor,'' who, within three months before their commencement, "under the false color and pretence of carrying on business and deal- ing in the ordinary course of trade, obtains on credit from any person any goods or chattels with intent to defraud," shall be punished by imprisonment for a period not exceeding three years. The indictment, among other things, charged the defendant with having, within three months previous to the commencement of his proceedings in bankruptcy, purchased and obtained on credit goods from several merchants in the city of New York, upon the pretence and representation of carrjang on business and dealing in the ordinary course of trade as a manufacturer of clothing ; whereas he was not carrying on business in the ordinary course of trade as such manu- facturer, but was selling goods to some parties by the piece for cost, and to other parties at auction for less than cost, and that these pre- tences and representations were made to defraud the parties from whom the goods were purchased. The defendant was convicted ; and upon a motion in arrest of judg- ment, the judges holding the Circuit Court were opposed in opinion, and have certified to this court the question upon which they difl'ered. That question is thus stated in the certificate : — " If a person shall engage in a transaction which, at the time of its occur- rence, is not a violation of any law of the United States, to wit, the obtain- ing goods upon credit by false pretences, and if, subsequently thereto, proceedings in bankruptcy shall be commenced respecting him, is it within the constitutional limits of congressional legislation to subject him to pun- ishment for such transaction considered in connection with the proceedings in bankruptcy?" SECT. X.J UNITED STATES V. POX. 59 Mr. Justice Field delivered the opinion of the Court. The question presented by the certificate of division does not appear to us difficult of solution. Upon principle, an act which is not an offence at the time it is committed cannot become such by any subse- quent independent act of the party with which it has no connection. By the clause in question, the obtaining of goods on credit upon false pretences is made an offence against the United States upon the hap- pening of a subsequent event, not perhaps in the contemplation of the party, and which may be brought about, against his will, by the agency of another. The criminal intent essential to the commission of a pub- lic offence must exist when the act complained of is done : it cannot be imputed to a party from a subsequent independent transaction. There are cases, it is true, where a series of acts are necessary to con- stitute an offence, one act being auxiliary to another in carrying out the criminal design. But the present is not a case of that kind. Here an act which may have no relation to proceedings in bankruptcy be- comes criminal, according as such proceedings may or may not be sub- sequently taken, either by the party or by another. There is no doubt of the competency of Congress to provide, by suitable penalties, for the enforcement of all legislation necessary or proper to the execution of powers with which it is intrusted. And as it is authorized " to establish uniform laws on the subject of bankrupt- cies throughout the United States," it may embrace within its legisla- tion whatever may be deemed important to a complete and effective bankrupt system. The object of such a system is to secure a ratable distribution of the bankrupt's estate among his creditors, when he is unable to discharge his obligations in full, and at the same time to relieve the honest debtor from legal proceedings for his debts, upon a surrender of his property. The distribution of the property is the principal object to be attained. The discharge of the debtor is merely incidental and is granted only where his conduct has been free from fraud in the creation of his indebtedness or the disposition of his property. To legislate for the prevention of frauds in either of these particulars, when committed in contemplation of bankruptcy, would seem to be within the competency of Congress. Any act committed with a view of evading the legislation of Congress passed in the exe- cution of any of its powers, or of fraudulently securing the benefit oi such legislation, may properly be made an offence against the United States. But an act committed within a State, whether for a good or a bad purpose, or whether with an honest or a criminal intent, cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States. An act not having 60 CASES OK CRIMINAL LAW. [CHAP. 11. any such relation is one in respect to which the State can alone legislate. The act described in the ninth subdivision of § 5132 of the Eevised Statutes is one which concerns only the State in which it is committed ; it does not concern the United States. It is quite possible that the framers of the statute intended it to apply only to acts committed in contemplation of bankruptcy ; but it does not say so, and we cannot supply- qualifications which the legislature has failed to express. Our answer to the question certified must be in the negative ; and it will be so returned to the Circuit Court. UNITED STATES v. DEWITT, 9 Wall. 41 [1869]. On certificate of division in opinion between the judges of the Circuit Court for the Eastern District of Michigan, the case being this : — Section 29 of the Act of March 2, 1867,i declares — " That no person shall mix for sale naphtha and illuminating oils, or shall knowingly sell or keep for sale or offer for sale such mixture, or shall sell or offer for sale oil made from petroleum for illuminating purposes, inflammable at less temperature or fire-test than 110 degrees Fahrenheit; and any person so doing, shall be held to be guilty of a misdemeanor, and on conviction thereof by indictment or presentment in any court of the United States having com- petent jurisdiction, shall be punished by fine, etc., and imprisonment," etc. Under this section one Dewitt was indicted, the offence charged be- ing the offering for sale at Detroit in Michigan oil made of petroleum of the description specified. There was no allegation that the sale was in violation or evasion of any tax imposed on the property sold. It was alleged onlj' that the sale was made contrary to law. To this indictment there was a demurrer, and thereupon arose two questions on which the judges were opposed in opinion. 1. Whether the facts charged in the indictment constituted any of- fence under any valid and constitutional law of the United States ? 2. Whether the aforesaid section 29 of the Act of March 2d, 1867, was a valid and constitutional law of the United States ? Mr. Meld, Assistant Attorney- General, for the United States. Instances of the exercise of police power over certain instruments or 1 14 Stat, at Large, 484. SECT. X.] UNITED STATES V. DEWITT. 61 agencies of commerce, for the protection of life and property, are found in various acts of Congress.^ In the License Tax Cases ^ it is held that the provisions of the inter- nal revenue laws requiring the payment of a license tax and prohibiting under penalties the exercise of certain kinds of business within a State without such tax having been paid, are only modes of enforcing the payment of excise taxes ; that the payment of such special tax or license tax conveys to the licensee no authority to carry on the busi- ness licensed within a State which prohibits its being carried on, but that such provisions of law as incidental to the taxing power are not unconstitutional. So far as appears there was no law of the State of Michigan regula- ting the sale of oil made from petroleum at the time when the alleged offence was committed. There is no decision of this court that Con- gress cannot enact a law regulating trade in a State, in the absence of any regulation by the State, when the articles of the trade thus regu- lated ma}' enter into commerce with other States or with foreign coun- tries. It has been decided by this court that Congress may prohibit the exercise of a trade within a State under a penaltj', in aid of or for the purpose of collecting excise taxes levied upon the exercise of such trade. One reason for the enactment may have been the protection of trans- portation companies between the States and between the United States and foreign countries from danger to property and life in transporting oil, mixed or sold in violation of this statute ; and the protection of revenue oflScers in the examination, gauging, marking, and storing of such oil ; and the proper distinction between and classification of differ- ent kinds of mineral oils made necessary for the convenient assessment and collection of excise taxes. If this was the reason then the regula- tions are fairly incidental to the exercise of the power to regulate commerce or of the taxing power, and as such constitutional. The Chief Justice delivered the opinion of the Court. The questions certified resolve themselves into this : Has Congress power under the Constitution to prohibit trade within the limits of a State ? That Congress has power to regulate commerce with foreign nations and among the several States and with the Indian tribes, the Constitution expressly declares. But this express grant of power to regulate com- merce among the States has always been understood as limited by its terms, and as a virtual denial of any power to interfere with the inter- 1 Acts of lytarch 3, 1843, 5 Stat, at Large, 626 ; August 30, 1852, 10 id. 61 ; May 5, 1864, 18 id. 63; July 25, 1866, 14 id. 228. 2 5 Wallace, 462. 62 CASES ON CRIMINAL LAW". [CHAP. H. nsil trade and business of the separate States, except, indeed, as a nec- essary and proper means for carrj'ing into execution some other power expressly granted or vested. It has been urged in argument that the provision under which this indictment was framed is within this exception ; that the prohibition of the sale of the illuminating oil described in the indictment was in aid and support of the internal revenue tax imposed on other illuminating oils. And we have been referred to provisions, supposed to be analo- gous, regulating the business of distilling liquors and the mode of packing various manufactured articles ; but the analogy appears to fail at the essential point, for the regulations referred to are restricted to the very articles which are the subject of taxation, and are plainly adapted to secure the collection of the tax imposed, while in the case before us no tax is imposed on the oils the sale of which is prohibited. If the prohibition, therefore, has anj^ relation to taxation at all, it is merely that of increasing the production and sale of other oils, and con- sequently the revenue derived from them, by excluding from the market the particular kind described. This consequence is too remote and too uncertain to warrant us in saying that the prohibition is an appropriate and plainly adapted means for carrying into execution the power of laying and collecting taxes. There is, indeed, no reason for saying that it was regarded by Con- gress as such a means, except that it is found in an act imposing inter- nal duties. Standing by itself it is plainly a regulation of police, and that it was so considered, if not by the Congress which enacted it, cer- tainly by the succeeding Congress, may be inferred from the circum- stance that while all special taxes on illuminating oils were repealed by the Act of July 20, 1868, which subjected distillers and refiners to the tax on sales as manufacturers, this prohibition was left un- repealed. As a police regulation relating exclusively to the internal trade of the States, it can only have effect where the legislative authority of Con- gress excludes territorially all State legislation, as for example, in the District of Columbia. "Within State limits it can have no constitutional operation. This has been so frequently declared by this court, results so obviously from the terms of the Constitution, and has been so fully explained and supported on former occasions,^ that we think it unnec- essary to enter again upon the discussion. The first question certified must, therefore, be answered in the negative. 1 License Cases, 5 Howard, 504; Passenger Cases, 7 id. 283; License Tax Cases, 6 Wallace, 470 , and the cases cited. - - - ■ - SECT. XII.] POX V. STATE OE OHIO. 63 The second question must also be answered in the negative, except so far as the section named operates within the United States but with- out the limits of any State. Section 11. Jurisdiction by Subject-Matter : Federal Cogni- zance, IN Certain Cases, of Alleged Offences against State Laws. TENNESSEE v. DAVIS, 100 U. S. 257. In re NEAGLE, 135 U. S. 1. Section 12. Federal Jurisdiction bt Subject-Matter : Concur- rent with State Jurisdiction over Specific Acts. FOX V. STATE OF OHIO, 5 Howard, 410 [1846]. Daniel, J., delivered the opinion of the Court. This case comes before us on a writ of error to the Supreme Court of the State of Ohio, by whose judgment was afiirmed the judgment of the Court of Common Pleas for the county of Morgan in that State, con- victing the plaintiff of passing, with fraudulent intent, a base and coun- terfeit coin in the similitude of a good and legal silver dollar, and sentencing her, for that offence, to imprisonment and labor in the State penitentiary for three years. The prosecution against the plaintiff occurred in virtue of a statute of Ohio of March 7, 1835, and the particular clause on which the in- dictment was founded is in the following language, namely: "That if any person shall counterfeit any of the coins of gold, silver, or cop- per, currently passing in this State, or shall alter or put off counterfeit coin or coins, knowing them to be such,'' etc., "every person so offending shall be deemed guilty of a misdemeanor, and upon con- viction thereof shall be imprisoned in the penitentiary and kept at hard labor not more than fifteen, nor less than three years." As has been already stated, the plaintiff was convicted of the offence described in the statute, her sentence was afllrmed hy the Supreme Court of the State, and with the view of testing the validity of the sentence, a writ of error to the latter court has been issued. With the exceptions taken to the formality or technical accuracy of 64 CASES ON CRIMINAL LAW, [CHAP. II. the pleadings pending the prosecution, this court can have nothing to do. The only question with which it can regularly deal in this case is the following, namely : Whether that portion of the statute of Ohio, under which the prosecution against the plaintiff has taken place, and consequently whether the conviction and sentence founded on the statute are consistent with or in contravention of the Constitution of the United States, or of any law of the United States enacted in pur- suance of the Constitution? For the plaintiff, it is insisted that the statute of Ohio is repugnant to the fifth and sixth clauses of the 8th section of the first article of the Constitution, which invest Congress with the power to coin money, regulate the value thereof and of foreign coin, and to provide for the punishment of counterfeiting the current coin of the United States ; contending that these clauses embrace not only what their language directlj"^ imports, and all other offences which maj' be denominated offences against the coin itself, such as counter- feiting, scaling, or clipping it, or debasing it in any mode, but that they embrace other offences, such as frauds, cheats, or impositions be- tween man and man by intentionally circulating or putting upon any person a base or simulated coin. On behalf of the State of Ohio, it is insisted that this is not the correct construction to be placed upon the clauses of the Constitution in question, either by a natural and philological interpretation of their language or bj^ any real necessity for the attainment of their objects ; and that if any act of Congress should be construed as asserting this meaning in the Constitution, and as claiming from it the power contended for, it would not be a law passed in pursuance of the Constitution, nor one deriving its authority regularly from that instrument.'^ 1 [Act of March 3, 1825. " An Act more effectually to provide for the punishment of certain crimes against the United States and for other purposes." (4 U. S. Stats, at Large, pp. 115, 121.) " Sect. 20. And be it further enacted. That, if any person, or persons, shall falsely make, forge or counterfeit, or cause or procure to be falsely made, forged, or coun- terfeited, or willingly aid or assist in falsely making, forging or counterfeiting any coin, in the resemblance or similitude of the gold or silver coin, which has been, or hereafter may be, coined at the mint of the United States ; or in the resemblance or similitude of any foreign gold or silver coin which by law now is, or hereafter may be made current in the United States ; or shall pass, utter, publish, or sell or attempt to pass, utter, publish, or sell, or bring into the United States, from any foreign place, with intent to pass, utter, publish, or sell, as true, any such false, forged, or counterfeited coin, knowing the same to be false, forged or counterfeited, with intent to defraud any body politic, or corporate, or any other person or persons, whatsoever ; every person, so offending, shall be deemed guilty of felony, and shall, on conviction thereof, be punished by fine, not exceeding five thousand dollars, and by imprison- ment, and confinement to hard labor, not exceeding ten years, according to the aggra- vation of the offence."] SECT. XII.] FOX V. STATE OP OHIO. 65 We think it manifest that the language of the Constitution, by its proper signification, is limited to the facts, or to the faculty in Con- gress of coining and of stamping the standard of value upon what the government creates or shall adopt, and of punishing the offence of producing a false representation of what maj' have been so created or adopted. The imposture of passing a false coin creates, produces, or alters nothing ; it leaves the legal coin as it was, afi'ects its intrinsic value in no wise whatsoever. The criminalitj' of this act consists in the obtaining, for a false representative of the true coin, that for which the true coin alone is the equivalent. There exists an obvious difference, not only in the description of these offences, but essentially also in their characters. The former is an offence directly against the government, by which individuals may be affected ; the other is a private wrong, by which the government may be remotely, if it will in any degree be, reached. A material distinction has been recognized between the of- fences of counterfeiting the coin and of passing base coin by a gov- ernment which may be deemed sufficiently jealous of its authority ; sufflcientlj^ rigorous, too, in its penal code. Thus, in England, the counterfeiting of the coin is made high treason, whether it be uttered or not ; but those who barely utter false money are neither guilty of treason nor of misprision of treason. 1 Hawkin's Pleas of the Crown, 20. Again, 1 East's Crown Law, 178, if A. counterfeit the gold or sUver coin, and by agreement, before such counterfeiting, B. is to re- ceive and vent the money, he is an aider and abettor to the act itself of counterfeiting, and consequently a principal traitor within the law. But if he had merely vented the monej' for his own private benefit, knowing it to be false, in fraud of any person, he was only liable to be punished as for a cheat and misdemeanor, etc. These citations from approved English treatises on criminal law are adduced to show, in addition to the obvious meaning of the words of the Constitution, what has been the adjudged and established import of the phrase " counterfeiting the coin," and to what description of acts that phrase is restricted. It would follow from these views, that if within the power conferred by the clauses of the Constitution above quoted can be drawn the power to punish a private cheat effected by means of a base dollar, that power certainly cannot be deduced from either the common sense or the ad- judicated meaning of the language used in the Constitution, or from any apparent or probable conflict which might arise between the Fede- ral and State authorities, operating each upon these distinct characters of offence. If any such conflict can be apprehended, it must be from some remote and obscure and scarcely comprehensible possibility, which can never constitute an objection to a just and necessary State power. The punishment of a cheat or a misdemeanor practised within 6 6& CASES ON CRIMINAL LAW. [CHAP, II. the State, and against those whom she is bound to protect, is peculiarly and appropriately within her functions and duties, and it is difficult to imagine an interference with those duties and functions which would be regular or justifiable. It has been objected on behalf of the plaintiff in error, that if the States could inflict penalties for the oflfence of pass- ing base coin, and the Federal government should denounce a penalty against the same act, an individual under these separate jurisdictions might be liable to be twice punished for the one and the same crime, and that this would be in violation of the fifth article of the amendments to the Constitution, declaring that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. Conceding for the present that Congress should undertake, and could rightfully un- dertake, to punish a cheat perpetrated between citizens of a State be- cause an instrument in effecting that cheat was a counterfeited coin of the United States, the force of the objection sought to be deduced from the position assumed is not perceived ; for the position is itself without real foundation. The prohibition alluded to as contained in the amend- ments to the Constitution, as well as others with which it is associated in those Articles, were not designed as limits upon the State govern- ments in reference to their own citizens. They are exclusively restric- tions upon Federal power, intended to prevent interference with the rights of the States and of their citizens. Such has been the interpre- tation given to those amendments bj' this court, in the case of Barron V. The Mayor and City Council of Baltimore, 7 Pet. 242 ; and such indeed is the only rational and intelligible interpretation which those amendments can bear, since it is neither probable nor credible that the States should have anxiouslj' insisted to ingraft upon the Federal Constitution restrictions upon their own authority, — restrictions which some of the States regarded as the sine qua non of its adoption by them. It is almost certain that in the benignant spirit in which the in- stitutions both of the State and Federal systems are administered, an offender who should have suffered the penalties denounced by the one would not be subjected a second time to punishment by the other, for acts essentially the same, unless indeed this might occur in instances of peculiar enormity, or where the public safety demanded extraordinary rigor. But were a contrary course of policy and action either probable or usual, this would by no means justify the conclusion that offences falling within the competency of different authorities to restrain or pun- ish them would not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration. The par- titular offence described in the Statute of Ohio, and charged in the in- dictment against the plaintiff in error, is deemed by this Court to be clearly within the rightful power and jurisdiction of the State. So far SECT. XII.] COMMONWEALTH V. FELTON. 67 then neither the statute in question nor the conviction and sentence founded upon it can be held as violating either the Constitution or any law of the United States made in pursuance thereof. The judgment of the Supreme Court of the State of Ohio, affirming that of the Court of Common Pleas, is therefore in all things, affirmed.^ COMMONWEALTH v. FELTON, 101 Mass. 204 [1869]. Indictment charging that James D. Martin, as cashier of the National Hide and Leather Bank, a banking association incorporated under the laws of the United States, embezzled the funds of the bank, and that Alexander C. Felton was an accessorj' thereto before the fact. The defendants filed separate pleas to the jurisdiction, alleging that the United States courts had exclusive cognizance of the offences charged in the indictment, as against both defendants, and that they both had, before the pendency of this indictment, been indicted in the United States Circuit Court. In the Superior Court, Ames, C. J., allowed Martin's plea, but overruled the plea of Felton, who thereupon pleaded nolo contendere and alleged exceptions. C. Allen, Attornej'-General {J. C. Davis, Assistant Attorney-Gen- eral with him), for the Commonwealth An indictment may be main- tained in the courts of this Commonwealth for being accessory before the fact to an embezzlement, by a bank officer, of the funds of a na- tional bank. It may be conceded that the United States courts have exclusive jurisdiction of the offence committed by the bank officer. Still, that offence is fully within the terms of the Gen. Sts. c. 161, § 39, and in the absence of any statute of the United States covering the offence, the principal would be punishable under the laws of the Commonwealth. Commonwealth v. Tenney, 97 Mass. 56. But for the passage of the United States St. of 1864, c. 106,^ the courts of 1 [See Dashing v. State, 78 Ind. 357 (1886).] 2 [United States Stats. 1864, c. 106, § 56. And he it further enacted, That every president, director, cashier, teller, clerk, or agent of any association, who shall em- bezzle, abstract, or wilfully misapply any of the moneys, funds, or credits of the association, or shall, without authority from the directors, issue or put in circulation any of the notes of the association, or shall, without such authority, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any ac- ceptance, assign any note, bond, draft, bill of exchange, mortgage, judgment, or decree, or shall make any false entry in any book, report, or statement of the asso- ciation, with intent, in either case, to injure or defraud the association or any other 68 CASES ON CBIMINAL LAW. [CHAP. II. the Commonwealth would clearly have had jurisdiction of the offence charged against Felton, as well as jurisdiction of the offence commit- ted by the principal. The latter jurisdiction is by that statute trans- ferred to the United States courts, but not the former. Is the former therefore destroyed and the criminal rendered dispunishable? The United States may well punish the principal and the Commonwealth the accessory. There is nothing to prevent national and State courts from exercising concurrent jurisdiction over both principal and acces- sory, if the United States statute should so provide. The jurisdiction of the Commonwealth to punish criminals does not rest on any con- cession by Congress. Under our statutes, and independently of the United States statute, the cashier would be punishable as principal and Felton as accessory. Jurisdiction over the offence of the cashier has been taken away. Why should not the jurisdiction over the acces- sory remain ? Ames, J. The indictment against this defendant charges him with a crime of so grave a character that it ought to be made a matter of judicial investigation somewhere, upon the facts and merits. But as he is indicted for the same transaction in two different jurisdictions, namely, in the Circuit Court of the United States and in the Superior Court of this Commonwealth, it becomes necessary to decide to which, if to either, of these two jurisdictions he is properly amenable ; or, to state the question with more strict accuracj', whether he is liable to be proceeded against under the laws of this Commonwealth. The statutes of this Commonwealth (Gen. Sts. c. 161, § 39) have made full and ample provision for the case of the embezzlement or fraudulent appropriation by any cashier or other officer of any incor- porated bank of any of the funds of such bank. This description of crime by our laws is a felony, atid is punishable by imprisonment in the State prison. It has recently been decided that the language of this statute is broad enough to include banking corporations organized under the laws of the United States and located in Massachusetts, as well as like corporations created by the laws of this State. Common- wealth V. Tenney, 97 Mass. 50. So far as the case depends on our own legislation, and if nothing has been done to impair the jurisdiction of our own tribunals in such a case, there can be no doubt that Martin, the cashier of the Hide and Leather National Bank, could well be indicted and tried in the Superior Court for embezzlement of the funds of the bank, and this defendant could also in like manner be indicted company, body politic or corporate, or any individual person, or to deceive any offi- cer of the association, or any agent appointed to examine the affairs of any such association, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment not less than five nor more than ten years.] SECT. XII.] COMMONWEALTH V. PBLTON. 69 jointl}' with him, or separately, as accessory before the fact to the same embezzlement. But the act of Congress (U. S. St. 1864, c". 106) from which the national banks derive their existence and organization contains a sec- tion (§ 39) [55 ?] which also makes full and ample provision for the punishment of the crime of embezzlement and fraudulent appropriation of any funds of a national bank by any cashier, etc. , of such bank. It exactly covers the crime imputed to Martin. It declares that de- scription of crime to be a misdemeanor, and makes it punishable by imprisonment in the State prison. It makes no provision or reserva- tion for its prosecution and punishment by any State authority, but makes it cognizable under the authority of the United States. By the terms of the Judiciary Act (U. S. St. 1789, c. 20, § 11), the courts of the United States are vested with the exclusive cognizance of all crimes that are made punishable by act of Congress, except where the act of Congress makes other provision ; and it would therefore seem that the crime of embezzlement by a cashier of a national bank located within our territory is taken out of the jurisdiction of our courts. This is at least strongly implied in Commonwealth v. Tennej', and in fact is conceded by the learned Attorney-General in the argument of this case. See also Commonwealth v. Fuller, 8 Met. 313. If Martin, then, as a bank officer, is not amenable in our courts for embezzlement from the bank, can Felton be indicted in the same courts, as an accessory before the fact, for the same embezzlement? The technical and somewhat narrow rule of the common law on the subject of principal and acces- sory has been very extensively and reasonably enlarged by modern legislation. "Whoever counsels, hires, or otherwise procures a fel- ony to be committed, may be indicted and convicted as an accessory before the fact, either with the principal felon, or after his conviction ; or may be indicted and convicted of a substantive felony, whether the principal felon has or has^not been convicted, or is or is not amenable to justice." Gen. Sts. c. 168, § 4. But the difficulty in the way of holding the defendant upon the present indictment is, that the act of Congress has taken the crime of the principal out of our jurisdiction. Our courts cannot deal with him upon that charge. B3' the terms of the same act, which in this matter is the controlling authority, the crime of the principal has ceased to be a felony and has become a misdemeanor only, — a description of crime in which there are no accessories. A defaulting cashier of a national bank, however flagrant his embezzlement may be, so far from being a principal felon, is not in legal strictness a felon at all ; and it would seem to be impossible, therefore, to say that Felton, even if he in fact counselled, hired, or otherwise procured the crime to be committed, can be said to be 70 CASES ON CRIMINAL LAW, [CHAP. IL thereby rendered accessory to a felony within the, terms of the aboYe cited statute. Gen. Sts. c. 168, § 4. The effect, of our decision may very probably be to leave what is charged as a great crime to go wholly unpunished and untried ; but that is a result which we have no power to prevent. Exceptions sustained. COMMONWEALTH v. BARRY, 116 Mass. 1 [1874]. Indictment on the Gen. Sts. c. 161, §^ 43, charging the defendant on October 21, 1871, with feloniously buying and receiving and aiding in the concealment of certain legal-tender notes and bank bills of the goods, chattels, and moneys of the National Mahawie Bank, knowing the same to have been feloniously stolen, the said legal-tender notes and|bank bills having been before then feloniously stolen, taken, and carried away by one WiUiam S. Hine. J. M. Barker {E. M. TPooc? with him), for the defendant. 1. The offence of the defendant was only cognizable by the courts of the United States. It appeared in evidence that Hine was the teller of the National Mahawie Bank, which was organized under the U. S. St. of 1864, c. 106, and that while such teller, he abstracted and took from the vault of the bank a large sum of money belonging to the bank, and converted it to his own use. This was an ofl'ence under § 55 of that Act, and was punishable as a misdemeanor. There was evidence tending to show that the defendant aided and abetted Hine in taking said money and converting it to his own use, advising with him in re- gard to taking the money, and assisting him in carrj'ing the same to Van Densenville, and receiving and concealing a portion of the same. By so doing he committed an offence under the U. S. St. of 1869, c. 145. The offence was only cognizable by the courts of the United States. The U. S. St. of 1789, c. 20, § 11, provides that the Circuit Courts of the United States " shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct." No law of the United States gives to the State courts cognizance of offences under the U. S. St. of 1864, c. 106, or the U. S. St. of 1869, c. 145. It therefore follows that the State courts have no jurisdiction of the offence committed by the de- fendant. Commonwealth v. Felton, 101 Mass. 204 ; Prigg's Case, 16 Pet. 539, 617 ; Houston v. Moore, 5 Wheat. 1,27; 1 Kent Com. (12th SECT. Xn.] COMMONWEALTH V. BARRY. 71 ed.) 399 ; Commonwealth v. Fuller, 8 Met. 313, 319 ; Commonwealth V. Tenney, 97 Mass. 50. 2. The offence of Hine, as stated in his own testimony, was embezzle- ment and not larceny. He was the teller of the bank ; that is, the oflScer who receives and pays out its money ; and as he testifies, that upon that evening at half-past eight o'clock, he himself placed the monej-s of the bank in the safe, inside the vault, and fastened the doors, as teller of the bank he could lawfully take its moneys froni the safe and pay them to third persons, and his office of teller con- tinued in the night-time as well as during tljie day. This case is dis- tinguishable from Commonwealth v. Davis, 104 Mass. 548, by the fact that in the latter case the defendant had no right to remove the goods, or to sell them, or have even the bare custody of them, being simply a clerk and packer in the employ of the owner of the goods. 3. It is entirely immaterial whether the crime of Hine was embezzle- ment or larceny. Whichever it was, all the acts which he did from the time when he took the money out of the vault, until he and the defend- ant parted at Van Deusenville, constituted an offence under the U. S. St. of 1864, c. 106, § 55 ; and in doing aU these acts he was, according to the testimony, aided and abetted by the defendant, who, in doing all that he did, committed an offence under the U. S. St, of 1869, c. 145, which offence was cognizable by the courts of the United States, and only there. Wells, J. The only question argued before us by the defendant is that of jurisdiction. It is contended that when an offence is punishable both by the laws of a State and by those of the United States, the juris- diction of the courts of the latter excludes that of the State courts, un- less otherwise provided by the laws of the United States. If we assume that position to be correct, it does not meet this case. The offence charged in the indictment, upon which the defendant was found guilty, is that of receiving and aiding in the concealment of stolen property, under the Gen. Sts. c. 161, § 43. The count recites the pre- vious larceny of the property, consisting of money, from the National Mahawie Bank, by William: S. Hine, Both this and the principal of- fence of Hine, as set forth, are independent of any trust and of any relation of either to the bank as officer, clerk, or agent. But such rela- tion and breach of trust are essential elements in the offence punishable under the laws of the United States. The U. S. St. of 1864, c. 106, § 55 provides, " That every president, director, cashier, teller, clerk, or agent of any association, who shall embezzle, abstract or wilfully misapply any of the moneys, funds, or credits of the association " shall be deemed guilty of a. misdemeanor, and upon conviction thereof shall be punished by imprisonment not less than five nor more than ten years. 72 CASES ON OKIMINAL LAW. [CHAP. 11. The two offences are essentially different. The statute of the United States does not purport to punish larceny as such. The obvious infer- ence is that Congress did not intend to interfere with the jurisdiction of State laws and State courts over offences of that class against the prop- erty of national banks. The defendant contends that as it appeared in evidence that Hine was in fact teller of the bank and was enabled through that position to secure the means by which to " abstract" the funds from its vault, his offence comes within the terms of the statute of the United States, and is punishable exclusively under it ; and therefore that the accessorial offence of Bany cannot be punished at all. Commonwealth v. Felton, 101 Mass. 204. In our opinion, neither branch of this proposition can be maintained. In the first place, if the fact that Hine was teller of the bank subjects him to the punishment imposed for his breach of trust in that capacity, under the statute of the United States, it does not relieve him from his liability to punishment for the larceny at common law or under statutes of the State. There is no identity in the character of the two offences, although the same evidence may be relied upon to sustain the proof of each. An acquittal or conviction of either would be no bar to a prose- cution for the other. Commonwealth v. Tenney, 97 Mass. 50 ; Com- monwealth V. Hogan, 97 Mass. 122 ; Commonwealth v. Harrison, 11 Gray, 308 ; Commonwealth v. Shea, 14 Graj', 386 ; Commonwealth v. Carpenter, 100 Mass. 204 ; Morey v. Commonwealth, 108 Mass. 433. Exclusive jurisdiction of the one does not exclude jurisdiction of the other. Upon the facts stated it is clear that the offence of Hine was larceny and not embezzlement. Although as teller he was entrusted with funds of the bank while engaged in transacting its business, at night they were withdrawn from his possession and placed in such custody that he could not lawfully resume possession until the return of business hours and the concurrence of the cashier authorized him to do so. That custody was possession by the bank ; and his wrongful violation of it made the taking of the funds larceny. Commonwealth v. Berry, 99 Mass. 428 ; Commonwealth v. Davis, 104 Mass. 548. In the second place the offence of receiving stolen property is a sub- stantive crime in itself, and not merely accessorial to the principal of- fence of larceny. In this respect the case is clearly distinguishable from that of Commonwealth v. Felton, supra. Exceptions overruled. CHAP. III.j EEGINA V. BARTON. 73 CHAPTER III. The Mental Element in Crime. Insanity ; Dehnkenness ; Immaturity ; Coercion ; Peessdee OF Circumstances. REGINA V. BARTON, 3 Cox C. C. 275 [1848]. The prisoner was indicted for the wilful murder of Harriet Barton, on the 22d of June, by cutting her throat with a razor. Wells, for the prosecution, proved that the prisoner and the deceased were husband and wife, and that, up to the day named in the indict- ment, he had alwaj-s treated her and their children with kindness. On the afternoon of the 21st of June the prisoner and his wife were seen talking with their next-door neighbor at their door late at night, and at four o'clock in the following morning it was discovered that he had cut the throats of his wife and child, and that he had attempted to commit suicide. When questioned by the surgeon, he exhibited no sorrow or remorse for his conduct, but stated that " trouble and dread of poverty and destitution had made him do it, fearing that his wife and child would starve when he was dead." He also said that he had contem- plated suicide for a week past ; that he had not had any quarrel with his wife, and that, having got out of bed to destroy himself, the thought had first come into his head to kiU his wife and child ; that he had first attacked her while asleep in bed, and that she got away from him and rushed to the window, calling for help ; that he then killed the child, and seizing his wife, pulled her backwards towards him, in which position he had cut her throat. This done he next tried to cut his own throat, but his powers failed him and he did not succeed, though he wounded himself severely, his wife having fallen down dead by his side. This narrative, coupled with a knowledge of the prisoner's pri- vate circumstances, induced the surgeon to form the opinion that the prisoner at the time he committed the act had not, in conse- quence of an uncontrollable impulse to which all human beings were subject, any control over his conduct. The desire to inflict pain and injurj- on those previously dear to the prisoner was in itself a strong symptom of insanity, and the impossibility of resisting a sudden impulse 74 CASES ON CRIMINAL LAW. [CHAP. HI. to slay a fellow-being was another indication that the mind was in- sane. There was not necessarily a connection between homicidal and suicidal monomania, though it would be more likely that a monoma- niac who had contemplated suicide should kill another person than for one who had not entertained any such feelings of hostility to his own existence. Monomania was an affection which, for the instant, com- pletely deprived the patient of all self-control in respect of some one particular subject which is the object of the disease. It was true that the prisoner had no delusioA and his reasoning faculties did not seem to be affected ; but he had a decided monomania, evincing itself in the notion that he was coming to destitution. For that there was some foundation in fact, but it was his (the surgeon's) decided opinion that the prisoner was in an unsound state of mind at the moment he cut his wife's throat, though he would not be so in all cases of murder. It was also proved that on the 21st of June the prisoner had caused Ms razor to be sharpened, saying that he wanted it to give to some friend. Couch, for the prisoner, submitted that the jury were bound, after the testimony of the surgeon, to acquit the prisoner on the ground of insanity, and he proceeded to show by other witnesses that the prisoner had suffered a severe pecuniary loss not long before the occurrence of the dreadful event now the subject of inquiry, and that it had produced a decided effect on his mind, giving iise to the most gloomy anticipa- tions on account of his wife and family. Parke, B., told the jury that there was but one question for their consideration now ; namely, whether at the time the prisoner inflicted the wounds which caused the death of his wife, he was in a state of mind to, be made responsible to the law for her murder. That would depend upon the question whether he at the time knew the nature and charac- ter of the deed he was committing, and if so, Tirhether he knew he was doing wrong in so acting. This mode of dealing with the. defence of insanity had not, he was aware, the concurrence of medical men ; but he must nevertheless express his decided concurrence with Mr. Baron Eplfe's views of such cases, that learned judge, having expressed his opinion to be that the excuse of an irresistible impulse, co-existing with the full possession of reasoning powers, might be urged in justification of every crime known to the law, — for every man might be said, and truly, not to commit any crime except under the influence of some irre- sistible impulse. Something more than this was necessary to justify an acquittal on the ground of insanity, and it would be therefore for the jury to say whether, taking into consideration all that the surgeon had said, which was entitled to great weight, the impulse under which the prisoner had committed this deed was one which altogether deprived CHAP, ni.] BEGINA V. BURTON. 75 him of the knowledge that he was doing wrong. Cou,ld he distinguish between right and wrong? Reliance was placed on the desire to commit suicide, but that did not always evidence insanitj'. And here the prisoner was led to attempt his own life by the pressure of a real sub- stantial fact clearly apparent to his perceptive organs, and not by any unsubstantial delusion. The fact, however, must be taken into the ac- count, for it might have bad a serious effect on the mind of the pris- oner ; as also the absence of any attempt to escape from justice, and the want of all sense of sorrow and regret immediately after the death of his wife, contrasted with his more natural state of mind afterwards when he felt and expressed regret and sorrow for his act. These cir- cumstances ought all to be taken into consideration ; but it was diffi- cult to see how they could establish the plea of insanity in. a case where there was a total absence of all delusion. Guilty. Sentence of death passed.^ EEGINA V. BURTON, 3F. &F. 772 [1863]. The prisoner, a youth of eighteen, was indicted for the murder of a boy. WiGHTMAN, J., in summing up the case said : As there was no doubt about the act the only question was whether the prisoner at the time he committed it was in such a state of mind as not to be responsible for it. The prisoner's account of it was that he had done it from a morbid feeling ; that he was tired of life and wished to be rid of it. No doubt prisoners had been acquitted of murder on the ground of in- sanity ; but the question was what were the cases in which men were to be absolved from responsibility on that ground. Hatfield's case dif- fered from the present, for there wounds had been received on the head which were proved to have injured the brain. In the more recent case of Macnaghten, the judges had laid down the rule to be, that there must, to raise the defence, be a defect of reason from disease of the mind, so as that the person did not know the nature and quality of the act he committed, or did not know whether it was right or wrong. Now to apply this rule to the present case would be the duty of the jury. It was not mere eccentricity of conduct which made a man legally irresponsible for his acts. The medical man called for the defence defined homicidal mania to be a propensity to kill, and de- 1 [The prisoner was reprieved.] 76 CASES ON CRIMINAL LA"W. [CHAP. III. scribed moral insanity as a state of mind under which a man, perfectly aware that it was wrong to do so, killed another under an uncontrol- lable impulse. This would appear to be a most dangerous doctrine and fatal to the interests of societj' and security of life. The question is whether such a theory is in accordance with law. The rule as laid down by the judges is quite inconsistent with such a view ; for it was that a man was responsible for his actions if he knew the difference be- tween right and wrong. It was urged that the prisoner did the act to be hanged, and so was under an insane delusion ; but what delusion was he under? So far from it, it showed that he was quite conscious of the nature of the act and of its consequences. He was supposed to desire to be hanged, and in order to attain the object committed mur- der. That might show a morbid state of mind but not delusion. Homicidal mania again, as described b3- the witnesses for the defence, showed no delusion. It merely showed a morbid desire for blood. Delusion meant the belief in what did not exist. The question for the jury was whether the prisoner at the time he committed the act was laboring under such a species of insanity as to be unaware of the nature, the character, or the consequences of the act he committed, — in other words whether he was incapable of knowing that what he did was wrong. If so, they should acquit him ; if otherwise, they should find a verdict of guilty. Verdict guilty. EEGINA V. HAYNES, 1 F. & F. 666 [1859]. The prisoner, a soldier, was charged with the murder of Mary MacGowan, at the camp at Aldershott. The deceased was an " unfortunate woman" with whom the prisoner had been intimate, and was on the most friendlj' terms up to the mo- ment of the commission of the offence. No motive was assigned for the perpetration of the act ; and general evidence was given that the prisoner, while in Canada, having seduced a young woman under a promise of marriage, which he had been unable to fulfil by reason of his regiment having been ordered home, his mind had laeen much affected by the circumstance. Bramwell, B. {To the jury.) As to the defence of insanity set up for the prisoner, I will read you what the law is as stated by the judges in answer to questions put' to them by the House of Lords. {Having done so.) It has been urged for the prisoner that you CHAP, ni-] PEARSON'S CASE. 77 should acquit him on the ground, that it being impossible to assign any motive for the perpetration of the offence, he must have been acting under what is called a powerful and irresistible influence or homicidal tendenc}'. But I must remark as to that that the circum- stance of an act being apparently motiveless is not a ground from which you can safely infer the existence of such an influence. Mo- tives exist unknown and innumerable which might prompt the act. A morbid and restless (but resistible) thirst for blood would itself be a motive urging to such a deed for its own relief; but if an in- fluence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it. There are three powerful restraints existing, all tending to the assistance of the person who is suffering under such an influence, — the restraint of religion, the restraint of conscience, and the restraint of law. But if the influence itself be held a legal excuse, rendering the crime dispunishable, j'ou at once withdraw a most power- ful restraint, — that forbidding and punishing its perpetration. We must therefore return to the simple question 3'ou have to determine, — did the prisoner know the nature of the act he was doing ; and did he know that he was doing what was wrong ? ' Guilty. Sentence., death. The prisoner was reprieved. PEARSON'S CASE. 2 Lewin C. C. 144 [1835]. The prisoner was indicted for the murder of his wife. It was proved that in a fit of drunkenness he had beaten her in a cruel manner with a rake-shank, and that she died of the wounds and bruises which she received. His only defence was that he was drunk. Park, J. Voluntary drunkenness is no excuse for crime. If a party be made drunk by stratagem or the fraud of another he is not responsible. So drunkenness may be taken into consideration to explain the prob- ability of a party's intention in the case of violence committed on sud- den provocation. 1 [See Flanagan v. People, 52 N. Y. 457.] 78 CASES ON CRIMINAL LAW. [CHAP. III. HOPT V. PEOPLE, 104 U. S. 631 [-1881]. • •■•••••• Mr. Justice Gray delivered the opinion of the Court. The plaintiff in error was indicted, convicted, and sentenced for the crime of murder in the first degree in the District Court of the Third Judicial District of the Territory of Utah, and presented a bill of ex- ceptions, which was allowed by the presiding judge, and from his judg- ment and sentence appealed to the Supreme Court of the Territory, and that court having affirmed the judgment and sentence, he sued out a writ of error from this court. At common law, indeed, as a general rule, voluntary intoxication affords no excuse, justification, or extenuation of a crime committed under its influence. United States v. Drew, 5 Mass. 28 ; United States V. McGlue, 1 Curt. 1 ; Commonwealth v. Hawkins, 3 Gray (Mass.), 463 ; People V. Eogers, 18 N. Y. 9. Biit when a statute establishing differ- ent degrees of murder requires deliberate premeditation in order to con- stitute murder in the first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be ■ capable of deliberate premeditation, necessarily becomes a material sub- ject of consideration by the jury. The law has been repeatedly so ruled in the Supreme Judicial Court of Massachusetts in cases tried before a full court, one of which is reported upon other points (Commonwealth V. Dorsey, 103 Mass. 412) ; and in well-considered cases in courts of other States. Pirtle «. State, 9 Humph. (Tenn.) 663 ; Haile v. State, 11 id. 154 ; Kelly v. Commonwealth, 1 Grant (Pa.), Cas. 484 ; Keenan V. Commonwealth, 44 Pa. St. 55 ; Jones v. Commonwealth, 75 id. 403 ; People V. Belencia, 21 Cal. 544 ; People v. Williams, 43 id. 344 ; State V. Johnson, 40 Conn. 136, and 41 id. 584 ; Pigman v. State of Ohio, 14 Ohio, 555, 557. And the same rule is expressly enacted in the Penal Code of Utah, § 20: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to con- stitute any particular species or degree of crime, the jury may take mto consideration the fact that the accused was intoxicated at the time, m determining the purpose, motive, or intent with which he committed the act." Compiled Laws of Utah of 1876, pp. 568, 569. CHAP. III.] COMMONWEALTH V. HAWKINS. ' 79 REGINA V. GAMLEN, 1 F. & F. 90 [1858]. AssATXLT. The charge arose out of an affray at a fair, and there seemed some ground for supposing that the prisoner acted under appre- hension of an assault upon himself. All concerned were drunk. Ckowder, J. Drunkenness is no excuse for crime ; but in consider- ing whether the prisoner apprehended an assault on himself you may take into account the state in which he was. Not.guilty. EEGINA V. DOODT, 6 Cox C. C. 463 [1854]. The prisoner was indicted for unlawfully attempting to commit sui- cide at Wolverhampton, on the 5th of March, 1854. WiGHTMAN, J., told the jury that the offence charged constituted, be- yond all doubt, a misdemeanor at common law. The question for them to consider was whether the prisoner had a mind capable of contem- plating the act charged, and whether he did, in fact, intend to'take away his life. The prisoner alleged in his defence that he was drunk at the time, which must be taken to mean that he had no deliberate intention to destroy his life ; for the mere fact of drunkenness in this, as in other cases, is not of itself an excuse for the crime, but it is a material fact in order to arrive at the conclusion whether or no the prisoner really intended to destroy his life. Yerdict guilty. Sentence, three months' imprisonment. COMMONWEALTH v. HAWKINS, 3 Gray, 463 [1855]. Indictment against James Hawkins and James Hicks for the murder of Alexander T. Leet. The first count duly charged the murder to have been committed by a stab in the heart with a dirk-knife held by Hawkins. The second count charged the murder to have been com- mitted by blows of the fists of Hawkins and a wound with a metallic pitcher held by Hicks and a stab in the heart with a knife held by Hawkins, of which blows and wounds Leet died. The Attorney- 80 CASES ON CRIMINAL LAW. [CHAP. III. General entered a nolle prosequi as to Hicks ; and Hawkins was tried on the 30th of Ma3',1855, before the Chief Justice and Jus- tices Metcalf and Bigelow. The evidence was that, after insulting words had passed between Leet and Hawkins, who was somewhat under the influence of strong drink, they fought with their fists ; and while they were fighting, Hicks struck Leet on the head with a pewter pitcher, and Leet knocked Hawkins down and struck him after he was down ; and that a few minutes later (the evidence varying between eight minutes and a quar- ter of a hour), while Leet was washing the blood from the cut made by the pitcher, Hawkins came behind him and stabbed him in the heart with a dirk-knife, of which wound he died. The defendant's counsel did not controvert these facts ; but contended that the blow with the knife was struck in the heat of blood, under the violence of passion ex- cited by the previous combat and beating ; and that the defendant was guilty of manslaughter only. [For the defendants it was] contended that if upon the evidence the jury were satisfied that there was mutual combat, or other provocation sufficient to reduce the homicide from murder to manslaughter, pro- vided the fatal blow was struck in the heat of blood and paroxysm of anger thereby produced, so that they were called on to inquire whether, between the provocation and the crime, the defendant had reasonable time to cool, or did actually cool, it was proper for them to consider how far the defendant's intoxication had, or might have had, any efiect in prolonging that paroxysm of anger. But the Chief Justice instructed the jury thus : The rule of law is, that although the use of intoxicating liquors does to some extent blind the reason and exasperate the passions, yet, as a man voluntarily brings it upon himself, he cannot use it as an excuse or justification or exten- uation of crime. A man, because he is intoxicated, is not deprived of any legal advantage or protection ; but he cannot avail himself of his intoxication to exempt him from any legal responsibility which would attach to him, if sober. Verdict, guilty of manslaughter. CHAP. III.J EEGINA V. DAVIS. 81 EEGINA V. DAVIS, 14 Cox C. C. 563 [1881]. William Davis, thirty-eight, laborer, was charged with feloniously wounding his sister-in-law, Jane Davis, at Newcastle, on the 14th day of January, with intent to murder her. On the 14th day of January, 1881, the prisoner (who had been previouslj' drinking heavily, but was then sober) made an attack upon his sister-in-law, Mrs. Davis, threw her down, and attempted to cut her throat with a knife. Ordinarily he was a very mild, quiet, peace- able, well-behaved man, and on friendly terms with her. At the police station he said, " The man in the moon told me to do it. I will have to commit murder, as I must be hanged." He was examined by two medical men, who found him suffering from delirium tremens, result- ing from over-indulgence in drink. According to their evidence he would know what he was doing, but his actions would not be under his control. In their judgment neither fear of punishment nor legal nor moral considerations would have deterred him ; nothing short of actual phj'sical restraint would have prevented him acting as he did. He was disordered in his senses and would not be able to distin- guish between moral right and wrong at the time he committed the act. Under proper care and treatment he recovered in a week, and was then perfectly sensible. For the defence it was submitted that he was of unsound mind at the time of the commission of the act, and was not responsible for his actions. Stephen, J., to the jury. The prisoner at the bar is charged with having feloniously wounded his sister-in-law, Jane Davis, on the 14th day of January last, with intent to murder her. You will have to con- sider whether he was in such a state of mind as to be thoroughly re- sponsible for his actions ; and with regard to that I must explain to you what is the kind or degree of insanity which relieves a man from responsibility. Nobody must suppose — and I hope no one will be led for one moment to suppose — that drunkenness is anj' kind of excuse for crime. If this man had been raging drunk and had stabbed his sister-in-law and killed her, he would have stood at the bar guilty of murder beyond all doubt or question. But drunkenness is one thing and the diseases to which drunkenness leads are different things ; and if a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, which would have relieved him from responsibility if it had been caused in any other way, then 82 CASES ON CRIMINAL LAW. [CHAP. Ill, he would not be criminally responsible. In my opinion, in sucb a case the man is a madman and is to be treated as such, although his mad- ness ia only temporary. If j'ou think he was so insane that if his insanity had been produced by other causes he would not be respon- sible for his actions, then the mere fact that it was caused by drunk- enness will not prevent it having the effect which otherwise it would have had, of excusing him from punishment. Drunkenness is >no excuse, but delirium tremens caused by drunkenness may be an ex- cuse if you think it produces such a state of mind as would otherwise relieve him from responsibility. A person may be both insane and responsible for his actions, and the great test laid down in McNaugh- ten's Case (10 CI. & Fin. 200 ; 1 C. & K. 130 n) was whether he did or did not know at the time that the act he was committing was wrong. If he did — even though he were mad — he must be responsible; but if his madness prevented that, then he was to be excused. As I un- derstand the law, any disease which so disturbs the mind that you cannot think calmly and rationally of all the different reasons to which we refer in considering the rightness or wrongness of an action, — any disease which so disturbs the mind that you cannot perform that duty with some moderate degree of calmness and reason may be fairly said to prevent a man from knowing that what he did was wrong. Delirium tremens is not the primary but the secondary consequence of drinking, and both the doctors agree that the prisoner was unable to control his conduct, and that nothing short of actual phj'sical restraint would have deterred him from the commission of the act. If you think there was a distinct disease caused by drinking, but differing from drunkenness, and that by reason thereof he did not know that the act was wrong, you will find a verdict of not guilty on the ground of insanity ; but if you are not satisfied with that, you must find him guilty either of stab- bing with intent to murder or to do grievous bodily harm. The jury returned a verdict of Not Guilty on the ground of insanity. The prisoner was ordered to be detained during Her Majesty's pleasure. SECT. I.] COMMONWEALTH V. STEBBINS, 83 CHAPTER IV. The Mental Element in Ceime. iGNOIiANCE OE MISTAKE OF LaW ; IgNOEANCE OE MISTAKE OP Facts. Section 1. Ignoeance oe Mistake of Law. COMMONWEALTH v. STEBBINS, 8 Gbat, 492 [1857]. Indictment on Eev. Sts. c. 126, § 17, for the larceny of " sundry bank bills current within said Commonwealth, amounting to the sum of $210 and of the value of $210, and one gold coin current within said Commonwealth of the denomination of two dollars and fifty cents and of the value of two dollars and fifty cents, of the goods and chattels and money of one Patrick Dorsay," at Springfield on the 18th of Janu- ary, 1853. Trial in the Court of Common Pleas in Hampden at Decem- ber term, 1856, before Moeeis, J., who signed a bill of exceptions, the material parts of which were as follows : — The following facts appeared in evidence : In 1849 the defendant lent $200 in cash to Michael Dorsay in the presence of his son Patrick, and took his note therefor, payable on demand with interest. The money thus lent was used in keeping a shop in Holyoke by Patrick, in the name of Michael, who soon after died, leaving no will and no heirs but Patrick. No letters of administration were taken out upon his estate ; but Patrick took all his property and appropriated it to his own use, and went to Middletown in Connecticut to reside. On the 18th of January, 1853, Patrick came from Middletown and passed the night in Springfield at the house of Jerry Whalen, where the defendant also then was. "When Dorsay went to bed he placed under his pillow his pocket-book containing the bills and gold coin mentioned in the in- dictment. But one Dee, who was to sleep with Dorsay, insisting on having the money counted, Whalen took the pocket-book from under the pillow, and in the presence of Dee, of Dorsay, and the defendant counted the money upon a table near the bed. Immediately after it was counted the defendant took the bank bills and refused to give them up, saj'ing " that she had a right to it ; that she had been looking for it a long time and now she had got it ; that the old man owed her and 84 CASES ON CRIMINAL LAW. [CHAP. IV. now it was time for her to get her own." When she took the bills no part of Michael Dorsay's note which she held had been paid. The Court instructed the jury that Michael Dorsay's property de- scended to Patrick subject to the payment of debts ; that Patrick was an executor in his own wrong, and as such was liable on the claim held by the defendant against Michael Dorsay to the extent of his in- termeddling with his father's estate ; and that the defendant would not be guilty of larceny if the jury were satisfied that she took this money under an honest belief that she had a legal right to take this specific money in the way and under the circumstances that she did take it, although in fact she may have had no such legal right. Metcalp, J. 1. The instruction to the jury that the defendant was not guilty of larceny if she took the monej' under an honest belief that she had a legal right to take it was clearly unexceptionable. EEGINA V. TOWSE, 14 Cox C. C. 327 [1879]. Prisonee was indicted for having set fire to some furze growing on a common at Culmstock. It appeared from the evidence that persons living near the common had occasionally burnt the furze to improve the growth of the grass, although the existence of any right to do this was denied. But the prisoner in this case denied having set the furze on fire at all. Bullen, for the defence, contended that even if it were proved that the prisoner set the furze on fire she could not be found guilty if it ap- peared that she bona fide believed she had a right to do so, whether the right were a good one or not. Lopes, J. If she set fire to the furze thinking she had a right to do so that would not be a criminal offence. I shall leave two questions to the jury. 1. Did she set fire to the furze? 2. If yes, did she doit wilfully and maliciously? REX w. HALL, 3 C. & P. 409 [1828]. Indictment for robbing John Green, a gamekeeper of Lord Ducie, of three hare wires and a pheasant. It appeared that the prisoner had set three wires in a field belonging to Lord Ducie, in one of which this SECT. II.] levbt's case. 85 pheasant was caught, and that Green, the gamekeeper, seeing this, took up the wires and pheasant and put them into his pocket ; and it further appeared that the prisoner soon after this came up and said, " Have you got my wires?" The gamekeeper replied that he had and a pheasant that was caught in one of them. The prisoner then asked the gamekeeper to give the pheasant and wires up to him, which the gamekeeper refused ; whereupon the prisoner lifted up a large stick and threatened to beat the gamekeeper's brains out if he did not give them up. The gamekeeper, fearing violence, did so. Maclean^ for the prosecution, contended that by law the prisoner could have no property in either the wires or the pheasant, and as the gamekeeper had seized them for the use of the lord of the manor, under the statute 5 Anne c. 14, § 4, it was a robbery to take them from him by violence. Vaughan, B. I shall leave it to the jury to say whether the prisoner acted on an impression that the wires and pheasant were his property ; for however he might be liable to penalties for having them in his pos- session, yet if the jury think that he took them under a bona fide im- pression that he was only getting back the possession of his own property, there is no animus furandi, and I am of opinion that the prosecution must fail. Verdict, not guilty. Section 2. Ignorance oe Mistake of Pacts. LEVET'S CASE, 1 Hale P. C. 42. In the case of JOevet, indicted for the death of Frances Freeman, the case was, that William Levet being in bed and asleep in the night, his servant hired Frances Freeman to help her to do her work, and about twelve of the clock in the night, the servant going to let out Frances thought she heard thieves breaking open the door ; she therefore ran up speedily to her master and informed him that she thought thieves were breaking open the door. The master rising suddenly and taking a rapier ran down suddenly ; Frances hid herself in the buttery lest she should be discovered. JLevefs wife spying Frances in the buttery cried out to her husband, " Here they be that would undo us." Levet runs into the buttery in the dark, not knowing Frances but thinking her to be a thief, and thrusting with his rapier before him hit Frances in the breast mortally, whereof she instantly died. This was resolved to be neither murder nor manslaughter nor felony. 86 CASES ON CKIMINAL LAW. [CHAP. IV. REGINA V. BISHOP, 14 Cox C. C. 404 ; 15 Q. B. D. 259 [1880]. Case reserved for the opinion of this court by Stephen, J. Ehoda Hulse Bishop was tried before me at Northampton on the 20th and 21st days of -January, upon an indictment charging her with an offence against the 44th section of 8 & 9 Vict. e. 100, by receiving into her house two or more lunatics, such house not being an asylum or hospital registered under the Act, or a house duly licensed under the Act. It was proved on the trial that the defendant received into her house several young women for the purpose of medical treatment. Her step- daughter, who was called as a witness on her behalf and who took part in the management of the house, described them as patients suffering from "hysteria, nervousness, and perverseness," and it was proved that she advertised in newspapers for patients so described. She had besides these patients one inmate who was admitted to be a lunatic, with regard to whom she had complied with the requisitions of § 90 of the Act. There was conflicting evidence upon the question whether any of the other patients were lunatics or not, and as to the nature and degree of restraint to which they were subjected, and there was strong evidence to show that the defendant believed in good faith and on reasonable grounds that no one of them was a lunatic, but that aU were sufiering only under " hysteria, nervousness, or perverseness." I read to the jurj' the interpretation of "lunatic" given in § 114: "Lunatic shall mean every insane person, and every person being an idiot, or lunatic, or of unsound mind," and I told them that in my opinion these words would include everyone whose mind was so af- fected by disease that it was necessary for his own good to put him under restraint. I also told them that in my opinion the words ' ' receive one or more lunatics" meant receive " as lunatics, and in order to be treated as lunatics are treated in asj'lums," and I gave them this direction: " In order that the defendant may be convicted the jury must be of opinion that at least one other patient in the house besides the admitted luna- tic was either an insane person or an idiot or a lunatic or of unsound mind when received, and that such person was received into the house to be treated as a lunatic is treated in an asylum." I also told them that I was of opinion that if one other such person besides the admitted lunatic was so received, an honest belief on the SECT. II.] EBGINA V. BISHOP. 87 part of the defendant that that person was not a lunatic would be im- material ; but at the request of the counsel for the defendant I asked them if they convicted the defendant to find specially whether she be- lieved honestly and on reasonable grounds that any person so received was not a lunatic. The jury found the defendant guilty, but they found that she did honestly and on reasonable grounds believe that no one of her patients was a lunatic (except of course the admitted lunatic) . I directed the defendant to enter into her own recognizances to come up for judgment if called upon in order that she might have an oppor- tunity of complying with the provisions of the Act, but I reserved for the determination of the Court for Crown Cases Reserved the question whether my direction to the jury was right, in order that if it is wrong the conviction may be set aside. J. F. Stephen. 8 & 9 Vict. c. 100 (An Act for the Regulation of the Care and Treat- ment of Lunatics) , § 44 : — It shall not be lawful for any person to receive two or more lunatics into any house unless such house shall be an asylum or an hospital registered under this Act, or a house for the time being duly licensed under this Act, or one of the Acts hereinbefore repealed ; and any person who shall receive two or more lunatics into any house other than a house for the time being duly licensed, or an asylum or an hospital duly registered shall be guilty of a misdemeanor. Section 90 : — No person (unless he be a person who derives no profit from the charge, or a committee appointed by the Lord Chancellor) shall receive to board or lodge in any house other than an hospital registered under this Act, or an asylum or a house licensed under this Act, or under one of the Acts hereinbefore re- pealed, or take the care or charge 'of any one patient as a lunatic or alleged lunatic without the like order and medical certificates in respect of such pa- tient as are hereinbefore required on the reception of a patient (not being a pauper) into a licensed house, etc. Pollock, B. I agree that the conviction ought to be sustained, and I wish it to be understood that we aflSrm the direction of my brother Stephen that the word " lunatic" would include a person whose mind was so aflfected by disease that it was necessary for his own good to put him under restraint, in the sense that by restraint is meant re- straint of the same kind as that to which lunatics are subject in asylums. . . . With regard to the point whether the knowledge or ab- sence of knowledge of the keeper of the house as to the lunac}' of the persons received is material, I am clearly of opinion that it is not. 88 CASES ON CEIMINAL LAW. [CHAP. IV. Stephen, J> I am of the same opinion. Upon the question whether knowledge upon the part of the defendant was essential to the commit- tal of the offence under the Act I entertained no doubt at the trial, and I do not now. • •■■••••• Conviction affirmed. COMMONWEALTH v. MASH, 7 Met. 472 [1844]. The defendant was indicted, on the Rev. Sts. c. 130, § 2, for marry- ing a second husband while her former husband was living. At the trial in the municipal court, at August term, 1843, there was evidence tending to prove that the defendant was married to Peter Mash on the 7th of December, 1834, and that she afterwards cohabited with him until about the 10th of November, 1838, when he left home in the morning, saj'ing he should return to breakfast, and was not after- wards heard from by the defendant till about the middle of Maj', 1842, when he returned ; that on the 10th of April, 1842, she was married in Boston by a clergyman of competent authority to solemnize marriages in this Commonwealth, to William M. Barrett, with whom she cohabited in Boston until she heard that said Peter Mash was still living, when she immediately withdrew from said Barrett, and had no intercourse with him afterwards ; that she was of uniformly good character and virtuous conduct, and that she honestly believed, at the time of said second marriage, that said Peter Mash was dead ; that during his absence, as aforesaid, she made many inquiries, and was unable to obtain any information concerning him, or to ascertain whether he was or was not alive. The counsel for the defendant moved the Court to instruct the jury, that if they believed all the facts which the aforesaid evidence tended to prove, she was entitled to an acquittal. But the Court refused so to instruct the jury, and instructed them that the defendant's ignorance that her said husband Peter Mash was alive and her honest belief that he was dead constituted no legal defence. The jury found the defendant guilty, and she filed exceptions to the instruction of the Court. Shaw, C. J. The Court are of opinion that the instruction to the jury was right. The rule of law was certainly strongly expressed by the judge, no doubt in consequence of the terms in which the motion of the defendant's counsel was expressed. The rule as thus laid down in effect was, that a woman whose husband suddenly left her without SECT. II.] COMMONWEALTH V. MASH. 89 notice, and saying when he went out that he should return immedi- ately, and who is absent between three and four years, though she have made inquiry after him and is ignorant of his being alive, but honestly believes him to be dead, if she marries again, is guiltj' of polygamy. The correctness of this instruction must of course depend upon the construction of the Rev. Sts. c. 130, which regulate this sub- ject. The 2d section imposes a penalty upon any person who, having a former husband or wife, shall marry another person, with some excep- tions. The 3d section excepts from the operation of the statute " any person whose husband or wife shall have been continually remaining beyond sea, or shall have voluntarily withdrawn from the other and remained absent for the space of seven j-ears together, the party marrying again not knowing the other to be living within that time." It appears to us that in a matter of this importance, so essential to the peace of families and the good order of societ}', it was not the intention of the law to make the legality of a second marriage, whilst the former husband or wife is in fact living, depend upon ignorance of such absent party's being alive, or even upon an honest belief of such person's death. Such belief might arise after a very short absence. But it appears to us that the legislature intended to prescribe a more exact rule, and to de- clare as law that no one should have a right upon such ignorance that the other party is alive, or even upon such honest belief of his death, to take the risk of marrying again, unless such belief is confirmed by an absence of seven years, with ignorance of the absent party's being alive within that time. It is analogous to other provisions and rules of law, by which a continued absence of a person for seven years, without being heard of, will constitute a presumption of his death. Lorin'g v. Steine- man, 1 Met. 204 ; Greenl. on Ev. § 41. We are strongly confirmed in this construction of the statute, and that such was the deliberate expression of the legislative will, by refer- ence' to the report of the commissioners for revising the statutes. It appears by their report upon this provision that they prescribed a much more mitigated rule, and proposed to extend the exception "to any person whose former husband or wife, having been absent one year or more at the time of such second marriage, shall be believed to be dead." This proposal was stricken out by the committee appointed to consider the report of the commissioners, and the legislature adopted their amend- ment and passed the law as it stands, without the proposed additional exception. This shows at least that the attention of the legislature was called to the subject, and that it was by design, and not through inad- vertence, that the law was framed as it is. It was urged in the argument that where there is no criminal intent, there can be no guilt ; and if the former husband was honestly believed 90 CASES ON CRIMINAL LAW. [CHAP. IV. to be dead, there could be no criminal intent. The proposition stated is undoubtedly correct in a general sense ; but the conclusion drawn from it in this case by no means follows. Whatever one voluntarily does, he of course intends to do. If the statute has made it criminal to do any act under particular circumstances, the party voluntarily doing that act is chargeable with the criminal intent of doing it. On this subject the law has deemed it so important to prohibit the crime of polygamy, and found it so diflfioult to prescribe what shall be suflacient evidence of the death of an absent person to warrant a belief of the fact ; and as the same vague evidence might create a belief in one mind and not in another, the law has also deemed it wise to fix a definite period of seven years' continued absence, without knowledge 6f the contrary, to warrant a belief that the absent person is actually dead. One there- fore who marries within that time, if the other party be actually living, whether the fact is believed or not, is chargeable with that criminal in- tent, by purposely doing that which the law expressly prohibits. Exceptions overruled. [The Court did not pass sentence on the defendant, but took a recog- nizance for her appearance in court at a future da}'. On the 9th of July, 1844, the defendant received a full pardon from the governor, which she brought into court on the 16th of said July and pleaded the same in bar of sentence. Whereupon the Court ordered her to be discharged. * SQUIRE V. THE STATE,'' 46 IKDIANA, 459 [1874]. BusKiKK, J. This was a prosecution for bigamy. The appellant, upon a plea of not guilty, was tried by a jury and found guilty, and 1 [The Queen v. Tolson, 23 Q. B. D. 168. The prisoner was convicted under 24 & 25 Vict. c. 100, § 57, of bigamy, having gone through the ceremony of marriage within seven years after she had been deserted by her husband. The jury found that at the time of the second marriage she in good faith and on reasonable grounds believed her husband to be dead. Held, by Lord Coleridge, C. J., Hawkins, Stephen, Cave, Day, A. L. Smith, Wills, Grantham, and Charles, JJ. (Denman, Field, and Manisty, JJ., and Pollock and Hud- dleston, BB., dissenting), that a bona fide belief on reasonable grounds in the death of the husband at the time of the second marriage afforded a good defence to the indictment, and that the conviction was wrong.] 2 [If any person being married shall marry again, the former husband or wife being alive and the bond of matrimony still undissolved and no legal presumption of death having arisen, such person so offending shall be deemed guilty of bigamy," etc. Sect. 46, 2 Gavin & Hord (Indiana Statutes), 452.] SECT, n.] SQUIRE V. THE STATE. 91 over motions for a new trial and in arrest judgment was rendered on the verdict. The motion for a new trial was based upon the admission of incom- petent evidence, the insufficiencj' of the evidence to support the ver- dict, and the refusal of the Court to give certain instructions asked by the appellant. The appellant requested the Court to give the following instruction : " That if the jury believe from all the evidence in the case that the defendant married the second time in the honest belief that his former wife had been divorced from him, they should find him not guilty ; " but the Court refused to so charge, and this refusal was assigned as a reason for a new trial and is relied upon here to reverse the judgment. The appellant testified in his own behalf. The substance of his testi- mony was, that he left tlie State of New York about two years ago and came to this State, where he had resided ever since ; that he left his wife in the city of Buffalo, in the State of New York, she refusing to come "West with him ; that he came to Washington, Daviess County, Indiana, in July, 1873, where he had ever since resided and still re- sides ; that he had not been in the State of New York since he left there, two years ago, but he had received letters from his parents and brothers in the State of New York informing him that his wife Eliza- beth had procured a divorce from him in said State of New York ; and that he had married the said Ruth Summers under the belief that such information was true. Bishop on Criminal Law, in sect. 303, vol. i., p. 187, says: "The wrongful intent being the essence of every crime, the doctrine necessa- rily follows that, whenever a man is misled without his own fault or carelessness concerning facts, and while so misled acts as he would be justified in doing were the facts what he believes them to be, he is legally innocent the same as he is innocent morally." The same author in his work on Statutory Crimes in sect. 355, p. 234, says : "In the cases mentioned in the preceding sections there is no crime because, by a rule of the common law, there can be none where the criminal mind is wanting. But the reason why it is wanting in these cases is, that either in consequence of a technical rule or by force of a natural fact, it is impossible the criminal mind should exist ; since that cannot be for whose existence there is no capacity. But there may be a capacity for the criminal intent while yet no crime is com- mitted, even though the outward fact of what otherwise were crime transpires. It is so where one, having a mind free from all moral culpability, is misled concerning facts. If in such a case he honestly 92 CASES ON CEIMINAL LAW. [CHAP. IV. believes certain facts to exist, and though they do not, acts as he would be legally justified in acting if what he erroneously believes to be were real, he is justified in law the same as he is in morals. The books are full of illustrations of this doctrine, and the reader perceives that in reason it must govern statutory crimes the same as crimes at the common law." » The same author in sect. 356 illustrates the above doctrine as applica- ble to a prosecution for bigamy when he says ; " But this exception has no relation to a case in which, on independent information and special grounds, a husband or wife is really believed to be dead. Sup- pose, for example, a husband intending to entrap his wife goes out ostensibly on a sail with confederates, and they come back and repre- sent that he is drowned, while he secretly escapes abroad ; she believes the statement, administers on his eflfects, and at the end of a year marries. Then he returns and procures her indictment for polygamy. On a just consideration the common-law rule and not the statutory one prevails, and she should be acquitted." The same rule would apply to the dissolution of the marriage relation by divorce as by death. We think the Court should have charged the jury, if it had been so asked, that if they believed from the evidence that the defendant had been informed that his wife had been divorced, and that he had used due care and made due inquiry to ascertain the truth, and had, consid- ering all the circumstances, reason to believe and did believe at the time of his second marriage that his former wife had been divorced from him, they should find him not guilty. There was probably no error in i-efusing the instruction as asked, as it was based solely upon the belief of the defendant, and did not re- quire that such belief should be the result of "due care and careful inquiry, and that he should have reasonable grounds to entertain such belief. • ••••••• ■ ^^ • / CHAP, v.] KEX V. OGDEN. 93 CHAPTER V. ' The Mental Element in Crime. Intent to do Wrong. Eeligious Convictions. REX V. JAMES OGDEN, 6 C. & P. 631. The prisoner was indicted for unlawfully transposing and removing from one piece of wrought plate to another, namelj', from one gold ring to another, the lion passant, contrary to the statutes.' The principal evidence to affect the prisoner was his own statement at Goldsmiths' Hall, in answer to questions put to him by the prime warden of the companj', and also his examination at Hatton Garden Police Offlee. On the whole of the facts, it appeared that the pris- oner, who was a working jeweller, was employed by a regular cus- tomer, named Beeby, to make a gold ring of a particular size and weight. When it was sent home it was found to require alteration, and was sent back. Mr. Beeby, who was called as a witness for the prosecution, stated that he could not say that the ring when first sent home had not the hall mark upon it, but he was inclined to think that it had. The deputy touchwarden of the Goldsmiths' Company proved that the marks of the lion passant and the small Roman T, denoting the date, had been transferred from another ring to that in question. The prisoner's account of the transaction given on the 6th of Novem- ber, when he was first taken before the magistrate, was as follows : ..." The ring being shown to the prisoner, and he being asked whether he had anything to say, his answer was, ' It was sent to me to be made by Mr. Beeby, of Red Lion Street, a spoon-maker. I made it and sent it home. It was returned to me to make heavier and a little smaller, and in doing so I obliterated the hall mark ; and the parties sending to me that the ring must be sent home that day, I destroyed another ring, and put the hall mark of it into this ring. ' " On the next day, the 7th, the prisoner was brought up again, and he then said, " The ring now produced is a genuine ring ; it has been 1 13 Geo. 3, c. 52, § 14, and 38 Geo. 3, c. 69, § 7. The words used in both those statutes are " transpose or remove, or cause to be transposed or removed, from one piece of wrought plate to another, or " etc. ^ 94 CASES ON CRIMINAL LAW. [CHAP. V. stamped at the hall ; it was sent there with my work." This state- ment was returned with the depositions, and dated as if it had been made on the 6th. BoLLAND, B. (in summing up), said : By the act referred to, the Goldsmiths' Company are bound to have a certain mark, and there is no doubt that the prisoner made the ring in question, and there is no doubt also that the mark has been transposed from some other ring. The statement of the prisoner, which was read from the book, ought certainly to have been returned with the other depositions ; for what is said by a prisoner is a part of the examination, and ought to be returned by the magistrate. But notwithstanding this irregularity, I cannot say that it is not evidence. There is no proof that the ring is not genuine gold ; if there had been it would be a more obvious sign of fraud than the merely saving the duty. We must therefore take it that there has been no fraud on the part of the prisoner, as far as the substituting an inferior kind of metal for genuine is concerned. The question is, whether the prisoner has been guilty of transposing the hall mark of the company from one piece of wrought plate to another. The prisoner received an excellent character from many witnesses, and the jury delivered their verdict in the following words : " We find him guilty of transposing the hall mark from one genuine ring to an- other genuine ring ; but without any fraudulent intention." BoLLAND, B. There are no words in the act of Parliament referring to any fraudulent intention. The words of it are, " shall transpose or remove, or cause or procure to be transposed or removed, from one piece of wrought plate to another." Unfortunately for the prisoner, I fear it can be only a verdict of guilty ; but I will make a minnte of it for further consideration. The jury then found the defendant guilty, but most strongly recom- mended him to mercy, and the Goldsmiths' Company joined in the recommendation . Paek, J. The statute is express ; the Court has no power to miti- gate the sentence. It was intimated that the recommendations would be forwarded to the proper quarter.* [1 The prisoner received pardon.] CHAP. V.J BEYNOLDS V. UNITED STATES. 95 REYNOLDS v. UNITED STATES, 98 U. S. 145 [1878]. Error to the Supreme Court of the Territory of Utah. This is an indictment found in the District Court for the third judi- cial district of the Territory of Utah, charging George Reynolds with bigamy, in violation of § 5352 of the Revised Statutes, which, omit- ting its exceptions, is as follows : — " Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than f 500, and by imprisonment for a term of not more than five years." Mr. Chief Justice "Waite delivered the opinion of the Court. 5. As to the defence of religious belief or duty. On the trial the plaintiff in error, the accused, proved that at the time of his alleged second marriage he was, and for many years before had been, a member of the Church of Jesus Christ of Latter-Daj' Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church "that it was the duty of male members of said church, circumstances permit- ting, to practise polj'gamy ; . . . that this duty was enjoined by dif- ferent books which the members of said church believed to be of divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church ; that the failing or refusing to practise polygamy by such male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come." He also proved " that he had received permission from the recognized authorities in said church to enter into polygamous marriage ; . . . that Daniel H. Wells, one having author- ity in said church to perform the marriage ceremony, married the said defendant on or about the time the crime is alleged to have been com- mitted, to some woman by the name of Schofield, and that such mar' riage ceremony was performed under and pursuant to the doctrines This case is reported elsewhere, by mistake, as R. v. William Wood. CHAP. XXVII.] EBGINA V. THURBOEN. 333 taking was not felonious, and that in the subsequent disposal of it there was no taking, and he therefore declined to pass sentence, and ordered the prisoner to be discharged on entering into his own recognizance to appear when called upon. On the 30th of April, a, d. 1849, the following judgment was read by Pakke, B. The rule of law on this subject seems to be, that if a man find goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them with intent to take the entire domin- ion over them, really believing when he takes them that the owner can- not be found, it is not larceny. But if he takes them with the like intent, though lost or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny. In applying this rule, as indeed in the application of all fixed rules, questions of some nicety may arise ; but it will generally be ascertained whether the person accused had reasonable belief that the owner could be found, by evidence of his previous acquaintance with the ownership of the particular chattel, the place where it is found, or the nature of the marks upon it. In some eases it would be apparent, in others ap- pear only after examination. It would probably be presumed that the taker would examine the chattel as an honest man ought to do at the time of taking it, and if he did not restore it to the owner, the jury might conclude that he took it, when he took complete possession of it, animo furandi. The mere taking it up to look at it would not be a taking possession of the chattel. To apply these rules to the present case : the first taking did not amount to larcenj-, because the note was really lost and there was no mark on it or other circumstance to indicate then who was the owner or that he might be found, nor any evidence to rebut the presumption that would arise from the finding of the note as proved that he believed the owner could not be found, and therefore the original taking was not felonious ; and if the prisoner had changed the note or otherwise disposed of it before notice of the title of the real owner, he clearly would not have been punishable ; but after the prisoner was in posses- sion of the note the owner became known to him, and he then appropri- ated it, animo furandi, and the point to be decided is whether that was a felonj'. Upon this question we have felt considerable doubt. If he had taken the chattel innocently and afterwards appropriated it without knowledge of the ownership, it would not have been larceny, nor would it, we think, if he had done so knowing who was the owner ; 334 CASES ON CRIMINAL LAW. [CHAP. XXVn. for he had the lawful possession in both cases, and the conversion would not have been a trespass in either. But here the original taking was not innocent in one sense and the question is, does that make a differ- ence ? We think not ; it was dispunishable as we have already decided, and though the possession was accompanied by a dishonest intent it was still a lawful possession and good against all but the real owner, and the subsequent conversion was not therefore a trespass in this case more than the others, and consequently no larceny. We therefore think that the conviction was wrong.* EEGINA W.PIERCE, 6 Cox C. C. 117 [1852]. James Piekce and Richard Pugh were indicted for stealing, on the 9th of May, 1852, a dressing-case and other articles, the property of the Shrewsbury and Birmingham Railway Company. ... In other counts the articles were laid as the property of Henry Cunliffe. At the trial the following facts were proved on the part of the prose- cution : The Rev. Henry Cunliffe, on the 9th of May, was a first-class passenger from Shrewsbury to the Shiffnal station on the railway. On reaching home he missed a dressing-case which formed part of his luggage, and was in the carriage with him. Having reported his loss to the railway authorities, inquiries were instituted, and the dressing, case and some of its contents were found in the house of the prisoner Pierce, at Shrewsbury, who was an engineer in the employment of the railway company, and who conducted the train by which Mr. Cunliffe had travelled. Richard Pugh was a stoker in the employment of the company, and he accompanied the train in question with Pierce. The evidence against him consisted in a statement which he made to the police constable, to the effect that he found the dressing-case in a first-class carriage on the arrival of the train at Codsall, one of the stations on the line ; and that he carried it to the engine, and gave it to Pierce, who opened it with a wrench, and, on their return to Shrews- bury, gave him some of the articles out of it as his share. A portion of the contents of the dressing-case was found at Shrewsbury, in the house of John Pugh, Richard Pugh's father. Jane Pugh, the mother, was proved to have pawned a gold ring which also formed a part of the contents of the dressing-case. 1 [See to the same effect Eegina v. Glyde, L. R. 1 C. C. K. 188 j 11 Cox C. C. 103 (1868).] CHAP. XXVni.] BEGINA V. BBECHAM. 335 The part of the line of railway along which Mr. Cunliffe travelled is in the county of Salop; but the CodsaU station, to which the train proceeded after Mr. Cunliffe left it, and where, according to Pugh's statement, the dressing-case was taken from the carriage, is in Staffordshire. It was urged [for the defence] that, if the prisoners found the dress- ing-case, without any owner for it, and took it away to take care of it, it was not larceny. Williams, J., in summing up, said there was no pretence for treat- ing this as a case of lost propertj'. It was the duty of the prisoners, if they found such an article left by a passenger, to take it to the sta- tion-house or some oflBce of the line. It was absurd to say that this case was analogous to that of the finder of lost property. It was noth- ing like lost property. With respect to the point raised as to the venue, if the jury thought the evidence of a stealing from the carriage in the course of the journey was not satisfactory, then they must acquit the prisoners Pierce and Pugh of the charge of stealing, and consider what evidence there was against them and the other prisoners of receiving the goods knoyring them to have been stolen. The jury convicted Pierce and Richard Pugh. CHAPTER XXVIII. Laeceny. Chaeacteb, Extent, and Object of the Possession Assumed. — The Question or Lucri Causa. REGINA V. BEECHAM, 5 Cox C. C. 181 [1851]. The indictment in the first count charged the prisoner with the larceny, on the 8th of February, 1851, of three railway tickets of the value of six pounds three shillings, and three pieces of pasteboard of the value of one penny, the property of the London and North Western Railway Company. In a second count the tickets were described as the property of the station-master at the Banbury Road station. 336 CASES ON CRIMINAL LAW. [CHAP. XXVIH, It appeared in evidence that the prisoner was employed by the rail- way company as a porter in the goods department of the Banbury Road station. On the evening of the 8th of February he was drinking beer at the station with a witness of the name of Hazell, who was a horsekeeper employed at the station by an innkeeper. The station- clerk having about half-past eight o'clock in the afternoon left his office to work the electric telegraph in another compartment of the station, the prisoner went into the ticket office, took out three first-class tickets for the journey from Banbury Road station to York, and stamped them in the machine for the "8th February." The last train for York for that day had been despatched a considerable time and the prisoner tried to alter the stamping machine so as to re-stamp the tickets with another date but failed in the attempt. He then gave one of the tickets to Hazell, saying, " There, you fool, when you want to go a long journey yon need not pay ; come here and do this." Hazell mentioned the circumstance on the following day to the station- clei-k, who went to the prisoner and taxed him with the offence, saying, " You have railway tickets in your pocket." The prisoner at first denied it, then said if he had them he did not know it, and eventu- allj' took the two tickets from his pocket. He immediatel}- afterwards went to the station-master and told all the matter to him ; the latter said the prisoner should pay for the tickets or be reported. A few days afterwards he was suspended from his emploj-ment and given into custody on this charge. It appeared in evidence that tickets stamped for one day might be re-stamped for another day and so be- come available. At the close of the case for the prosecution, Williams, for the prisoner, submitted that the 2d count of the in- dictment could not be sustained. The station-master had no property in the tickets, as he was the servant of the railwaj' company, and merely had the custody of the tickets. Patteson, J. , expressed his assent to that proposition. Williams then objected with respect to the first count, that as the prisoner must have intended, supposing he took the tickets with a view to their use, that they should be returned to the company at the end of the journey, there was no such absolute taking away without an inten- tion of restoration as was necessary to constitute a felony. Patteson, J., said his opinion was that it was a question for the jury to say whether the prisoner took the tickets with an intention to con- vert them to his own use and defraud the company of them. The learned judge in summing up told the jurj' that if the prisoner took the tickets with intent to use them for his own purposes, whether CHAP. XXVIII.] EEGINA V. PHETHEON. 337 to give to friends or to sell them or to travel by means of them, it would not be the less larceny though they were to be ultimately re- turned to the company at the end of the journey. Verdict, not guilty. REGINA V. PHETHEON, 9 C. & P. 552 [1840]. The prisoner was indicted for stealing on the 26th of February, 1840, four salt cellars and other articles of silver plate of the value altogether of £18 5s., the goods of Thomas Eobert, Baron Haj^ his master, in his dwelling-house. It appeared that the prisoner was under butler to Lord Hay and while he was in the service pledged the articles mentioned in the indictment. The jury found the prisoner guilty ; but recommended him to mercy on the ground that they believed he intended to replace the property. C. C. Jones, for the prisoner, submitted that this finding amounted in law to a verdict of not guilty. GuENEY, B., without expressing any opinion upon the point, directed that the prisoner should be tried upon another indictment which had been preferred against him. The prisoner was accordingly charged with stealing, on the 6th of November, 1839, one silver saucepan of the value of £2 10s., the goods of the same prosecutor. It appeared from the testimony of a servant of Lord Hay, who was more generally known by his Scotch title of Earl of Kinnoul, that the saucepan mentioned in the indictment was last seen by him upwards of two years previous at Duplin Castle, in Perthshire, where it was in use in Lady Kinnoul's apartment. A witness proved that on the 16th of July, 1840, the prisoner called upon him and left a parcel with him, which on being opened was found to contain ten pawnbroker's duplicates, from one of which it appeared that the silver saucepan was pledged at the shop of a pawnbroker named Mills, in the Edgeware Road, for £2 10s., hy a young woman. The prisoner was in the service of Lord Kinnoul at Duplin Castle at the time the saucepan was in use there, and followed the family to England in the month of April, 1838 ; and a witness stated that in the natural course of things the saucepan would come to England with the other property. C. C. Jones, in his address to the jury for the prisoner, asked them 22 338 CASES OTS CRIMINAL LAW. [CHAP. XXVIIL to consider whether the prisoner took the article in question feloniously, or whether he took it intending at the time he sent it to the pawn- broker's to redeem it as soon as he could. He argued that the fact of the prisoner having kept the duplicate was a strong circumstance to show that he intended to redeem the property. Gurnet, B., in his summing up after stating the facts observed: You will say whether the prisoner stole this property or not. I confess I think that if this doctrine of an intention to redeem property is to prevail courts of justice will be of very little use. A more glorious doc- trine for thieves it would be difficult to discover, but a more injurious doctrine for honest men cannot well be imagined. The jury found the prisoner guilty and he was sentenced to be trans- ported for fourteen years.* REGINA V. MEDLAND, 5 Cox C. C. 292 [1851]. The prisoner was indicted for larceny. It appeared that she had taken ready-furnished lodgings, and had pawned some of the property therein belonging to the landlord. It was proved that she had often pawned and afterwards redeemed portions of the same property. Robinson, for the prisoner, submitted that if the jnrj' were satisfied 1 In Carrington's Supplement to the Criminal Law, p. 278, 3d edition, the follow- ing case is reported : On an indictment for larceny by a servant in stealing his master's plate, it appeared that after the plate in question was missed, but before complaint made to the magistrate, the prisoner replaced it ; and it was proved by a pawnbroker that the plate had been pawned by the prisoner who had redeemed it; and the pawnbroker also stated that the prisoner had on previous occasions pawned plate and afterwards redeemed it. HuUock, B., (Holroyd, J., being present) left it to the jury to say whether the prisoner took the plate with intent to steal it or whether he merely took it to raise money on it for a time and then return it; for that in the latter case it was no larceny. The jury acquitted the iprisoner. K. ^^ Wright, 0. B., 1828, MS. This decision has given rise to much discussion in various cases, and much diffi- culty has been found in applying the doctrine it lays down to the facts of particular transactions. In some instances where it has appeared clearly that the party only intended to raise money on the property for a temporary purpose, and at the time of pledging the article had a reasonable and fair expectation of being able shortly, by the receipt of money, to take it out of pawn, juries under the advice of the judge have acted upon the doctrine and acquitted. But in other instances where they could not discover any reasonable prospect which the party had at the time of pledging of being able soon to redeem the article, they have considered the doctrine as inapplicable and have convicted. [Reporter's Note.] CHAP. XXVIII.] BBGINA V. TEEBILCOCK. 339 that the prisoner took the property for the purpose of pawning, but with the intention of redeeming it, she would be entitled to an acquit- tal because the intent would not be permanently to deprive the owner of it. R. V. Phetheon, 9 C. & P. 552 ; and R. v. Wright, 9 C. & P. 559, were referred to. The Recokder after consulting the judges in the adjoining court : I have taken the opinion of Mr. Justice Coleridge and of Mr. Baron Piatt upon this case, and they both think with me that there is nothing in the evidence that will justify the jury in acquitting the prisoner on the ground that she took this property with the intention of redeeming it. It would be very dangerous to hold that the suggestion of such an intent would be sufficient to constitute a valid defence. A person may pawn property without the slightest prospect of ever being able to re- deem it, and yet there may be some vague intention of doing so if afterwards the opportunity should occur, however improbable it may be that it will do so. But it can never be said that there is an intention to redeem under circumstances that render it very improbable or at least uncertain that such ability will ever exist. A man may take my property, may exercise absolute dominion over it, maj' trade upon it and make a profit upon it for three months, and yet may saj', when charged with stealing it, that he meant to return it to me at some time or another. I shall direct the jury that for such a defence to be at all available there must be not only the intent to redeem evidenced, by similar previous conduct, but there must be proof also of the power to do so, of which the evidence here seems rather of a negative character. Yerdict, Cruilty. REGINA V. TREBILCOCK, 7 Cox C. C. 408 [1858]. At the General Quarter Sessions of the Peace holden in and for the borough of Plj'mouth, on the 1st day of January, 1858, before Charles Saunders, Esq., Recorder, the prisoner, "William Trebilcock, was tried on an indictment which charged him, first, with a larceny upon the Stat. 20 & 21 Vict. c. 54, § 4,* in having as bailee of plate, the property of the prosecutor, fraudulently converted it to his own use ; secondly, ^ The section is as follows : " If any person being a bailee of any property shall fraudulently take or convert it to his own use, or the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bail- ment, he shall be guilty of larceny." 340 CASES ON CKIMINAL LAW. [CHAP. XXVin. with a common larceny of the same plate. The jury found the prisoner guilty on both counts of the indictment, but recommended him to mercy, believing that he intended ultimately to return the property. The question for the opinion of the Court is whether, consistently with the ground upon which the jury recommended the prisoner to mercy, the conviction was right upon both or either of the counts. The case was this : The prosecutrix, Miss Palmer, resided at Ply- mouth, and going to London for eight or ten days, deposited with the prisoner, a tradesman at Plymouth, who had offered to take care of anything for her during her absence, a chest of valuable plate for safe custody till she returned. The prisoner had been told that the prose- cutrix would leave a parcel with him, which he said that he would put in his iron chest to keep for her. When the chest of plate was placed in the prisoner's hands it was locked (the prosecutrix keeping the key), then covered with a wrapper sewed together, and sealed in a great num- ber of places, and then tied with cord. The prisoner was not informed of the contents of this parcel, nor was any key given to him. In a day or two after the prosecutrix left for London, he had uncorded the chest, broken the seals, taken off the wrapper, procured a key, opened the chest, and taken out a part of the plate, and offered it to one Woolf, at Plymouth, as a security for the advance of £50. The pawnbroker took up one of the pieces of plate which bore the crest and also a superscrip- tion with the name of Sir George Magrath upon it, and expressing his dislike to have anything to do with it, the prisoner said that he was under an engagement to be married to Lady Magrath. The prosecutrix had lived with Sir George Magrath, and when he died the plate, among other property, came into her possession. Woolf ultimately declined any advance upon it. The prisoner then communicated by letter with another pawnbroker named Druiff, at Newport in Monmouthshire, with whom the prisoner had before had bill transactions. Druiff came to the prisoner at Plymouth and advanced him £200, taking bills for the amount, and the whole chest of plate worth from £500 to £600, as a collateral security for the loan. Druiff took the plate away with him to Newport. The prisoner, by way of accounting to Druiff for the possession of the plate, represented to him that he was going to get married to the lady of the late Sir George Magrath, and that she had given him the plate to take care of till they were married. The prose- cutrix went to London on the 8th day of November, and returned on the 17th of the same month. On her return the prosecutrix tried often to see the prisoner but could not do so till the 26th. When she first saw him and asked him for the parcel, the prisoner said he would send it to her the same evening. It was not sent. The prosecutrix went often backwards and forwards to the prisoner's shop and private resi- CHAP. XXVIII.] EEGINA V. TEEBILOOCE. 341 dence to see the prisoner, but could not see him again till the 2d of December, when the prosecutrix insisted upon instantly having her parcel. The prisoner said she could not have it as it was out of town, he had sent it to Bristol ; then he said it was now farther than Bristol, that it was in Wales, but that he would write a letter and she should have it on Friday. The parcel did not arrive. The prisoner refused to tell in whose hands it was, but the prosecutrix had learned from the prisoner's father that Druiff had it. The inspector of police went to Newport and found the chest of plate there, but Druiff refused to give it up unless upon payment of the £200 for which it had been deposited with him as security. The prisoner could not redeem it, and upon the facts being made known to the prosecutrix she had the prisoner taken into custody on a charge of stealing, and the police took possession of the chest of plate as stolen property. Upon the finding of the jury, with the recommendation to mercy above stated, the counsel for the prisoner contended that to support either of the counts in the indictment, it was necessary that the pris- oner should have intended permanently to deprive the prosecutrix of her property, and that, as the jurj' believed that his intention was ultimately to return it, the verdict was wrong. The prisoner was committed to prison, and sentence deferred until the opinion of the judges shall have been obtained upon the question raised. If the Court shall be of opinion that the ground upon which the jury recommended the prisoner to mercy may consist with the verdict upon both or either of the counts of the indictment, the verdict to stand upon both or either of the counts accordingly. If the recom- mendation may not consist with the verdict on either count, then the verdict to be set aside, and a verdict of not guilty to be recorded. M W. Cox, for the prisoner. The question is whether the recent statute, 20 & 21 Vict. c. 54, § 4, alters the general law of larceny in any other respect than making a bailee liable. Lord Campbell, C. J. If this was larceny at all, it was larceny at common law. The statute would make no difference in this respect. Coleridge, J. If not a larceny at common law the new statute would not make it such ; so that the only question is whether the prisoner could properly be convicted of larceny at common law. The jury have found him guilty. -S. W. Cox. Yes ; but they recommended him to mercy on a ground which shows, that a verdict of guiltj' is wrong. They found that he intended ultimately to return the property to the owner. Ceowder, J. That is, if he could get it back again. -E". W. Cox. The law on this subject is distinctly laid down in R. v. Holloway, 3 Cox C. C. 145 ; and still more recently in E. v. Poole 342 CASES ON CRIMINAL LAW. [CHAP. XXVIII. and Yeates, 7 Cox C. C. 373. In R. v. HoUoway, Parke, B., said, that in order to constitute larceny there must be the intention to de- prive the owner wholly of his property, to usurp the entire dominion over the chattels taken, and to make them his own ; and Lord Denman used similar language, putting the case of a man taking a horse,, with the intention of riding him throughout England, and then returning him. Coleridge, J. But in this case the jury do not say that at the time of the taking the prisoner intended to return the plate. Lord Campbell, C. J. On the contrary they negative it by finding him guilty. jE W. Cox. It is necessarily implied in their statement, that when he parted with it to the pledgee, he had it in his mind to get it back again and restore it to the owner. Lord Campbell, C. J. Your general proposition of law is right enough, but it does not apply to this case. E. W. Cox. If the Court interprets the expression used by the jury, as meaning only that at some time after the larceny the prisoner ia- tended to return the property, the argument founded on R. v. HoUoway necessarily fails. But that could not be the meaning of their finding. The alleged larceny was complete at the moment of depositmg the plate with the pledgee. It was for that he was tried, and to that alone was the attention of the jury directed. They had nothing to do with any subsequent intent. Their conclusion could have had reference only to the felonious act charged in the indictment, and to the moment of commit- ting it, and if they were of opinion that he had then an intention to return it, of which there is no doubt, he is not guilty of larceny. Lord Campbell, C. J. The general proposition contended for by Mr. Cox is perfectly correct. To constitute larceny, there must be an intention on the part of the thief completely to appropriate the property to his own use ; and if at the time of the asportation his intention is to make a mere temporary use of the chattels taken, so that the dominus should again have the use of them afterwards, that is a trespass, but not a felony ; but that law does not apply to this case. Here there was abundant evidence of a larceny at common law ; abundant evidence from which the jury might find that the prisoner feloniously stole the plate ; and the jury have found a verdict of guilty. But they have re- commended him to mercy, and accompanied that recommendation with a statement as to the prisoner's intention to return the stolen property. Now, I doubt whether what the jury say in giving their reason for recommending the prisoner to mercy, is to be considered as part of their finding ; but even assuming it to be so, all that they say is, that he intended ultimately to return the property ; not that at the time of CHAP. XXVIII.} EEGINA V. TEEBILCOCE, 343 the wrongful taking he originally intended to make a merely temporarj' use of it. Coleridge, J. I am of the same opinion. There is no question about the law in this case ; but the question is merely as to the facts. And upon tlie facts it, appears that the prisoner had put it out of his power to return the plate which he had taken. Then what must we do in order to make sense of the finding of the jury? It is to be observed, that the recommendation to mercy in itself assumes that the verdict of guilty is correct ; but the jury seem to have thought that the prisoner had it in his mind at some uncertain time, if he could get hold of it again, to restore the property, and they might consider that a sufficient reason for recommending him to mercy. That interpretation makes sense of their finding, while the construction put upon it by Mr. Cox renders their conduct quite inconsistent and insensible. Martin, B. I am of opinion that the recommendation to mercy, and the words whioh accompanied it, were no part of the verdict at all and that when the jury said guilty, there was an end of the matter, so far as the verdict was concerned. But I also think that even if it did form part of the verdict, it would not have the effect of bringing it within the principle of the cases on which Mr. Cox relies. It seems to me quite clear that this prisoner stole the plate, and then pledged it for £200, and I think that in so doing he " usurped the entire dominion of it" within the meaning of that expression as used by Parke, B., in the case cited. If, therefore, a special verdict had been found in the very terms used by the jury, when they recommended the prisoner to mercy, I should have said that he was still guilty of larceny. Crowder, J. It seems to me, also, that upon the facts of this case no other rational conclusion could be arrived at, except that the prisoner stole the plate. He broke open the box, and took out the plate and stole it, but the jury recommended him to mercy because the}' thought that he had an intention -of ultimately restoring it. Probably it very often happens that when stolen goods are pawned, there is an intention to get them back again, if the person pawning them should ever be able to do so, and in that case to return them ; but such an intention affords no ground for setting aside a verdict of guilty, when the offence of larceny is satisfactorilj' proved by the evidence. Watson, B. I also think that this is the clearest ease of larceny possible, though the jury have recommended the prisoner to mercy, because they thought that he would ultimately have restored the property if he could have got it back. Conviction affirmed. 344 CASES ON CRIMINAL LAW. [CHAP. XXVIII. REX V. CABBAGE, Buss. AND Rr. C. C. 292 [1815]. The prisoner was tried before Thomson, C. B., at the Lent Assizes for the County of Lancaster in the year 1815, on an indictment for feloniously stealing, taking, and leading away a gelding, the property of John Camplin. The second count charged the prisoner with feloniously, unlawfully, wilfully, and malieiouslj' killing and destroying a gelding, the property of the said John Camplin, against the statute, etc. The counsel for the prosecution elected to proceed upon the first count. It appeared that the gelding in question was missed by the prose- cutor from his stables on Monday, the 28th of February, 1815. The stable-door, it appeared, had been forced open. The prosecutor went the same day to a coal-pit, about a mile from the stable, where he saw the marks of a horse's feet. This pit had been worked out and had a fence round it, to prevent persons from falling in ; one of the rails of this fence had been recently knocked off. A man was sent down into the pit, and he brought up a halter, which was proved to be the halter belonging to the gelding. In about three weeks after the finding of the halter, the gelding was drawn up from the coal-pit in the presence of the prosecutor, who knew it to be his. The horse's forehead was very much bruised, and a bone stuck out of it. It appeared that at the time this gelding was destroyed, a person of the name of Howarth was in custody for having stolen it in August, 1813, and that the prose- cutor, Camplin, had recovered his gelding again about five weeks after it was taken. Howarth was about to take his trial for this offence when the gelding was destroyed in the manner stated. The prisoner Cab- bage was taken into custody on the 27th of March, 1815 ; and on his apprehension he said that he went in company with Anne Howarth (the wife of Howarth who was tried for stealing the said gelding) to Camplin's stable-door, and that they together forced open the door and brought the horse out. They then went along the road till they came to the coal-pit before mentioned, and there they backed the horse into the pit. It was objected by the prisoner's counsel, that the evidence in this case did not prove a larceny committed of the horse ; that the taking appeared not to have been done with intention to convert it to the use of the taker, " animo furandi et lucri causa." CHAP. XXVIII.] KEX V. MOEFIT. 345 Thomson, C. B., overruled the objection, and the prisoner was con- victed upon the first count of the indictment, for stealing the horse. Judgment was passed on him, but the learned Chief Baron respited the execution to take the opinion of the judges as to the propriety of the conviction. In Easter term, 1815, the judges met to consider this case, and the majority of the judges held the conviction right. Six of the learned judges, namely, Richards, B., Baylet, J., Chambre, J., Thomson, C. B., GiBBS, C. J., and Lord Ellenborodgh, held it not essential to constitute the offence of larceny that the taking should be lucri causa; they thought a taking fraudulentl3' with an intent wholly to deprive the owner of the property sufficient ; but some of the six learned judges thought that in this case the object of protecting Howarth by the de- struction of this animal might be deemed a benefit or lucri causa, Dallas, J., Wood, B., Graham, B., Le Blanc, J., and Heath, J., thought the conviction wrong. EEX V. MOEFIT, Euss. and Et. C. C. 307 [1816]. The prisoners were tried before Mr. Justice Abbott, at the Maid- stone Lent Assizes, in the year 1816, upon an indictment for feloni- ously stealing two bushels of beans, value five shillings, the goods of John Wimble. On the trial it was proved that the prisoners were servants in hus- bandry to Mr. Wimble and had the care of one of his teams ; that Mr. Wimble's bailiff was in the habit of delivering out to the prisoners at stated periods, from a granary belonging to him, and of which his bailiff kept the key, such quantity of beans as Mr. Wimble thought fit to allow for the horses of this team. The beans were to be split and then given by the prisoners to the horses. It appeared that the granary-door was opened hj means of a false key procured for that purpose, which was afterwards found hid in the stable ; and that about two bushels of beans were taken away on the day, after an allowance had been deliv- ered out as usual, and nearly that quantity of whole beans was found in a sack, concealed under some chaff in a chaff-bin in the stable. The learned judge desired the jury to say whether they thought both the prisoners were concerned in taking the beans from the granary ; and also whether they intended to give them to Mr. Wimble's horses. The jury answered both questions in the affirmative. Mr. Justice Batlet had, at the same Assizes, directed a verdict of 346 CASES ON CRIMINAL LAW. [CHAP. XXVIII. acquittal under circumstances of the like nature ; but Abbott, J., was informed that the late Mr. Justice Heath had many times held thia offence to be larceny, and that there had been several convictions before him ; and also that to a question put by the gi'and jury at Maid- stone to the late Lord Chief Baron Macdonald, he had answered that in his opinion this offence was a larceny. On account of this contrariety of opinion, the learned judge before whom this case was tried thought it advisable to submit the question to all the judges, the offence being a very common one ; a verdict of guilty was taken, but judgment respited until the ensuing Assizes. In Easter term, 1816, eleven of the Judges met and considered this case. Eight of the judges held that this was ffelony ; that the purpose to which the prisoners intended to apply the beans did not. vary the case. It was, however, alleged by some of the judges, that the addi- tional quantity of beans would diminish the work of the men who had to look after the horses, so that the master not only lost his beans,, or had them applied to the injury of the horses, but the men's labor was lessened, so that the "lucri causa," to give themselves ease, was an ingredient in the case. Graham, B., Wood, B., and Dallas, J., thought this not a felony, and that the conviction was wrong. EEGINA V. JONES, 1 Den. C. C. 188 [1846]. At the spring Assizes, holden at Hereford, a. d. 1846, before Pot- LOCK, C. B. Elizabeth Jones pleaded guilty to an indictment under the statutes 7 Wm. IV. and 1 Vict. c. 36, J 28,^ for stealing at Ross, from an officer of the post-oflSce, a post letter, the property of her Majesty's Postmaster-General. The prisoner had been cook in the employ of Mrs. Garbett, of Upton Bishop, whose service she was about to leave, having herself given notice to do so, and was in treaty with a Mrs. Dangerfield, of Chelten- ham, for a similar situation. Mrs. Dangerfield had consented to em- 1 "§ 28. Every person who shall steal a post letter bag, or a post letter from a post letter bag, or shall steal a post letter from a post-office, or from an officer of the post-office, or from a mail, or shall stop a mail with intent to rob or search the same, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and shall be transported beyond the seas for life." By § 40, the prop- erty may be laid in the Postmaster-General. CHAP. XXVIII.} EEGINA V. JONES. 347 ploy her if a satisfactory answer from Mrs. Garbetfc should be returned to a letter to be written for the purpose of making inquiries respectr ing her character. This letter, the subject of the present indictment, was written by Mrs. Dangerfield, directed to Mrs. Garbett, and posted at Cheltenham, and was from thence duly forwarded to the post-offlce at Boss. Mrs. Garbett having found fault with the prisoner for allowing the friend of another servant to breakfast in the kitchen without, her leave, discharged her from, her service and told her that a character would not be given to her. The day after her dismissal she went to the post- offlce at Eoss, and there applied to the clerk on dutj' for the letter from Cheltenham addressed to Mrs. Garbett, stating that she was a servant in Mrs. Garbett's employ, and that Mrs. Garbett expected a letter from Cheltenham that morning, which she was to take ; but upon being in- formed that the one letter by itself could not be given., she first tockk from the office all the letters for Mr. and Mrs. Garbett, including that written by Mrs. Dangerfield, the subject of the present indictment, and burnt it ; but delivered the others to the person who was in the habit of conveying the letters from the Ross post-office to the inhabitants of Upton Bishop, and they reached Mr. and Mrs. Garbett in safety. The question for the opinion of the judges was, whether the taking and destroying of the letter under these circumstances amounted to larceny. [All the judges were present, except Coleridge, J., Wightman, J., and Maule, J.] Suddleston for the prisoner. The offence must contain all the ingredients of a common-law larceny ; it must therefore appear to have been committed lucri causa. The evidence shows that it was not so, therefore the charge is not made out. The word "steal" in § 28 of the statute shows that the offence there specified must contain all the ingredients of a larcenj' at common law. In the first report of the Criminal Law Commissioners, p. 17, it is said indeed, that " the ulterior motive by which the taker is influ- enced in despoiling the owner of his property altogether, whether it be to benefit himself or another, or to injure any one by the taking, is immaterial." But this is stated too broadly, for all the old writers agree in holding lucri causa to be an essential ingredient in larceny. Blackstone's Coram. 4, p. 231, "felonious," that is, done animo fur randi, or as the civil law expresses it lucri causa. ErRE, C. B., Pear's case. East PL Cr. c. 16, § 2, defines larceny to be " the wrong- ful taking of goods with intent to spoil the owner of them lucri causa." Gkose, J., in delivering the opinion of the twelve judges in Hammond's case, Greaves's Russell, vol. ii. p. 2, says the true meaning of larceny 348 CASES ON CRIMINAL LAW. [CHAP. XXVIII. is " the felonious taking the property of another without his consent and against his will, with intent to convert it to the use of the taker." East PI. Cr. 2, p. 553, " The wrongful or fraudulent taking and carry- ing away by any person of the mere personal goods of another from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his property, without the consent of the owner." The true meaning of lucrum is a gain capable of pecuniary measurement. This was not the case here. The cases which seem in- consistent with the above position are not so in reality, for in Rex v. Cabbage, Euss. & Ry. 292, although the majority of the judges held lucri causa not an essential ingredient in larceny, there was in fact a very great advantage proposed to be gained by the taking away of the horse, and one which admitted of pecuniary measurement. Pollock, C. B. Suppose the prisoner had seen the letter Ij'ing on the table in the post-offlce and had thrown it into the fire, would that be larceny ? Suddleston. No ; there would be no lucrum. In Rex v. Morfit, Buss. & Ry. 307, some of the judges thought that there was evidence of a lucri causa. Conf. in Re Jacklin, 1 New Sess. Cases, 280. There are several authorities in favor of my position. In R. v. Blyton, Dick. Quart. Sess. 4th ed. p. 202, n. (Z), where the prisoner indicted for larceny threw several articles of furniture into a river, in which they were destroyed, and the jury found that this was done in revenge for a supposed affront and with no intention of converting the goods to his own use, the judge directed an acquittal. * In R. V. Richards, 1 C. & K. 532, Tindal, C. J., left it to the jury to say whether the taking was " to convert it to a purpose for his own profit." R. v. Godfrey, 8 C. & P. 563, is conclusive in favor of the prisoner, if that case be good law. There Lokd Abinger, C. B., held, that " if a person from idle curiosity, either personal or political, opens a letter addressed to another person and keeps the letter, that is no larceny, even though a part of his object may be to prevent the letter from reaching its destination." Further, it may be contended with some reason, that the taking here was a taking of her own letter ; the postmaster must be considered merely the locum tenens of the real owner. Again, it is doubtful whether this be not a case of false pretences ; the property in the letter was parted with by the postmaster. JBros for the Crown. It is admitted that the stealing must be a common-law stealing. The question of property is settled by § 40 of the statute, which makes the letter the property of the Postmaster- General till delivered to its intended owner. Then, as to the false pretences, the prisoner took it animo furandi, and so committed a CHAP. XXVIII.] BEGINA V. PEIVETT. 349 larceny. If lucri causa be necessary, there is clear evidence here of a lucri causa; any interest is enough to satisfy those words. There is no authority for saying that lucrum must be a gain capable of pecu- niary measurement. Neither in Morfit's nor in Cabbage's case could the advantage be measured by money. E. V. Richards, 1 C. & K. 532, was a peculiar case. There, if the juiy had negatived the prisoner's intention to gain anything himself, they should have negatived the whole charge, for the owners of the property were deprived of nothing. R. v. Godfrey, 8 C. & P. 563, seems not to be law. But the words lucri causa do not form part of the commou-law definition of felony ; they come from the civil law. Bracton saj-s, "furtum est secundum leges, contractatio rei aliense fraudulenta, cum animo furandi, invito illo domino, cujus res ilia fuerat." Coke, 3 Inst. 106, defines larceny to be "the felonious and fraudulent taking and carrying away, by any man or woman, of the mere personal goods of another, neither from the person, nor by night, in the house of the owner." Pollock, C. B. For Mr. Huddlestori s argument, the case would be the same if the prisoner had picked the postman's pocket of the letter. I see no difference. Will it be contended that picking a man's pocket, not to make yourself rich, but to make him poor, would not be a larceny ? Paekb, B. Supposing you pick A.'s pocket to give the money to a beggar in the next street? Cur. adv. vult. Afterwards all the judges present, except Platt, B., were of opinion that this was larceny ; for, supposing that it was a necessary ingredient in that crime that it should be done lucri causa (which was not admitted), there were sufldcient advantages to be obtained by the prisoner in making away with the written character. Platt, B., doubted whether the prisoner was guilty of the offence of larceny. REGINA V. PRIVETT, 1 Den. C. C. 193 ; 2 C. & K. 114 [1846]. The prisoners were tried before Mr. Justice Erie, at the spring Assizes for the county of Hants. It was proved that the prisoners took from the floor of a barn, in the presence of the thrasher, five sacks of un winnowed oats, and secreted them in a loft there, for the purpose of giving them to their master's 350 CASES ON CEIMESrAli LAW. [CHAP. XXVIII. horses, they being employed as carter and carter's boy, but not being' answerable at all for the condition or appearance of the horses. The jury found that they took the oats with intent to give them to their master's horses, and without any intent of applying them for their private benefit. The learned judge reserved the case for the opinion of the judges on the point whether the prisoners were guilty of larceny. Eex v. Morflt and another, Russ. & Ey. 307 ; Rex o. Cabbage, Russ. & Ey. 292.i Lord Denman, C. J., Tindal, C. J., Paeke, B., Patteson, J., "Wil- liams, J., COLTMAN, J., EOLFE, B., "WiGHTMAK, J., CkESSWELL, J., EeLE, J., and Platt, B., met to consider this case. The greater part of the judges present (exclusive of Eele, J., and Platt, B.) appeared to think that this was larceny, because the prisoners took the oats knowingly against the will of the owner, and without color of title or of authority, with intent, not to take temporary possession merely and then abandon it (which would not be lareenj'), but to take the entire dominion over them, and that it made no difference that the taking was not lucri causa, or that the object of the prisoners was to apply the things stolen in a way which was against the wish of the owner but might be beiiefi:cial to him. But all agreed that they were bound by the previous decisions to hold this to be larceny, though several of them expressed a doubt if they should have bo decided if the matter were res integra. Erle, J., and Platt, B., were of a different opinion ; they thought that the former decision proceeded in the opinion of some of the judges on the supposition that the prisoners would gain by the taking, which was negatived in this case ; and they were of opinion that the taking was not felonious, because to constitute larceny it was essen- tial that the prisoner should intend to deprive the owner of the prop- erty in the goods, which he could not if lie meant to apply it to bis use. REGINA V. GUEENSEY, 1 F. & F. 394 [1858]. The prisoner was indicted for stealing ten pieces of paper, value one penny, the property of our Sovereign Lady the Queen. In another count the property was laid to belong to Sir Edward Bulwer Lytton, the Colonial Secretary ; and in a third count the prop- erty was laid to belong to Joseph Thomas Miller. A despatch of a very important character had been received by the 1 See Queen v. Elizabeth Jones, 1 Den. C C. 188. CHAP. XXVin.] EEGINA V. GUEENSBY. 851 government from Sir John Young, the Lord High Commissioner of the Islands, on the 10th of June, 1867, and another on the 14th of July of the present j'ear, which came into the hands of Sir Edward Lytton, the Colonial Minister, in the month of August. A certain number were printed at the private printing-office of the government and which were marked " private and confidential," and were intended for distribution among the members of the Cabinet ; and twenty-eight copies of these despatches were delivered at the office of the librarian at the Colonial Office for that purpose and given to the sub-librarian. He placed them on a table in the office. The prisoner frequently visited Mr. Miller at the Colonial Office and they were on extremely intimate terms. About the 23d of October the prisoner, it appeared, called upon him at the Colonial Office ; and after they had had some conversation together he had occasion to leave the library for a short time, and when he went out Guernsey was standing by the fire. Mr. Miller returned in a few minutes and at this time he observed that the prisoner was standing close to the table upon which the despatches were lying with a large book upon them ; and when the prisoner saw him he exclaimed, " I have not been prying into your secrets," to which Mr. Miller replied that he did not suspect that he was doing so. The prisoner remained a short time longer with Mr. Miller and they both left together. Shortly afterwards the prisoner sent one of these printed copies of the despatch to the editor of the "Daily News" newspaper, with a note signed by the prisoner and marked " private," requesting that the despatch might be inserted in the " Dail}' News," and stating that no other journal had received a copy. The editor had not had any pre- vious acquaintance with the prisoner. Before he gave directions that the despatch should appear in the " Daily News " he wrote to the pris- oner at the address in Regent Square mentioned in his letter, and re- ceived a reply from him stating that it was " all right," but he did not wish his name to be mentioned in any way as connected with the pub- lication of the document. After the receipt of this letter the editor directed the publication of the despatches in the " Dailj' News," and they appeared on the 12th of November. About the middle of the following week, the editor having previously received a communication from the Colonial Office, wrote to the prisoner requesting him to call upon him. The prisoner called on him and introduced himself as the person who had sent the Ionian despatches. The prisoner then stated that a person had left them at his house and he pressed the witness not to give any further information. The witness, who produced the paper, stated that the only object for which the despatches were sent to him, as he understood, was that they might be published in the " Daily News." 352 CASES ON OEIMINAL LAW. [cHAP. XXVIH, There was no pecuniary inducement for the act but it rather ap- peared that the prisoner bore some resentment to the Colonial Minister for the refusal of an appointment. Parry, Serjt., submitted that there was an utter absence of any felo- nious intention on the part of the prisoner and that it was clear that the only object he had in view was that the contents of the despatches should be made public. He urged that there was no evidence to show that the prisoner intended -permanently to deprive the Colonial OfiBce of the property in the despatches and cited Regina v. Thurborn.' Martin, B. It is a question for the jury with what intent the pris- OHer took the despatches. The question you have to decide is whether the prisoner in taking these despatches in the manner it appears to be admitted he did it was guilty of the offence of larceny. The offence consists in the taking away the property of another without his consent and with the intention at the time to convert that property to the use of the taker. Such documents as these are clearly the subject of larceny ; and inasmuch as the stealing of the paper itself would have been a felony, the fact of the paper being printed on makes no differ- ence, and indeed this fact might in a great many instances materially increase the value. And the only question you have to decide is whether the evidence establishes to your satisfaction that at the time the prisoner took the dociiments away from the Colonial Office he in- tended to deprive that office of all property in them and to convert them to his own use. Verdict, not guilty. REGINA V. WYNN, 3 Cox C. C. 271 [1849]. The following case was reserved from the August Session of the Central Criminal Court by Mr. Baron Piatt : — CASE. The prisoner was tried before me on the 23d of August last at the Central Criminal Court on an indictment charging him with stealing ' while employed in the post-office two post letters containing one half- crown, one sixpence, three postage stamps, and two sovereigns, the property of Her Majesty's Postmaster General. He was employed in the post-office and his duty was to open the 1 1 Den. C. C. 388 j 2 C. & K. 831. But see Regina v. Jones, 1 Den. C. C. 189; 2 C. &. K 236. [Reporter's Note.] 2 Although the count for secreting was not mentioned in the case it was, as will be seen, discussed on the argument, and the opinion of the judges upon it expressed. CHAF. XXVIir.J KEGINA V. WYSN. 353 bags brought to the partieular table at which he was placed, take out the letters, and separate them. The Scarborough bag, which contained among others the two letters described in the indictment, was brought to his table. He Opened it, took out all the letters, and put them on the table before him. Twenty or thirty bags; were opened on the same table by the prisoner at the same time,, and the letter bills of the sev- eral bags were by him spread before him on the table. It then- became his duty to separate the registered letters and unpaid letters from the unregistered paid letters, fold the registered letters in the bills, and place them in a drawer. In the course of this separation he put two unregistered letters in one of the letter bills and some of the registered letters in their respective bills in the drawer, from which he afterwards gave them to the register clerk to check the bills containing them. He afterwards put the rest of the registered letters in the drawer and carried them when collected to the register clerk. When he had done so he returned toward his table and went to a water-closet. He was ob- served to hold in his hand what appeared to be a bill folded over letters, was followed, and after he had placed himself with his breeches down on the seat of the water . CuUins, 1 Mass. 116, and Commonwealth v. Andrews, 2 Mass. 14. It is certainly the general duty of the court to adhere to the law as decided. Especially is this the case where a change in the decision would impair the tenure by which the rights and property of the sub- ject are held. But even with respect to these, where it is clear a case ias been decided against the well settled principles of law and of Teason, it is the duty and the practice of the courts to revise such decision, and to replace the law on its old and solid foundation. This is peculiarly the duty of the courts where such decision works its in- justice by impairing the personal rigkts of the dtizen, or by subjecting Mm to burdens and penalties wMch he never justly incurred. 372 CASES ON CRIMINAL LAW. [CHAP. XXXII. In my judgment, the courts of this Commonwealth have not, and never had, under the Constitution of the United States or otherwise, the rightful power to try a man for an offence committed in another State. It is in vain, it seems to me, to attempt to preserve and make rules of conduct decisions founded upon wholly erroneous views of the relations which the States of the Union bear to each other under the Constitution, and in conflict with well settled principles of constitu- tional and international law. I should be content to rest my dissent from the judgment of the Court in the case at bar upon the principles afSrmed in the recent case of Commonwealth v. Uprichard, 3 Gray, 434. In effect that case overrules, as its reasoning thoroughly undermines, the earlier cases. They cannot stand together. But as the decision in the case at bar rests upon the authority of the cases in the first and second of Massachusetts Reports, it may be well to examine with care the grounds upon which they rest. Such an examination will show, I think, not only that the cases were put upon erroneous views as to the relation of the States, but that they were also unsound at common law. In the case of Commonwealth v. Cullins, a jury trial where three judges of the court were present, the evidence showing that the goods were taken in the State of Rhode Island, Mr. Justice Sedgwick, who charged the jury, said that " the Court were clearly of opinion that stealing goods in one State and conveying stolen goods into another State was similar to stealing goods in one county and conveying the stolen goods into another, which was alwaj's holden to be felony in both counties." Whatever the points of similarity, there was this obvious and vital difference, to wit, that conviction in one county was a bar to conviction in another, and that conviction in one State is no bar to conviction in another State. It was a doctrine of the common law that the asportation of stolen goods from one county to another was a new caption and felony in the second county, — a legal fiction devised for greater facility in con- victing the offender where it was uncertain where the first caption took place. The foundation of the rule was that the possession of the owner continued, and that every moment's continuance of the trespass may constitute a caption as well as the first taking. But in what respect was the taking in one State and convej-ing into another State similar to the taking in one county and conveying into another county ? It could only be " similar " because the legal relation which one State bears to another is similar to that which one county bears to another ; because, under another name, there was the same thing. If a man is to be con- vinced of crime by analogy, the analogy certainly should be a close CHAP. XXXII.] COMMONWEALTH V. HOLDER. 373 one. Here it was but a shadow. In the different counties there was one law, one mode of trial, the same interpretation of the law, and the same punishment. The rule, mode of trial, and jurisdiction were not changed. The States of the Union, it is. quite plain, hold no such relation to each other. As to their internal police, their law of crimes and punish- ments, they are wholly independent of each other, having no common law and no common umpire. The provision indeed in the Constitu- tion of the United States for surrendering up fugitives from justice by one State to another is a clear recognition of the independence of the States of each other in these regards. It excludes the idea of any jurisdiction in one State over crimes committed in another, and at the same time saves any necessity or reason for such jurisdiction. Nor is there any provision in the Constitution of the United States which impairs such independence, so far as the internal police of the States is concerned. On the other hand, the widest diversity exists in the institutions, the internal police, and the criminal codes of the several States, some of them, as Louisiana and Texas, having as the basis of their jurisprudence the civil and not the common law. In the relation which Louisiana holds to this State can any substantial analogy be found to that which Surre}' bears to Middlesex ? An analogy closer and more direct could have been found in the books when Commonwealth v. CuUins was decided. It was that of Scotland to England, subject both to one crown and one legislature ; yet it had been decided that when one stole goods in Scotland and carried them to England, he could not be convicted in the latter country. Eex v. Anderson (1763), 2 East P. C. 772 ; 2 Eussell on Crimes (7th Amer. ed.), 119. Or an analogy might have been found in the cases of goods stolen on the high seas and brought into the counties of England, of which the courts of common law refused to take cognizance because they were not felonies committed within their jurisdiction. 1 Hawk. c. 33, § 52 ; 3 Inst. 113. In these cases a test would have been found, applicable to the alleged larceny of CuUins, to wit, the offence was not committed in a place within the jurisdiction of the court, but in a place as foreign to their jurisdiction, so far as this subject-matter was concerned, as England or the neighboring provinces. The case of Commonwealth v. CuUins has no solid principle to rest upon. The case of Commonwealth v. Andrews, two years later, may be held to recognize the rule laid down in Commonwealth v. CuUins, though it was an indictment against Andrews as the receiver of goods stolen by one Tuttle in New Hampshire ; and though there is, at the least, plausible ground for saying that there was a new taking by 374 CA.SBS ON CEIMnSTAL LAW, [CHAP. XXXIt Tuttle at Harvard in the county where the defendant was indicted and tried. Indeed, Mr. Justice Parker takes this precise ground ; though he adds that " the common-law doctrine respecting counties may well be extended by analogy to the case of States united, as these are, under one general government." If that union was with reference to or concerned the internal police or criminal jurisprudence of the several States ; if it was not obviously for other different, distinct, and well defined purposes ; and if we could admit the right of the court to extend by analogy the provisions of the criminal law and so to enlarge its jurisdiction, there would be force in the suggestion. As it is, we must be careful not to be misled by the errors of wise and good men. Judge Thatcher puts the case wholly on the felonious taking at Harvard. Mr. Justice Sedgwick, though having the same view as to the taking at Harvard, does not rest his opinion upon it, but upon the ground that the continuance of the trespass is as much a wrong as the first taking. This doctrine applies as well where the original caption was in a foreign country as in another State of the Union. K you hold that every moment the thief holds the propertj' he commits a new felony, j'ou may multiply his offences ad infinitum ; but in so carrying out what is at the best a legal fiction, you shock the common sense of men and their sense of justice. Mr. Justice Sedgwick will not admit the force of the objection that the thief would be thus twice punished, but regards with complacency such a result. But as we are to pre- sume that the punishment is graduated to the offence, and as far as punishment may expiates the wrong, the mind shrinks from such a consequence. But saying that whatever he might think upon this question if it were res Integra^ he puts his decision upon the case of Paul Lord decided in 1792, and that of Commonwealth v. CuUins. Chief Justice Dana relies upon the cases before stated and a general practice, and also upon the principle that every moment's felonious possession is a new caption. Such was the condition of the law in this State when the case of Commonwealth v. Uprichard came before the court. In that case the original felonious taking was in the province of Nova Scotia. The bringing of the stolen goods into this Commonwealth was held not to be a larceny here. But if it be true that every act of removal or change of possession is a new caption and asportation, that every moment's continuance of the trespass is a new taking, — if this legal fiction has any life, it is difficult to see why the bringing of the goods within another jurisdiction was not a new offence. No distinction in principle exists between this case and a felonious taking in another State and bringing into this. So far as the law of crimes and punishments is CHAP. XXXII. j EBX v.. SIMMOND8. 375 coneemed, the States are as indepeudent of e.aeh other as are the States and the British Provinces. The case of Commonwealth v. Upricharcl rests* I think immovablj, apon the plain grounds that laws to punish crime are local and limited to the boundaries of the States which prescribe them, ; that the com- mission of a crime in another State or country is not a violation of our law, and does not subject the offender to any punishment prescribed b}- our law. These are principles of universal jurisprudence, and as sound as they are universal. It is sometimes said that after all the offender is only tried and con^ victed for the offence against our laws. This clearly is not so. It is only by giving force to the law of the country of the original caption that we can establish the larceny. It is the continuance of the caption felonious by the law of the place of caption. In the directions given to the jury such effect is given to the laws of Rhode Island. The jury were instructed that if the defendant broke and entered into the shop of Henry "W. Dana in Smithfield in Rhode Island and thence brought the goods into this county, the indictment could be maintained- The felonious taking in Rhode Island is the inception and groundwork of the offence. The proceeding is in substance aud effect but a mode of enforcing the laws of and assuming jurisdiction over offences committed in another State. For the reasons thus imperfectly s,tated, I am of opinion that the instructions of the Court of Common Pleas were erroneous, that the exceptions should be sustained, the verdict set aside, and a new trial granted. MsQepiiQns Qverrulecl., REX V. SIMMONDS, I MooDT C. C. 408 [1834]. The prisoner was convicted before Mr. Justice Gaselee, at the spring Assizes 1834, for the County of Kent, of stealing two geldings in that county. The horses were stolen in Sussex. The prisoner was apprehended with them at Croj'don in Surrey. The only evidence to support the charge of stealing in Kent was, that when the prisoner was apprehended at Croydon, he said he had been at Dorking to fetch them, and that they belonged to his brother, who lived at Bromley. The police officer offered to go to Bromley. They took the horses and went as far as Beckenham church, when the prisoner said he had left a parcel at the Black Horse, in some place in Kent. The police officer accordingly 376 CASES ON CRIMINAL LAW. [CHAP. XXXIL went thither with him, each riding one of the horses ; when they got there the oflScer gave the horses to the hostler. The prisoner made no inquiry for the parcel but made liis escape, and afterwards was again apprehended in Surrey. The prisoner was convicted, but the learned judge did not pass sentence upon him, reserving the question whether there were any evidence to support the indictment in Kent. At a meeting of all the Judges m Easter term, 1834, they were unan- imously of opinion that there was no evidence to be left to the jury of stealing in Kent, and that no judgment ought to be given upon this conviction, but that the prisoner should be removed to Surrey. STATE V. BARTLETT,! 11 Veemont 650 [1839], Indictment for stealing two oxen. Plea, not guilty. Upon the trial in the court below testimony was introduced tending to show that the respondent stole the oxen in the Province of Lower Canada and drove them into this county, where he sold them. The respondent contended that though the jury should find the facts which the testimony tended to prove, still the indictment could not be maintained. But the Court charged the jury that if they found from the testimony that the oxen were stolen by the respondent in Canada, and were driven by him into this county, the indictment was sustained. To the charge of the Court the respondent excepted. The jury returned a verdict of guilty. After verdict the respondent filed a motion in arrest of judgment because the minute made by the clerk of the court upon said indictment did not show the " day, month, and year " when it was filed. The minute of the clerk was as follows: "Orleans County Court, Dec. T. 1838. Received and filed this 29th, 1838." The Court overruled the motion, to which the respondent also excepted. Redfield, J. . . . The only remaining ground urged by the respon- dent's counsel is that an indictment for larceny cannot be sustained here where the original caption was in the Province of Canada. If this question were entirely new and to be now decided upon the weight of authority at common law, I confess I should incline to the view taken 1 [See Commonwealth v. Upriohard, 3 Gray, 434; Cummings v. State, 1 Har. & Johns. 340; Hamilton v. State, 11 Ohio, 484; State v. Ellis, 3 Conn. 185; Simmons V. Commonwealth, 6 Binn. 617 ; State v. Brown, 1 Hayn. 100; Simpson v. State, 4 Humph. 456.] CHAP. XXXII.] STATE V. BAETLETT. 377 by the respondent's counsel. For it is expressly laid down by all the English law writers upon this subject that " if the original taking be such whereof the common law cannot take cognizance, or if the goods be taken at sea, the thief cannot be indicted of the larceny in any county into which he shall carry them." 2 Russell on Crimes, 175. The case of the Pirates, 3 Inst. 113 ; 1 Hawk. P. C. c. 33, § 32. The same exceptions obtained in regard to goods taken in any other part of the United Kingdom and brought into any county in England. Rex v. Anderson, 2 East's P. C. c. 16, § 156, p. 772. These obstacles were removed by the statute of 45 & 54 Geo. III. , and 7 & 8 Geo. IV, But in this State the rule has been too long settled and recognized by too long and uniform a course of practice and decision to be now changed unless it be by act of the legislature. We think, too, that the reasons are quite sufficient why the law, upon principles of mere policy, should not be changed. Larceny consists in the felonious taking and carrj'ing awaj- of the goods of another. It implies a forcible violation of the right of the owner in regard to possession as well as property ; and that this should be done secretly or feloniously. Now precisely the same reason found in all the books why the offender is guilty of larceny in every county into which he conveys the goods, — namely, " that everj'^ moment's con- tinuance of the trespass and felony amounts to a new caption and as- portation," — will apply to the present case with the same force of its original use. Hence it has been decided that where goods are taken in one of the United States and brought into another the offender may be indicted in the latter State and there tried. State v. Mockridge, decided by this court some years since in the County of Chittenden and not re- ported. The same rule obtains in some of the other States. Common- wealth V. CuUins, 1 Mass. R. 116 ; Commonwealth v. Andrews, 2 Mass. 14 ; State v. Ellis, 3 Conn. 185. New York and North Carolina have decided otherwise. It is believed no good reason can be urged why the rule should ap- ply as between the American States and not extend to all countries. These States so far as punishment for crimes is concerned are as foreign to each other as distinct nations. There could be no pretence that in the case of Mockridge the stealing of money in the State of New York was any more punishable here than if he had taken it in Canada or even in a country where there is no law on the subject. It could only be upon the ground that the bringing the money into this State "amounted to a new caption and asportation" like the carrying of goods feloniously through more than one county, which is indictable iu either county. Such has been the long established practice in this State. A case is mentioned«by one of my brethren as having occurred 378 CASES ON CEIMINAI. hAW. [OHAP. XXXII. 4 while the late Judge Tichenar was Chief Justice of this court, where the original taking was in Canada and the offeauer fl^as convicted here. Other cases of a similar character are known to have occurred in the State at different periods. We are not disposed to relax the rule. The argument that it might operate severely upon offenders who took prop- erty in a remote section of the Union, and after having carried it through many intervening States should finally be arrested, having passed perhaps a jurisdiction where larceny was a capital offence, is one of those arguments ab inconvenienti which are always specious but not always safe to be relied upon. It is sufficient to say that no country not absolutely barbarous would ever presume to punish any one a second time for the same offence. Again, it would never be in the power of a second jurisdiction to punish the same offence unless the first jurisdiction, after having infiioted the utmost punishment, should surrender the expiated offender to be still further punished, which is not a supposable case in any Christian country. The judgment of the Court is that the respondent take nothing by his exceptions and motion. No further objections being urged he was sentenced to confinement in the State prison. EEGINA V. CARE, 15 Cox C. C. 131, note [1877]. John Cark was indicted for stealing 168 bonds of the Peruvian Gov- ernment, the property of Lionel Cohen and others ; second count, for feloniously receiving the same. There were other counts charging him as an accessary before and after the fact. The bonds in question on the 2d June, 1877, were transmitted by the prosecutors to a customer in Paris. They were traced safely as far as Calais, and were stolen from the train after leaving that place. On the 4th of September the prisoner was found dealing with them in London, and the question arose as to the jurisdiction of this court to try the case, the robberj' having been committed in France. The Solicitor- General submitted that the prosecutors never having parted with their property in the bonds, they were still under the pro- tection of the law and that the subsequent possession of the bonds in this country was sufficiently recent to enable the jury to find a verdict of larceny against a person who was dishonestly dealing with them here. The decision in Eex v. Prowes, 1 Moody C. C. 349, was cer- tainly opposed to this view, but no reasons were given for that judg- CHAP. XXXII.] KBX V. PKOWBS. 379 ment and a doubt as to the soundness of the decision was expressed by Parke, B., in Eegina «. Madge, 9 C. & P. 29. The case of Kegina V. Debrueill, 11 Cox C. C. 207, was referred to. As to the counts charging the prisoner with receiving and also as an accessary, the 24 & 25 Vict, c 94 contemplated a case of this kind where the original offence was committed abroad, ■ ■•••■•■a Denman, J. There can be no doubt that this was a larceny fully completed in France. I do not at all say that it might not be a very reasonable thing that any one afterwards dealing here with property so stolen might make cogent evidence of having received them knowing them to have been stolen just as much as if they had been stolen in England ; but it appears to me that the point has been too solemnly decided for me to give the go-by to those decisions. It has been sol- emnly decided and acted upon so often that there is no jurisdiction in England to try a case where the stealing has been committed abroad, either against the principal or the accessary, that I have nothing to do but to act upon those decisions and to direct an acquittal in this case. I entertain no doubt that the case of Rex v. Prowes (ubi sup.) is directly in point, and Eegina v. Madge (ubi sup.) fortifies it to the ex- tent of recognizing and acting upon it. Debrueill's case also decides that a conviction of receiving under similar circumstances could not be sustained. The prisoner must therefore be acquitted. REX V. PRO WES, » IMoodtC. C. 349 [1832]. The prisoner was tried and convicted before Mr. Selwyn, K. C, at the spring Assizes for the County of Dorset in the year 1832, and or- dered to be transported ' for seven years ; but the execution of the sen- tence was respited in order that the opinion of the judges might be taken on the case. The indictment charged the prisoner with stealing at Dorchester, in the County of Dorset, a quantity of wearing apparel, the property of Thomas Cundy. The things had been taken by the prisoner from a box of the prosecutor's at St. Heller's in the island of Jersej', while the prosecutor was absent at his work at a short distance, and without his leave ; thej' were shortly afterwards found in the possession of the pris- oner at Weymouth, in the County of Dorset, where he had been appre- hended on another charge. ^ [See Rex v. Anderson, 2 East. P. C. 772; Eegina v. Debruiel, 11 Cox C. C. 207 (1861).] 380 CASES ON CKIMINAL LAW. [CHAP. XXXIU. A doubt occurred whether the original taking was such whereof the common law could take cognizance ; and if not whether the case fell within the statute 7 & 8 G. IV. c. 29, § 76 ; or in other words whether the island of Jersey could [be] considered as part of the United Kingdom. 2 Russell, 175. If the original taking be such whereof the common law cannot take cognizance, as if the goods be stolen at sea, the thief cannot be indicted in any county into which he may carry them. 3 Inst. 113 ; 1 Haw. P. C. 33, § 92. A similar exception prevailed formerly where the original taking was in Scotland or Ireland ; and it appears to have been holden that a thief who had stolen goods in Scotland could not be indicted in the County of Cumberland, where he was taken with the goods. Rex v. Anderson and others, Carlisle summer Assizes, 1763 ; and before the judges, November, 1763 ; 2 East, 772, c. 16, § 156. This case was considered at a meeting of all the Judges (except Lord Ltndhdkst, C. B., and Taunton, J.,) in Easter term, 1832; and they held unanimously that the conviction was wrong and that the case was not within 7 & 8 G. IV. c. 29, § 76. CHAPTER XXXm. Laeceny. The Physical Act op Taking. REX V. WALSH, 1 Moody C. C. 14 [1824]. The prisoner was tried before Thomas Denman, Esquire, Common Serjeant, at the Old Bailey Sessions, January, 1824, on an indictment for stealing a leathern bag containing small parcels, the property of William Ray, the guard to the Exeter mail. At the trial it appeared that the bag was placed in the front boot, and the prisoner, sitting on the box, took hold of the upper end of the bag, and lifted it up from the bottom of the boot on which it rested. He handed the upper part of the bag to a person who stood beside the wheel on the pavement, and both had hold of it together, endeav- oring to pull it out of the boot, with a common intent to steal it. CHAP. XXXIII.] BEGINA V. WHITE. 381 Before they were able to obtain complete possession of the bag, and while they were so engaged in trying to draw it out, they were interrupted by the guard and dropped the bag. The prisoner was found guilty, but the facts above stated were specially found by the jury, in answer to questions put to them by the Common Serjeant. The Common Serjeant entertaining some doubts whether the pris- oner could be truly said to have "stolen, taken, and carried away" the bag, he respited the judgment, in order that the opinion of the judges might be taken on the case. In Easter term, 1824, the Judges met and considered this case. They held the conviction right, being of opinion that there was a complete asportation of the bag. EEGINA V. WHITE, 1 Dears. C. C. 203 ; 6 Cox C. C. 213 [1853]. The prisoner was indicted at the last Quarter Sessions for Bei-wick- upon-Tweed for stealing 5000 cubic feet of carburetted hydrogen gas of the goods, chattels, and property of Robert Oswald and others. Mr. Oswald was -a partner in the Berwick Gas Company, and the prisoner, a householder in Berwick, had contracted with the company for the supply of his house with gas to be paid for hy meter. The meter, which was hired by the prisoner of the company, was connected with an entrance pipe through which it received the gas from the company's main in the street, and an exit pipe through which the gas was con- veyed to the burners. The prisoner had the control of the stop-cock at the meter, by which the gas was admitted into it through the entrance pipe, and he onl^' paid the company and had only to pay them for such quantitj' of gas as appeared by the index of the meter to have passed through it. The entrance and exit pipes were the property of the pris- oner. The prisoner, to avoid paying for the full quantity of gas con- sumed and without the consent or knowledge of the company, had caused to be inserted a connecting pipe with a stop-cock upon it into the entrance and exit pipes and extending between them ; and the en- trance pipe being charged with the gas of the company, he shut the stop-cock at the meter so that gas could not pass into it, and opened the stop-cock in the connecting pipe, when a portion of the gas as- cended through the connecting pipe into the exit pipe and from thence to the burners and was consumed there, and the gas continued so to ascend and be consumed until by shutting the stop-cock in the con- necting pipe the supply was cut off. This operation was proved to 382 CASES OJT CRIMINAL LAW. [CHAP. XXXm. have taken place at the time specified by the prosecutor. It was con- tended for the prisoner that the entrance pipe into which the gas passed from the main being the property of the prisoner, he was in law- ful possession of the gas by the consent of the company as soon as it had been let into his entrance pipe out of their main, and that his di- verting the gas in its course to the meter was not an act of larceny. I told the jury that if they were of opinion on the evidence that the en- trance pipe was used by the company for the conveyance of the gas by the permission of the prisoner, but that he had not by his contract any interest in the gas or right of control over it until it passed through the meter, his property in the pipe was no answer to the charge that there was nothing in the nature of gas to prevent its being the subject of larceny ; and that the stop-cock on the connecting pipe being opened by the prisoner and a portion of the gas being propelled through it by the necessary action of the atmosphere and consumed at the burners, there was a sufficient severance of that portion from the volume of gas in the entrance pipe to constitute an asportavit by the prisoner ; and that if the gas was so, abstracted with a fraudulent intent he was guilty of larceny. The jury answered the questions put to them in the affir- mative and found the prisoner guilty ; I postponed judgment, taking re- cognizance of bail according to the statute for the appearance of the prisoner at the next Sessions to receive judgment if this court should be of opinion that he was rightly convicted. Ballantine for the prisoner. The prisoner was not guilty of larceny. He received the gas with the full consent of the company, a,nd the evi- dence only shows that he did not account with the company according to his contract. The prisoner was guilty of fraud in evading the ac- counting by the meter, but his conduct was not felonious. Lord Campbeli,, C J. He took the gas from the company against their will instead of receiving it properly and accounting for it. Ballantine. The Gas Works Qauses Act, 10 Vict. c. 15, § 18, pro- vides a specific penalty for this very offence, which would hardly have been done if it had been regarded as a, larceny. Maule, J. That clause ma3' lie intended to provide against frauds of a different kind, such as dama,ging the machinery or altering the in- dex of the meter, which would not be larceny. Lord Campbell, C. J. Is not this a taking invito domino ? Ballantine. The delivery of the gas is voluntary and the possession was not obtained by fraud. MAtTLE, J. The taking was by turning the gas into a new channd without the leave of the company and that was done with intent to defraud. Ballantine. There was no trespass. CHAP. XXXm.] EEGINA V. HANDS. 383 Matjle, J. If this gas when taken was in the lawful possession of the prisoner and he was only guilty of a breach of contract in not ac- counting, you must say the same of the surreptitious introduction of new burners. Ballantine. An evasion of the meter and an interference with it stand on the same ground. The meter is only the voucher of an ac- count, and if there is a delivery according to contract on the one hand and only a fraudulent dealing with a voucher on the other, there is no larceny. LoKD Cami^ell, C. J. 1 think that the conviction ought to be aflflrmed and that the direction of the learned recorder was most accu- rate. Gas is not less a subject of larceny than wine or oil ; but is there here a felonious asportation? No one who looks at the facts can doubt it. The gas no doubt is supplied to a vessel which is the property of the prisoner, but the gas was still in the possession of the companj'. Then, being in the possession of the company and their property, it is taken away animo furandi by the prisoner. If the property remains in the company until it has passed the meter, — which is found, — to take it before it has passed the meter constitutes an asportation. If the as- portation was with a fraudulent intent — and this the jury also have found — it was larceny. As to the Act of Parliament the legislature has for convenience sake added a specific penalty, but that cannot reduce the offence to a lower degree. My brother Maule has, however, given a probable explanation of that provision. Pakke, B., Maule, J., Talfourd, J., and Maktin, B., concurred. ConvjbCtion affirmed. EEGINA V. HANDS, 16 Cox C. C. 188 [1887]. CROWN CASE RESEBVED. Case reserved by the Quarter Sessions for the Cotinty of Gloucester as follows : — Prisoners Hands and Phelps were severally indicted for that on the 29th day of November, 1886, they did feloniously steal, take, and carry away one cigarette, of the goods and chattels of Edward Shenton, against the peace of our said Lady the Queen. Prisoner Jenner was indicted for an attempt to steal, etc. Prisoners Jenner and Phelps pleaded guilty. Prisoner Henry Hands pleaded not guilt}' and was given in charge to the jury. 384 CASES ON CRIMINAL LA-W. [CHAP. XXXHI. This is a case of larceny from what is known as an automatic box," and the circumstances are as follows : — Mr. Edward Shenton is the lessee of the Assembly Rooms at Chel- tenham and has fixed against the wall of the passage leading from the High Street to the rooms an " automatic box." This box presents the appearance of a cube of about eight or ten inches, and in the upper right-hand corner (facing the operator) of the front face there is a horizontal slit or opening of sufficient size to admit a penny piece. In the centre of the face is a projecting button or knob about the size of a shilling. In the lower left-hand corner is a horizontal slit or opening of suffi- cient size to allow of the exit of a cigarette. There is an inscription on the face of the box : " Only pennies, not halfpennies." Also : "To obtain an Egyptian Beauties cigarette place a penny in the box and push the knob as far as it will go." If these directions are followed a cigarette will be ejected from the lower slit on to a bracket placed to receive it. The box is the property of the Automatic Box Company. The ciga- rettes with which it was charged belonged to Mr. Shenton. For some time past Mr. Shenton has found on clearing the box, which he did once or twice a daj', that a large number of metal disks (brass and lead) of the size and shape of a penny had been put in and a corresponding number of cigarettes had been taken out. In consequence of this discovery a watch was set upon the box, and upon the day named in the indictment, the box having been previously cleared, two gentlemen were seen to go to it ; each put something in and each took a cigarette as it appeared. The box was then examined and found to contain one English penny and one French penny. These coins were left in. The box was locked and the watch was again set. Shortly after this, three lads (afterwards proved to be the three pris- oners) were seen to come to the entrance of the passage. One of them came in, went to the box, put something in, obtained a cigarette, and then rejoined the other two at the entrance. This was repeated a second time. The third time it was observed that the box would not work, and while the lad, who afterwards was found to be the prisoner Jenner, was pushing at the knob the watchman came from his place of concealment and put his hand upon him. The box was then opened and a piece of lead was discovered stuck in the " valve," which had the eflfect of preventing the machinery of the box from working. CHAP. XXXIII.] EEGINA V. HANDS. 385 It was then found that the box contained (besides the English and French pennies already mentioned) two disks of brass about the size and shape of a penny. No other coin or metal piece was found in the box and no one (but the three lads as above mentioned) had approached it after the two gentlemen who had put in the English and French pennies. The prisoner Jenner was given in charge to the police and the two other prisoners were subsequently apprehended. Upon being brought together at the police station the prisoners all made statements more or less implicating themselves and each other. The prisoner Hands said : Me and Jenner met Phelps about 7.45 P.M. Phelps said: " I want to go to Dod wells." I did not go and we went down into the High Street. Phelps and Jenner stopped by the Assembly Rooms and went in ; I remained outside. I believe Jenner was caught at the box. Mr. Shenton's man took him inside. I after- wards put a penny in the box and had a cigarette myself. The pieces of brass produced are cut in our shop, the blacksmith's shop at Mr. Marshall's. In leaving the case to the jury the learned chairman told them that they would have to consider : First, was there a theft committed ; that is, was Mr. Shenton unlawfuUj' deprived of his property without his knowledge or consent? Secondly, if that were so, were they satisfied that the prisoner (Hands) took any part in the robbery ? He also told them that if they thought that the prisoner was one of the three lads who came to the entrance of the passage and that he was there with the others for the common purpose of unlawfully taking the cigarettes from the box ; or that he afterwards partook of the proceeds of the robbery ; or that he had taken a part in making the disks, knowing for what purpose they were to be used, that they would be justified in find- ing him guilty although he might not actually have put the disks into the box or have taken out a cigarette. The jury found the prisoner (Hands) guilty, and upon motion in ar- rest of judgment on the ground that " the facts as disclosed by the evi- dence were not sufficient to constitute a larceny," all the prisoners were allowed to stand out on bail until the next Quarter Sessions. The question for the Court was whether the facts as disclosed by the evidence were sufl8cient to constitute a larceny. Lord Coleridge, C. J. In this ease a person was indicted for com- mitting a larceny from what is known as an " automatic box," which was so constructed that if you put a penny into it and pushed a knob in accordance with the directions on the box a cigarette was ejected on to a bracket and presented to the giver of the penny. Under these circumstances there is no doubt that the prisoners put in the box a 25 386 CASES ON CRIMINAL LAW. [OHAP. XXXIV piece of metal wMch was of no value but which produced the same effect as the placing a penny in the box produced. A cigarette was ejected, which the prisoners appropriated ; and in a case of that class it appears to me there clearlj' was larceny. The means by which the cigarette was made to come out of the box were fraudulent and the cigarette so made to come out was appropriated. It is perhaps as well to say that the learned chairman somewhat improperly left the question to the jury. He told them that if they thought that the prisoner Hands was one of the three lads who came to the entrance of the passage and that he was there with the others for the common purpose of unlawfully taking the cigarettes from the box, or that he afterwards partook of the proceeds of the robbery, they would be justified in finding him guilty,— he did not say larceneously or feloniously; and he further directed them that if they thought the prisoner had taken a part in making the disks, knowing for what purpose they were to be used, they would be justified in finding him guilty although he might not actually have put the disks into the box or have taken out a cigarette. Now I am not quite sure that simply the fact of doing an unlawful thing, as joining in the manufacture of a disk that some one else was to use, would make him guilty of larceny. He might be guilty of something else but I doubt very much whether he could be convicted of larceny. As upon the facts of the case, however, I do not think that the jury could have been misled ; and as upon the facts there was undoubtedly a larceny committed, I am not disposed to set aside the conviction. Pollock, B., Stephen, Mathew, and Wills, JJ., concurred. Conviction affirmed. CHAPTER XXXIV. Larceny with Aggravation. Section 1. Larceny from the Person. EEGINA V. SELWAY, 8 Cox C. C. 235 [1859]. The prisoners were indicted for robbery and stealing from the per- son. The evidence showed that the prosecutor, who was paralyzed, received, while sitting on a sofa, in a room at the back of his shop, a SECT. II.] BEX V. CAMPBELL. 387 violent blow on the head from one of the prisoners, while the other went to a Cupboard in the same room, and stole therefrom a cash box, with which he made off. Orridge, for the prisoners, submitted that on this evidence there was no proof of a stealing from the person. The cash box at the time it was stolen was at some distance from the place where the prosecutor was sitting, and could not be said, therefore, to be about his person. Eobinson, for the prosecution, contended that it was quite suffi- cient for the purposes of the indictment to show that the cash box was under the protection of the prosecutor ; it need not be in his bodily possession. He was near enough to it to protect it, at least by raising an alarm. It was laid down in 1 Hale P, C. 533, " If a thief put a man in fear, and then in his presence drive away his cattle, it is a robbery. So, if a man being assaulted by a robber throw his purse into a bush, or flying from a robber, let fall his hat, and the robber in his presence take up the purse or hat and carry it away, this would be robbery." The Common Sergeant, having consulted Mr. Justice Crowder and Mr. Baron Channell, held that although the cash box was not taken from the prosecutor's person, j'et it being in the room in which he was sitting, he being aware of that fact, it was virtually under the pro- tection of his person. He should under the circumstances leave this question to the jury : Was the cash box under the protection of the prosecutor's person at the time when it was stolen? The jury found that it was. Guilty. SectioJi 2. Lakcent from a Building. REX V. CAMPBELL, 2 Leach C. C. 6^2 [1792]. At the Old Bailey in January Session, 1792, the prisoner was tried before Sir James Eyre, Knt., Lord Chief Baron, present Mr. Justice Buller and Mr. Justice Wilson, on an indictment charging "that James Campbell, late of the parish of St. Martin in the Fields, in the county of Middlesex, laborer; alias John Campbell, late of the same, laborer ; alias James Pitt, late of the same, laborer ; alias John Doug- las, late of the same, laborer, on the 6th day of May, in the twenty- ninth year of the reign of George the Third, King of Great Britain, etc., with force and arms, at the parish aforesaid, in the county afore- said, in tiie dwelling-house of Charlotte Margaretta Adams, widow, there situate, feloniously did steal, take, and carry away one prom'- 388 CASES ON CKIMINAL LAW. [CHAP. XXXIV. issory note, called a bank note, of the value of twenty-five pounds (the said note at the time of committing the felony aforesaid being the property of the said Charlotte Margaretta Adams, the said sum of twenty-five pounds payable and secured by the said note being then due and unsatisfied to the said Charlotte Margaretta Adams, the proprietor thereof), against the statute, etc., and against the peace," etc. It appeared in evidence that the prosecutrix, Mrs. Adams, kept a common lodging-house in Buckingham Street, in York Buildings. In the month of May, 1789, the prisoner, in the name of Major or Colonel Campbell, hired Mrs. Adams's first floor, and insinuated himself into her confidence and good opinion by telling her that he was well ac- quainted with her family, particularly with her brother, a young gentle- man then in his Majesty's service at Gibraltar. On the morning of the ensuing day the overseer of the parish called on Mrs. Adams for the payment of certain taxes, and she took the bank note ' of twenty-five pounds, as described in the indictment, from her pocket, and gave it to the overseer to change ; but he not having suflScient cash for that purpose, she gave it to her servant, Ann Morgan, who, by Mrs. Ad- ams's desire, took it to the prisoner in the first fioor, with her mistress's compliments, requesting that he would give her change for it. The prisoner took out his purse, and examining its contents, told her that he had not gold enough about him for the purpose, but that he would go immediately to his banker's and get it changed ; and he accordingly left the house with the bank note in his hand, but never returned. Mrs. Adams, soon afterwards suspecting the prisoner's integrity, gave inforitiation of the circumstances at Bow Street ; but he was not apprehended until the month of January, 1791. The statute 12 Anne, c. 7, entitled "An Act for the more effectual preventing and punishing robberies that shall be committed in dwelling- houses," recites ' ' that divers wicked and ill-disposed servants, and other persons, are encouraged to commit robberies in houses by the privilege, as the law now is, of demanding the benefit of their clergy ; " and enacts " that all and every person or persons that shall feloniously steal any money, goods or chattels, wares or merchandises, of the value of forty shillings or more, being in any dwelling-house, or outhouse thereunto belonging, although such house or outhouse be not actually broken by such offender, and although the owner of such goods, or any other person or persons be or be not in such house or outhouse, or shall assist or aid any person or persons to commit any such ofience, shall be absolutely debarred of the benefit of clergy." ^ See Rex v. William Dean, July session, 1795, that bank notes are money within the meaning uf 12 Anne, c. 7. SECT. II.] EBX V. TAYLOE. 889 A question arose whether, under the circumstances of this case, the prisoner was debarred by the above statute of the benefit of clergj', the statute having been made to protect such property as might be depos- ited in the house, and not that which was on the person of the party. The jury found the prisoner guilty, and the case was saved for the opinion of the judges. The Judges were of opinion that it was not a capital offence within the 12 Anne, c. 7, and the prisoner was sentenced to be transported for seven years. EEX V. TAYLOR, Russ. & Ey. 418 [1820]. The prisoner was tried and convicted before Mr. Justice Park, in the year 1820, of stealing a watch in the dwelling-house of John Wake- field, to the value of forty shillings. The prisoner lodged in the house of John Wakefield, and the pros- ecutor, who was an old acquaintance of the prisoner, and who could not get a bed in the public-house where they met, accepted an invita- tion to take part of the prisoner's bed. They went home together, and neither John Wakefield nor any of his family knew of the prosecutor's being there ; so that he was the guest of the prisoner. The prisoner stole the prosecutor's watch from the bed-head. It having been held that the statute 12 Anne, Stat. 1, c. 7, does not extend to a man stealing in his own house, the learned judge doubted whether the prisoner was not to be considered as the owner of the house with respect to the prosecutor. The statute was made for the protection of propertj'^ deposited in the house, and not on the person of the party ; and the prosecutor was neither the occupier nor a settled inhabitant of the house in which the watch was taken. The learned judge respited the judgment to take the opinion of the judges on this conviction. In Easter term, 1820, ten of the judges met and considered this case. The majority, namely, Burrough, J., Holkoyd, J., Wood, B., Batley, J., Graham, B., Richards, C. B., and Abbott, Lord C. J., held the conviction right. Richardson, J., Best, J., and Garrow, B., contra. 390 CASES ON GEIMINAIi LAW. [CHAP, xyvTV. EEGINA V. BOWDEN, 2MoodtC. C. 285 [1843]. The prisoner was tried before Mr. Baron Alderson at the spring Assizes for the County of Derby, in the year 1843. The indictment charged him with stealing at the parish of Glossop, on the 5th of April, in the dwelling-house of him the said James Bowden there aitna,te, various chattels above the value of £5, the property of Harris Seagall. The case was fully proved, but as it was a case for transportation, and as the learned judge entertained a doubt whether the offence charged amounted to that of stealing to the value of £5 within a dwelling-house (the dwelling-house in the indictment being that of the prisoner himself) , in which case the minimum punishment was trans- portation for ten years, or only to a charge of simple larceny, in which case the maximum was transportation for seven years, the learned judge respited the judgment, reserving the question for the opinion of the judges, that they might determine which of the two sentences would be legal. This case was considered at a meeting of the Judges in Easter term, 1843, and they all thought the conviction for the whole offence right. EEX V. GOULD,» Leach C. C. 257 [1780]. At the Old Bailey in January Session, 1780, Anne, the wife of John Gould, was tried before Nares, Justice, present Skinner, Chief Baron, Ashhurst, Justice, and Adair, Recorder, on an indictment charging the prisoner with having stolen " one leathern purse containing six guineas, etc.," the property of William Herring, in the dwelling-house of the said John Gould. This indictment was framed on the statute of 12 Anne, c. 7, which enacts "that every person that shall feloniously steal any money, goods, etc., of the value of forty shillings, being in any dwelling-house or outhouse thereunto belonging, although such house or outhouse be not actuallj' broken by such offender, and although the owner of such goods, or any other person, be or be not in such house, etc., shall be absolutely debarred of clergy." 1 [See Rex v. March, 1 Moody C. C. 182 ; Commonwealth v. Hartwell, 3 Gray, 460.] CHAP, XXXV.] TAYLOR V. NEWMAN. 391 The Judges present were clearly of opinion, in which Mr. Justice Gould afterwards concurred, that the prisoner could not be convicted of the capital part of the indictment, inasmuch as the, felony was com- mitted in the dwelling-house of her husband, which must be construed to be her house also, and it is apparent that the legislature intended that the stealing must be in the house of another person, to oust the offender of clergy. CHAPTEK XXXV. Statutory Offences Supplementary to Larceny.* Ceetain Genbkal Principles of Constkuction. REGINA V. ROBINSON, Bell C. C. 34. TAYLOR V. NEWMAN, 9 Cox C. C. 314 [1863]. This was a case stated by justices at petty sessions upon a conviction under section 23 of the 24 & 25 Vict. c. 96 (the Larceny Consolida- tion Act), for unlawfully killing a pigeon. By the above section it is enacted: "Whosoever shall unlawfully and wilfully kill, wound, or take any house-dove or pigeon, under such circumstances as shall not amount to larceny at common law, shall, on conviction before a justice of the peace, forfeit and pay over and above the value of the bird any sum not exceeding £2." The facts of the case were these. A number of house pigeons be- longing to a Mr. Lloyd were kept for him at or near the house of one Thomas Newman, his gamekeeper, the respondent. The appellant is a farmer, whose land is very near the house of the respondent, and the pigeons in question were in the habit in the day ' B. g., taking from realty ; the various forms of embezzlement ; cheating by false pretences ; wrongful assuming of custody or of a temporary possession ; certain forms of malicious mischief,, etc. 392 CASES ON CELMIKAL LAW. [CHAP. XXXV. time of flying over and upon and feeding on appellant's lands. Ap- pellant complained to the respondent of the injury he supposed to be done him by the pigeons, and on the 1st of January, 1863, he caused the notice hereinafter set forth to be served on Mr. Lloyd. On the 5th of February last appellant, with a loaded gun in his hand, went into one of his fields, where the said pigeons were feeding on the ground. Appellant fired at the pigeons and thereby caused them to rise. Ap- pellant then fired at them a second time, and killed one of the pigeons, which he left dead on the ground. The value of the pigeon killed was said to be 2s. 6c?. The following is a copy of the notice served on Mr. Lloj-d above mentioned : — Hastings, 1st January, 1863. Sir, — Mr. Stephen Taylor, of Merriments Farm, Solehurst, has complained to us of the serious injury and annoyance he has sustained, and still continues to suffer, by reason of your pigeons being allowed to feed on his land, and he states he has in vain complained to you through your keeper about the matter, and he has now instructed us to inform you that he shall hold you responsible for all damages he may sustain in consequence; and we have to request that you will immediately cause them either to be destroyed, or prevent them doing further injury to Mr. Taylor's crops ; if not, although Mr. Taylor will very much regret to do any act which may be considered at all unneighborly, he will be compelled in self-defence to shoot or otherwise destroy such pigeons, besides claiming damages against you as above stated; and you will be pleased to take this as notice of such his intention. We are, etc., J. G. Langham & Son. On these facts it was contended by the appellant's attorney that the killing of the pigeon under the circumstances above stated was not an " unlawful killing," aud therefore did not render appellant liable to the penalty imposed by the 23d section of 24 & 25 Vict. c. 96, because after giving the above-mentioned notice, and the pigeons being still permitted to come upon his land, the appellant was justified by law in killing the said pigeons. Blackburn, J. I confess that I have entertained some little doubt upon the subject, but I think that upon a proper construction of the statute the appellant ought not to be convicted. The section in ques- tion is found in a statute " to consolidate and amend the statute law of England and Ireland relating to larceny and other similar offences;" and as far as this provision goes it is a re-enactment of a section in the previous Act of the 7 & 8 Geo. IV. c. 29, and the preamble recites that " it is expedient to consolidate and amend the statute law of England and Ireland relating to larceny and other similar offences ; " and this CHAP. XXXVI.] EB CLAPTON. 393 leads to the inference that the offences contemplated by the statute are those ejusdem generis with larceny. Now the section as to pigeons follows immediately after that applicable to dogs and some other ani- mals, and it imposes a penalty for unlawfully and wilfully killing, wounding, or taking any house-dove or pigeon under such circumstances as shall not amount to larceny at common law. Now, what is the kind of unlawful killing here referred to ? There has been at times consid- erable difficulty in knowing whether the taking of pigeons under certain circumstances, as where they are not taken from the pigeon-house, amounts to larceny ; and it was to meet such cases that the section was framed. I think in this case that the farmer, who was protecting his crops, and who really thought he was doing a lawful act, cannot be said to have unlawfully killed the bird. The section must be taken in con- nection with the rest of the statute which applies to larceny ; and, there- fore, although I have entertained some doubts upon the subject, I think that the justices were wrong. • • • • • ■ • ■'• Conviction quashed. CHAPTER XXXYI. Embezzlement. Ee CLAPTON, 3 Cox C. C. 126 [1848]. The prisoner was indicted for embezzlement. The prosecutor stated that the accused was in his employ ; that the nature of his emploj^ment had been inserted in a memorandum prior to his giving a bond ; that the memorandum was signed by both parties, and that the prisoner took it away with him. No notice to produce the memorandum had been given. Ballantine, for the prisoner, contended that it was not competent for the prosecution to give evidence of tlie nature of the service without producing the agreement or proying that notice to produce it had been given. Parry, for the prosecution, submitted that he was not bound to pro- duce the agreement ; the terms of it were quite immaterial to the pre- sent issue. The simple question was, whether the prisoner had been 394 CASES ON CRIMINAL LAW. [OHAP. XXXVI, servant, and not what were his duties as such. The one was a mere matter of fact, namely, What had been done ? The other was, What was agreed to be done ? £allantine replied. Patteson, J. To substantiate this charge, it is essential that the money should have been received by the prisoner by virtue of his em- ployment. It appears there has been an agreement between these pa.rties, in which the prisoner's duty was defined ; and if so, he received this money by virtue of an employment, the nature of which is contained in a written instrument. That instrument ought to be produced, or notice to produce it should have been given. There is nothing to take the case out of the general rule that you cannot give parol evidence of the contents of any written .agreement, otherwise we should fall into that great difflcultj',^ the fallacy of human recollection. I remember two or three unreported cases tried at Warwick — one before Mr.. Justice Coleridge — in which it was held that under such circumstances the agreement must be produced. EEGINA V. BARNES, SCoxC.C. 129 [1858]. Prisoner was indicted for that he being the servant of Joseph Hill and others, did embezzle two sums of £68 10s., and £29 9s. Id., their property. It was proved that prisoner, who was a coal and timber mer- chant, fell into difficulties, and made an assignment of all his goods, effects, and book debts. After the execution of this assignment, he received the two sums of money in question, which had been debts previously due to him, and he had not, accounted for the receipt of those sums. After the execution of the deed the prisoner had been employed by the trustees, at a salary, to conduct the business for the benefit of the trustees. Byles, J., said the difficulty was to make out that,, in point of law, the prisoner was a clerk, or servant, or acting in the capacity of a ser- vant within the meaning of the statute. It was clear that these debts were not assignable in law ; they were choses in action, and the deed would only bind him in equitj'. The moment he received these moneys, they were his own moneys ; he received what, in point of law, was his own money. How then, could he be guilty of embezzlement ; or how could he be said to be clerk or servant to the trustees ? He could not. CHAP. XXX VI. J EEGINA V. MASTERS. 395 in point of law, pass the property in the debts dae to him before the deed was executed. His assignees were only equitable assignees ; they could only sue in his name. The deed could only pass that which he actually had in his possession at the time the deed was executed. Under these circumstances the indictment could not be sustained. The prisoner was, therefore, acquitted. REX V. SULLENS, 1 MooDT C. C. 129 [1826]. The prisoner was tried before Alexander, C. B., at the spring Assizes for the County of Essex, in the year 1826, on an indictment at common law, the first count of which charged the prisoner with stealing at Doddinghurst, on the 25th September, 1825, one promis- sory note, value £5, the property of Thomas Nevill and George Nevill, his master ; the second count with stealing silver coin, the property of Thomas Nevill and George Nevill. It appeared in evidence that Thomas Nevill, the prisoner's master, gave him a £5 country note, to get change, on the said 25th of Sep. tember; that he got change, all in silver, and on his obtaining the change he said it was for his master, and that his master sent him. The prisoner never returned. The jury found the prisoner not guilty on the first count, but guilty on the second count. The question reserved for the consideration of the judges was, whether the conviction was proper, or whether the indictment should not have been on the statute 39 Geo. III. c. 85, for embezzlement. In Easter term, 1826, the Judges met and considered this case, and held that the conviction was wrong, because as the masters never had possession of the change, except by the hands of the prisoner, he was only amenable under the statute 39 Geo. III. c. 85. EEGINA V. MASTERS, 3 Cox C. C. 178 [1848]. CROWN CASE RESERVED. [Indictment for embezzlement.] • ■■■•■■ •• It appeared in evidence that the course of business adopted Dy the house was for the customers to pay moneys into the hands of certain 396 CASES ON CRIMINAL LAW. [OHAP. XXXVI, persons who paid them over to a superintendent ; he accounted with the prisoner and paid over such moneys to him, and the prisoner in his turn accounted with cashiers and paid over the moneys to them, he having no other duty to perform with respect to such moneys than to keep an account which might act as a check on the superintendent and the cashiers, these accounts being in like manner checks on him. These four parties to the receipt of the moneys are all the servants of the prosecutor. With respect to the three sums in question it was proved that they passed in due course from the customers through the hands of the im- mediate receivers and the superintendent to the prisoner, who wilfully and fraudulently retained them. On behalf of the prisoner it was objected on the authority of Rex v. Murray, 1 Moody's C. C. 276, that the moneys having, before they reached the prisoner, been in the possession of the prosecutor's ser- vants, did in law pass to the prisoner from his master, and that conse- quently the charge of embezzlement could not be sustained. For the Crown it was answered that the j)risoner having intercepted the moneys in their appointed course of progress to the master, this case was not governed bj- that of Rex v. Murray. There the prior possession of the master having been as complete as it was intended to be, the money might reasonably be considered as passing from the master to the prisoner, whereas in the present case it was in course of passage through the prisoner to the master. The recorder left the case to the jury, reserving the point. Pollock, C. B. "We are all agreed that the conviction is right. This is not at all one with the case of Rex v. Murray, 1 Moody C. C. 276 ; 5 C. & P. 145, where the prisoner had received money from another clerk on behalf of the master that he might employ it for a particular purpose. That case was held not to be within the statute because the master had had possession of the money by the hands of another clerk ; but in this case I quite adopt the expression of the learned recorder, that the money was in course of progress or on its way to the master. It appears that the course of business was this, — that the money is originally received by one servant whose duty it is to hand it to an- other, and that so it is handed from one person to another until it gradually reaches the hands of the cashier. The prisoner was one of those into whose hands it came in the course of transit ; he received and embezzled it ; and it seems to me the conviction is right. Patteson, J. I entirely concur in the opinion expressed by the Lord Chief Baron. Rex v. Murray was quite a different case. There there was in truth a delivery by the master to another person and by him to CHAP. XXXVI.] EEGINA V. HAEEIS. 397 the prisoner who received the money, not on account of the master but to pay to a third person. Here it was clearly received on account of the master. As to the other point the jurisdiction is as plain as it can be. . . . Conviction affirmed. EEGINA V. HARRIS, 6 Cox C. C. 363 [1854]. COURT OF CRIMINAL APPEAL. [Indictment for embezzlement.] ■ ■•...■•a Haeeis was the miller of a mill in the jail of the County of Worces- ter. It was the duty of the prisoner to direct any persons bringing grain to be ground at the mill to obtain at the porter's lodge at the jail a ticket specifying the quantity of grain brought. The ticket was his order for receiving the grain. It was the duty of the prisoner to receive the grain with the ticket, to grind the grain at the mill, to re- ceive the money for the grinding from the person so bringing the grain with the ticket, and to account to the governor of the jail for the money so received. The governor accounted for the same to Sir Ed- mund Lechmere, the treasurer of the county rates. It was a breach of the prisoner's duty to receive or grind grain without such a ticket as above ^mentioned ; but he had no right to grind any grain at the mill for his private benefit. The prisoner was appointed to his situation by the magistrates of the Countj' of Worcester, myself, and others, at a fixed weeklj' salary, which was paid to him out of the county rates hy the governor of the jail, who received the money for the purpose from Sir Edmund Lechmere. The moneys which the prisoner misappropriated he received from persons for grinding their grain at the mill ; but none of these persons had obtained a ticket as above mentioned from the porter's lodge, nor had they been directed by the prisoner to obtain such tickets, nor was there in fact any ticket at all. Pollock, C. B. We are all of opinion that this conviction cannot be supported; The only point on which I am to pronounce the unanimous opinion of the Court is this : That on the facts stated it appears that the defendant had no right on behalf of his master to grind any corn but 398 CASES O^ CRIMINAL LAW. [cHAP. XXXVI. that which was btought with a ticket ; and that the reasonable conclu- sion is that, as to all corn ground without a ticket, he intended to make an improper use of the machine and did use it on those occasions for his private benefit. The money therefore was not received on account of his master and he was not guilty of embezzlement. Conviction quashed. REGINA V. CULLUM, L. R. 2 C. C. R. 28 [1873]. Case stated by the Chairman of the "West Kent Sessions. The prisoner was indicted as servant to George Smeed for stealing £2, the property of his master. The prisoner was employed by Mr. Smeed of Sittingbourne, Kent, as captain of one of Mr. Smeed's barges. The prisoner's duty was to take the barge with the cargo to London and to receive back such return cargo and from such persons as his master should direct. The prisoner had no authority to select a return cargo or take any other cargoes but those appointed for him. The prisoner was entitled by way of remuneration for his services to half the earnings of the barge after deducting half his sailing expenseSi Mr. Smeed paid the other half of such expenses. The prisoner's whole time was in Mr. Smeed's service. It was the duty of the prisoner to account to Mr. Smeed's manager on his return home after every voy age. In October last, by direction of Mr. Smeed, the prisoner took a load of bricks to London. In London he met Mr. Smeed and asked if he should not on his return take a load of manure to Mr. Pj'e of Cax- ton. Mr. Smeed expressly forbade his taking the manure to Mr. Pye and directed him to return with his barge empty to Burham and thence take a cargo of mud to another place, Murston. Going from London to Murston he would pass Caxton. Notwithstanding this prohibition the prisoner took a barge-load of manure from London down to Mr. Pye at Caxton, and received from Mr. Pye's men £4 as the freight. It was not proved that he professed to carry the manure or to receive the freight for his master. The servant who paid the £4 said that he paid it to the prisoner for the carriage of the manure but that he did n6t know for whom. Early in December the prisoner returned home to Sittingbourne and proposed to give an account of his voyage to Mr. Smeed's manager. The prisoner stated that he had taken the bricks to London and had returned emptj' to Burham, as directed by Mr. Smeed* and that there he had loaded with mud for Murston. CHAP. XXXVI.] EEGINA V. CXTLLITM. 399 In answer to the manager's inquiries the prisoner stated that he had not brought back any manure in the barge from London, and he never accounted for the £4 received from Mr. Pye for the freight for the manure. The jury found the prisoner guilty as servant to Mr. Smeed of em- bezzling £2. The question was whether, on the above facts, the prisoner could be properly convicted of embezzlement.* M T. Smith (with him Moreton Smith) for the prosecution. The prisoner received this freight either "for" or " on account of his mas- ter or employer," and therefore is within the terms of 24 & 25 Vict. c. 96, § 68. The words " by virtue of such employment," which were in the repealed statutes relating to the same offence, have been " advisedlj' omitted in order to enlarge the enactment and get rid of the decisions On the former enactments." Greaves' Crim. Law Consolidation Acts, p. 117. [Bovn-L, C. J. An alteration caused by the decision of Rex v. Snow- ley,^ which was a case resembling the present one. Blackbdkn, J. How can the money here be said to have been re- ceived into the possession of the servant so as to become the property of the master?] The prisoner was exclusively employed by the prosecutor. With his master's barge he earned, and in the capacity of servant received, £4 as freight, which on receipt by him at once became the property of his master. Rex v. Hartley.* [Blackburn, J. But in this case the servant was disobeying orders. Suppose a private coachman used his master's carriage without leave and earned half-a-crown by driving a stranger, would the monej' be re- ceived for the master so as to become the property of the latter?] Such coachman has no authority to receive any money for his mas- ter ; the prisoner, however, was entitled to take freight. [BovTLL, C. J. He was expressly forbidden to do so on this occasion.] Can it be said that he may be guilty of embezzlement if in obedience ' 24 & 25 Vict. c. 96, § 68, enacts that " Whosoever, being a clerk or servant or being employed for the purpose or in the capacity of a clerk or servant, shall fraud- ulently embezzle any chattel, money, or valuable security vfhich shall be delivered to or received or taken into possession by him for or in the name or on the account of his master or employer, or any part thereof, shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money, or security was not received into the possession of such master or employer otherwise than by the actual possession of his clerk, servant, or other person so employed. . . ." * 4 C. & P. 390. ' Euss. &Ry. 139.. 400 ^ CASES ON CRIMINAL LA"W. [CHAP. XXXVI. of orders he receives money, and yet not guilty of that crime if he is acting contrary to his master's commands? See note to Regina v. Har- ris' in 2 Russell on Crimes, 4th ed., p. 453. [Blackburn, J. In suggesting that case to be erroneous the editor seems to assume that the decision proceeded on the words " by virtue of his employment," whereas it did not. Bramwell, B. Suppose the captain of a barge let his master's ves- sel as a stand to the spectators of a boat-race and took payment from them for the use of it?] Such use would not be in the nature of his business. [Blackburn, J. In the note to this section hy Mr. Greaves he re- marks : " Mr. Davis ^ rightly says that ' this omission avoids this tech-> nical distinction ; ' but he adds, ' still it must be the master's money ■which is received by the servant, and not monej' wrongfully received by the servant by means of false pretences.' This is plainly incorrect." But in my opinion Mr. Davis was plainly correct and Mr. Greaves wrong. Regina v. Thorpe.'] BoviLL, C. J. In the former Act relating to this offence were the words " by virtue of his employment." The phrase led to some difll- culty ; for example, such as arose in Regina v. Snowlej' * and Regina v, Harris.' Therefore in the present statute those words are left out, and § 68 requires instead that in order to constitute the crime of em- bezzlement by a clerk or servant the " chattel, money, or valu- able security . . . shall be delivered to or received or taken into possession by him, for or in the name or on account of his master or employer." Those words are essential to the definition of the crime of embezzle- ment under that section. The prisoner here, contrary to his master's orders, used the barge for his, the servant's, own purposes and so earned money which was paid to him, not for his master but for him- self ; and it is expressly stated that there was no proof that he pro- fessed to carry for the master, and that the hirer at the time of paying the money did not know for whom he paid it. The facts before us would seem more consistent with the notion that the prisoner was mis- using his master's property and so earning money for himself and not for his master. Under those circumstances the monej' would not be re- ceived " for" or " in the name of" or " on account of" his master but for himself, in his own name, and for his own account. His act there- fore does not come within the terms of the statute, and the conviction must be quashed. 1 Dears. C. C. 344. a Davis' Criminal Statutes, p. 70. » Dears. & B. C. C. 562. * 4 C. & P. 390. s Dears. C. C, 344. CHAP. XXXVI.] EEX V. HEADGB. 401 Beamwell, B. I am of the same opinion. I thiink in these cases we should look at the substance of the charge and not merely see whether the case is brought within the bare words of the Act of Parliament. Now the wrong committed by the prisoner was not fraudulent or wrongful with respect to money, but consisted in the improper use of his master's chattel. The offence is, as I pointed out during argument, only that which a barge-owner's servant might be guilty of, if when navigating the barge, he stopped it, allowed persons to stand upon it to view a passing boat-race, charged them for so doing, and pocketed the money they paid to him. There is no distinction between that case and this save that the supposititious case is more evidently out of the limits of the statute. The use of this barge by the prisoner was a wrongful act yet not dis- honest in the sense of stealing. But I wiU add that I do not think this case even within the words of the statute. The servant undoubtedly did not receive the money " for" his master nor " on account of" his master nor "in the name" of his master. Nevertheless I doubt ex- tremely whether on some future day great difficulty may not arise as to the meaning of these expressions in § 68, for I doubt whether, although the servant had used his master's name, he would have been within the terms of the Act of Parliament. " In the name of " his master is a very curious expression. Suppose a person in service as a carter had also a horse and cart of his own and employed them to do some or other work, professing them to be his master's, and received hire for it "in the name of" his master, would that be embezzlement? Could he be rightly convicted under this section? I doubt it extremelj'. The words " in the name of" his master, although inserted with a desire to obviate difficulties, seem to me likely hereafter to raise them. REX V. HEADGE, Russ. & Rt. 160 [1820]. The prisoner was tried and convicted before Mr. Justice Bayley at the Old Bailey Sessions, September, 1809, on the statute 39 G. III. c. 85,^ for embezzling three shillings, which he received for and on account of his masters, James Clarke and John Giles. 1 Which enacts that if any servant or clerk or any person employed for the pur- pose in the capacity of a servant or clerk to any person whomsoever, shall, by virtue of such employment, receive or take Into his possession any money, goods, etc., or effects, for or in the name or on the account of his master or employer, and shall 26 402 CASES OK CBIMINAIi LAW. [CHAP. XXXVI. It appeared from the: evidence that the prosecutors desired a neigh- bor, one Francis Moxon^ to go to their shop and purchase some articles in order that they might discover whether the prisoner put the money which he received for the goods sold into the till ; the prosecutors sup- plied Moxon with three shillings of their own money for this purpose, which money they marked, Moxon went to the shop, bought the arti- cles, and paid the prisoner tiie three shillings. The prisoner embezr zled this money. It was urged on behalf of the prisoner that the prosecutors had con- structively the possessioa of this money up to the time of the embezzler ment and that they had parted with nothing but the mere custody. The prisoner it was contended might have been indicted for larceny at. com- mon law, but that the statute did not apply to cases where the money before its delivery to the servant had been in the master's possession and might legally be considered the masters' at the time of such deliv- ery, as Moxon in this case was the masters' agent and his possession theirs. The learned judge before whom this case was tried thought it de- served consideration and reserved the point for the opinioa of the judges. In Michaelmas term, 1809, the Jubges met and held the conviction right, upon the authority of Bull's Case,'' iu which the judges upon similar facts held a common-law indictment could not be supported. It seemed to be the opinion of the judges that the statute did not apply to cases which are larceny at common law.* EEGINA V. BOWERS, , L. R. 1 C. C. R. 41 [1866]. COURT FOR CROWN CASES RESERVED. The following case was stated by the assistant judge of the Mid- dlesex Sessions: — Samuel Bowers was tried before me at the Sessions of the Peace for Middlesex, on the 10th of January, 1866, upon an indictment which fraudulently embezzle, secrete, or make away with the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master or employer, for whose use or in, whose name or on whose account the same was or were delivered or taken into the possession of such servant or clerk or other person so employed, although such money, goods, etc., was or were so taken or re- aeived into the possession of his or their servant, derk, or other person so employed. L Cited in Bazeley'» Case, 2 Leach C. C. 841 ; a. c. 2 Eaat^ P. C. notia. « [So Regina v. Gill, 6 Cox C. C. 295 (1854).J; 4!fi:AP, XXXVI.] REOllfA V. BOWEKS. 403 charged' him with having feloaioasly embBzzled several sums of money, the property of John Clarlt, by whom, it was alleged, he was employed as clerk and servant. The prisoner was employed by the prosecutor under an agreement dated May 9, 1864, of which the following is a copy : — Memorandum of agreement made and entered into this 9th day of May, 1864, between Samuel Bowers of the one part, and Robert Skirrow, John Clart, and John Quick, coal owners and merchants, of the other part, wit- nesseth that the said Samuel Bowers hereby agrees to become, and the said SkirrOw, Clark, and Quick agree to engage the said Samuel Bowers as their agent or traveller for the sale of coals, one guinea per week to be paid to the said Samuel Bowers as salary, and one shilling per ton to be paid as com- mission upon all coals sold by him when the prices realized are in accordance with the current prices delivered ; any dealers he may be the means of se- curing as customers to the wharf, sixpence per ton to be paid for such ser- vices ; two shillings and sixpence to be paid for cartage and delivery of coals. The said Samuel Bowers likewise agrees to collect all moneys in connection with his orders ; but the said Skirrow, Clark, and Quick will not hold him responsible for any bad debts that may he contracted, but expect him to be as cautious as practicable in securing good and solvent customers : Hhe before- mentioned Commission not td become due until- the money has been received by the said Skirrow, ClarK, and Quick. The said Samuel Bowers also agrees not to keep or retain in his possession moneys collected on behalf of the said Skirrow, Clark, and Quick more than one week from the date of receiving the same. The said Skirrow, Clark, and Quick agree to take the board and blinds now fitted up at the residence of the said Samuel Bowers at the cost price to him, on condition that they have free use, without charge, of that part of Ms residence now used as an office. It is mutually agreed that, should dissatisfaction arise on eitherside, a month's notice in writing must be given. In June, 1865, the prisoner was desirous of selling coals by retail on his own account, and the prosecutor consented to supply him with coals for that purpose, but then made an alteration in- the mode of remunerating him, which is specified in a letter, of which the following is a copy : — London, June 3, 1865. Mr. Samuel Boweks : Dear Sir, — As yon are now going' into the retail coal trade on your own account, we think it best to have a proper un- derstanding; and in future we pay you a commission only, — your salary will be stopped from this date. We find a very large amount standing against you, and we particularly request yon to do all you possibly can to get it in.. The writer will wait upon you on Wednesday at the usual time, and hopes you wiU have a large amount of money ready. Yours truly, Skirkow, Clark, & Quick. the' prisoner consented to the proposed alteration, and continued to obtain orders from various persons for coals, which were supplied by 404 CASES ON CKIMINAL LAW. [CHAP. XXXVI. the prosecutor, the invoices being made out in the name of the pros- ecutor's firm ; and in the three instances charged in this indictment such invoices were produced by the customers, who proved payment of the several amounts in such invoices to the prisoner, whose receipt was attached to each invoice. The prisoner did not account to the prosecutor for either amount. The manner of accounting was for the prosecutor to call on the prisoner weekly, who then paid him a sum of money on account of what he had received ; and once a month the prisoner attended at the prosecutor's office, when the names of the customers who had been supplied with coals were called over, and the prisoner stated whether they had paid, handing over in respect of the amounts he reported as having been paid the surplus bej'ond his weekly payments on account. He did not report that either of the sums in this indictment had been paid, but on the contrary repre- sented them as still due after he had received the money. The coals supplied for the purpose of his retail trade were charged to him as to other customers ; but this account was kept quite distinct from the account of the moneys received by the prisoner on the prosecutor's account. The sums alleged to have been embezzled were not received by the prisoner until after the second agreement had been made ; and at the prisoner's place of business a board was exhibited, describing him as agent to the prosecutor. It was contended that he was not a clerk or servant to the prosecutor within the meaning of the statute. I declined to stop the case, and the jury found the prisoner guilty. The question for the opinion of the Court is, whether the pris- oner, under the circumstances herein stated, was a clerk or servant to the prosecutor, so as to be liable to be convicted of the crime of embezzlement. Erle, C. J. We are all of opinion that this conviction must be quashed. The facts stated fall within the cases cited by Mr. Collins, which decide that a person who is employed to get orders and receive money, but who is at liberty to get those orders and receive that money where and when he thinks proper, is not a clerk or servant within the meaning of the statute. The construction of the documents decides this case. Under the first agreement the prisoner was a ser- vant ; but under the second he was at liberty to dispose of his time in the way he thought best, and to get or to abstain from getting orders on any particular day as he might choose ; and this state of things is inconsistent with the relation of master and servant. Conviction quashed. CHAP. XXXVI.] REGINA V. BAILEY, 406 EEGINA V. BAILEY, 12 Cox C. C. 56 [1871]. COURT OF CRIMINAL APPEAL. Case reserved for the decision of this Court. The prisoner was tried before me at the Michaelmas Quarter Sessions of the Peace, holden by adjournment at Sheffield, in and for the West Eiding of the County of York, on the 28th of November, 1870, upon an indictment which charged him with having feloniously embezzled several sums of money, the property of Joseph Hall and another, his masters. The prosecutors, the said Joseph Hall and Charles Hazlehurst Greaves, who carried on business in partnership in Sheffield as brewers and wine and spirit dealers, under the firm of William Greaves & Company, employed the prisoner from 1861 to 1866 as traveller and bookkeeper, at a weekly wage of 15s. The prisoner then left the pros- ecutors' service and took other employment. About three years after this the prisoner was again engaged by Messrs. Greaves & Company on a fresh agreement. The terms (which were not in writing) are stated in the evidence of Joseph Hall to have been as follows : — The prisoner was employed as traveller to solicit orders for, and to collect the moneys due on the execution of such orders by, the firm, and to paj- over to the said Joseph Hall, or to Charles Haslehurst Greaves, or to the clerk at the brewery in Sheflield, the total net amount of the moneys so collected by the prisoner on the evening of the day when such moneys were so received b}' him, or on the day following, in case the prisoner should then be travelling at a distance from the brewery. In case the prisoner had neither received money nor ob- tained orders, he was not expected to go to the brewery that day, but when he came there it was his duty to enter in the cash book of the firm the name and address of the customer from whom he had received any money, the amount, the date of the receipt, and the discount al- lowed (if anj') to the customer, and to pay over to the firm the net amount of the money received by him, the discount being deducted. Every three months the prisoner had an account given to him of the various sums then owing by the customers to the firm, and it was the prisoner's duty to deliver these accounts and apply for payment from the customers on presenting them. In case such accounts were not paid, the firm enforced payment thereof. The prisoner had no authority 406 CASES ON CRIMINAL LAW. £CHAP. XXXVI. to retain in his hands moneys belonging to the firm. He had to travel in the town of Sheffield and neighborhood. His district comprised about six miles round SbefBeld jsind included the town of Rotherham. He was to be exclusively in the employment of the firm, to whom he was to give the whole of his time, — the whole of every day. The pris- oner had no salary, but was paid by a commission of five per cent, on all orders for goods he obtained for the firm, and an additional five per cent, on the amount of cash collected by him on payment by the custo- mers for the goods supplied by the firm on such orders. The firm were to pay to the prisoner his commission every week, but this wate not al- ways done with regularity, and the prisoner was not alwaj's regular in his attendance at the brewery, and, although the firm complained -of his irregularitj', they did not discharge him. It was further stated by Joseph Hall on cross-examination that the prisoner could get orders when and where he pleased within his district, and that he had to collect money as soon as he could, and as he chose. His duty was to go to both old and new customers of the firm, and to collect money when and where he thought proper ; he was not bound by particular orders ; he was at liberty to dispose of his time as he pleased, but he was to employ the whole of it in the service of the firm. It was proved and admitted by the prisoner on the 21st of October that he had retained in his hands, and had not accounted for, several sums of money which he had received from the firm by virtue of the before-mentioned emploj'ment ; the three sums charged in the indict- ment had been received by the prisoner on the 26th of May, the 1st of June, and 26th of August respectively. During the course of the ease the counsel for the prisoner called my attention to Regina v. Bowers, L. Rep. 1 C. C. R. 45 ; 10 Cox C. C. 250, and at the close of the case for the prosecution it was con- tended that the prisoner was not a clerk or servant to the prosecutors within the meaning of the Stat. 24 & 25 Vict. c. 96. I declined to stop the case, and directed the jury to decide whether the prisoner had been proved by the evidence of Joseph Hall to be a servant to the prosecutors or not. The jury found the prisoner guilty, judgment being respited until the , opinion of the Court of Criminal Appeal is pronounced upon the above objection, and defendant is on bail. The question for the opinion of this Honorable Court is, whether the prisoner, under the circumstances herein stated, was a clerk or servant to the prosecutors, so as to be liable to be convicted of the crime of embezzlement. Walter Spencer Stanhope, Chairman. CHAP. XXXVI.] COMMONWEALTH V, HAYS. 407 Forbes, for the prosecution. The conviction was right. This case is distinguishable from Regina v. Bowers, where the prisoner was paid by commission and was at liberty to get orders or not, as he pleased, for in the present case the prisoner was bound to devote the whole of his time to the prosecutors' service. In Regina v. Turner (11 Cox C. C. 551) it was held by Lush, J., that a traveller who was bound to " diligently employ himself in going from town to town in England, Ireland, and Scotland, and soliciting orders for the prosecutor, and who was not without the prosecutor's written consent to take or execute any order for vending or disposing of similar goods to the prosecutors for or on account of himself or any other person, and who was to be paid by commission, and to render weekly accounts," was a clerk or servant within the 24 & 25 Vict. c. 96, § 68. [Bkamwell, B. The effect of the agreement here is that the prisoner was not to be told how he was to work, but still he was to work. Blackburn, J. He was a servant to do this kind of work, but might use his own discretion as to the way of doing it.] In Bowers's case it was optional with the prisoner whether he got any orders at all. [Bovill, C. J., referred to Regina V. Tite, L. & C. 13 ; 8 Cox C. C. 458. A traveller paid by commis- sion and employed to get orders and to receive pa3'ments was held to be a clerk or servant, although he was at liberty to receive orders for other persons also. In this case the prisoner was bound to devote the whole of his time to the prosecutors.] Bovill, C. J. The evidence in this case clearly showed that the prisoner was a clerk or servant within the statute. There is nothing in the evidence inconsistent with that relation. Regina v. Tite conclu- sively shows that the prisoner was a clerk or servant. The conviction will be affirmed. The rest of the Court concurred. Conmiction affirmed. COMMONWEALTH u. HAYS, 14 Gray, 62 [1858]. Indictment on St. 1857, c. 233.* The indictment contained two counts, one for embezzlement, and one for simple larceny. At the trial, . . . Amos Stone . . . testified as follows : " I am treasurer of the Charlestown Five Cent Savings Bank. . . . The defendant came into * ["If any person, to whom any money, goods, or other property, which may be the subject of larceny, shall have been delivered, shall embezzle or fraudulently con- vert to his own use, or shall secrete with intent to embezzle or fraudulently convert to his own use, such money, goods, or property, or any part thereof, he shall be deemed, by so doing, to have committed the crime of simple larceny."] 408 CASES ON CRIMINAL LAW. [CHAP. XXXVI. the bank, and asked to draw his deposit. ... I took his book, balanced it, and handed it back to him. It was for one hundred and thirty dollars in one item. I then counted out to him two hundred and thirty dollars, and said, ' There are two hundred and thirty dollars.' The defendant took the money to the end of the counter and counted it, and then left the room. Soon after the defendant had left, I discovered that I had paid him one hundred dollars too much. After the close of bank hours I went in search of the defendant, and told him that I had paid him one hundred dollars too much, and asked him to adjust the matter. ... I said to him, ' I can prove that you got two hundred and thirty dol- lars.' He replied . . . ' If you can prove it , you will get it ; otherwise, you won't.' I intended to pay the defendant the sum of two hundred and thirty dollars, and did so pay him. I then supposed that the book called for two hundred and thirty dollars. . . . The defendant asked the Court to instruct the jury that the above facts did not establish such a delivery or embezzlement as subjected the defendant tcf a prosecution under the St. of 1857, c. 233, and did not constitute the crime of larceny. The Court refused so to instruct the jury, and instructed them " that if the sum of two hundred and thirty dollars was so delivered to the defendant, as testified, and one hundred dollars, parcel of the same, was so delivered by mistake of the treasurer, as testified, and the defendant knew that it was so delivered by mistake, and knew he was not entitled to it, and afterwards the monej' so delivered by mistake was demanded of him by the treasurer, and the defendant, having such knowledge, did fraudulently, and with a felonious intent to de- prive the bank of the monej', convert the same to his own use, he would be liable under this indictment." The jury returned a verdict of guilty, and the defendant alleged exceptions. BiGELOW, J. The statute under which this indictment is found is certainly expressed in very general terms, which leave room for doubt as to its true construction. But interpreting its language according to the subject-matter to which it relates, and in the light of the existing state of the law, which the statute was intended to alter and enlarge, we think its true meaning can be readily ascertained. The statutes relating to embezzlement, both in this country and in England, had their origin in a design to supply a defect which was found to exist in the criminal law. By reason of nice and subtle dis- tinctions which the courts of law had recognized and sanctioned, it was difficult to reach and punish the fraudulent taking and appropri- ation of money and chattels by persons exercising certain trades and occupations, by virtue of which they held a relation of confidence or trust toward their employers or principals, and thereby became pos- CHAP. XXXTI.] COMMONWEALTH V. HAYS.. 409 sessed of their property. In such cases the moral guilt was the same as if the offender had been guilty of an actual felonious taking ; but in many cases he could not be convicted of larceny, because the property which had been fraudulently converted was lawfully in his possession by virtue of his employment, and there was not that technical taking or asportation which is essential to the proof of the crime of larceny. The King v. Bazeley, 2 Leach (4th ed.), 835 ; 2 East P. C. 568. The statutes relating to embezzlement were intended to embrace this class of offences ; and it may be said generally that they do not apply to cases where the element of a breach of trust or confidence in the fraudulent conversion of money or chattels is not shown to exist. This is the distinguishing feature of the provisions in the Rev. Sts. c. 126, §§ 27-30, creating and punishing the crime of embezzle- ment, which carefully enumerate the classes of persons that may be subject to the penalties therein provided. Those provisions have been strictly construed, and the operation of the statute has bee& carefully confined to persons having in their possession, by virtue of their occu- pation or employment, the money or property of another, which has been fraudulently converted in violation of a trust reposed in them. Commonwealth v. Stearns, 2 Met. 343 ; Commonwealth v. Libbey, 11 Met. 64 ; Commonwealth v. Williams, 3 Gray, 461. In the last named case it was held, that a person was not guilty of embezzlement, under Rev. Sts. c. 126, § 30, who had converted to his own use money which had been delivered to him by another for safe keeping. The St. of 1857, c. 233, was probably enacted to supply the defect which was shown to exist in the criminal law by this decision, and was intended to embrace cases where property had been designedly delivered to a person as a bailee or keeper, and had been fraudulently converted by him. But in this class of cases there exists the ele- ment of a trust or confidence reposed in a person by reason of the delivery of property to him, which he voluntarilj' takes for safe keep- ing, and which trust or confidence he has violated by the wrongful conversion of the property. Beyond this the statute was not intended to go. "Where money paid or property delivered through mistake has been misappropriated or converted by the party receiving it, there is no breach of a trust or violation of a confidence intentionally reposed by one party and voluntarily assumed by the other. The moral tur- pitude is therefore not so great as in those cases usually compre- hended within the offence of embezzlement, and we cannot think that the legislature intended to place them on the same footing. We are therefore of opinion that the facts proved in this case did not bring it within the statute, and that the defendant was wrongly convicted. Exceptions sustained. 410 CASES ON CEIMINAL LAW. [CHAP. XXXVII^ CHAPTER XXXVII. Cheating by False Pebtences.^ Section 1. Obtaining of Title : Inoperative Intent to Pass Title. EEX V. ADAMS, Euss. & Ry. 225 [1812]. The prisoner was tried before Mr. Justice Chambre, at the Lent Assizes held at Taunton, in the year 1812, for a grand larceny in steal- ing a hat, stated in one count to be the property of Robert Beer and in another count to be the property of John Paul. The substance of the evidence was, that the prisoner bought aliat cS Eobert Beer, a hat maker at Ilminster. That on the 18th of January he called for it, and was told it would be got ready for him in half an hour, but he could not have it without paying for it. While he remained with Beer, Beer showed him a hat which he had made for one John Paul ; the prisoner said be lived next door to'him, and asked when Paul was to come for his hat, and was told he was to come that afternoon in half an hour or an hour. He then went away, saying he would send his brother's wife for his own hat. Soon after he went he met a boy to whom he was not Tjnown. The prisoner asked the boy if he was going to Ilminster, and being told that he was goii^g thither, he asked him if he knew Robert Beer there, telling him that John Paul had sent bim to Beer's for his hat, but added that as he the prisoner owed Beer for a hat which he had not money to pay for, he did not like to go himself, and therefore desired the boy (promising him something for his trouble) to take the message from Paul and bring Paul's hat to him the prisoner 5 he also told him that Paul himself, whom he described by his person and a peculiarity of dress, might perhaps be at Beer's, and if he was the boy was not to go in. The prisoner accompanied him part of the way, and then the boy proceeded to Beer's, where he delivered his message and received the 1 [As to cheats at common law, see Commonwealth v. Warren, above, p. 11 ; Rex V. Bryan, 2 Strange 866 ; Rex v. Lara, 2 Leach C. C 652 ; Eegina u. CI088, Dears. & B. 460; 7 Cox G. C. 494; Koscoe Grim. Evid., " Cheating."] SECT. II.] KEGINA V. KILHAM. 41J hat, and after carrying it part of the way for the prisoner by his desire, the prisoner received it from him, saying he would take it himself to Paul. The fraud was discovered on Paul's calling for his hat at Beer's, about half an hour after the boy had left the place ; and the prisoner was found with the hat in his possession and apprehended. From these and other circumstances, the falsity of the prisoner's representation and his fraudulent purpose were sufficiently' established ; but it was objected on the part of the prisoner that the offence was not larceny, and that the indictment should have been upon the statute for obtaining goods by false pretences. The prisoner was convicted, but the learned judge forbore to pass sentence, reserving the question for the opinion of the judges. In Easter term, 25th of April, 1812, all the Judges were present (except Lord Ellenborocgh, Mansfield, C. J., and Lawrence, J.), when they held that the conviction was wrong ; that it was not larceny, but obtaining goods under a false pretence.^ Section 2, Obtaining of Title: not mere Custodt. EEGINA V. KILHAM, L. E. 1 C. C. E. 261 [1870]. CKOWN CASE RESERVED. Case stated by the Recorder of York. Indictment upder 24 & 25 Vict. c. 96, § 88, for obtaining goods by felse pretences. The prisoner was tried at the last Easter Quarter Sessions for York. The prisoner, on the 19th of March last, called at the livery stables of Messrs. Thackray, who let out horses for hire, and stated that he was sent by a Mr. Gibson Hartley to order a horse to be ready the next morn- ing for the use of a son of Mr. Gibson Hartley, who was a customer of the Messrs. Thackray. Accordingly, the next morning the prisoner called for the horse, which was delivered to him by the hostler. The prisoner was seen, in the course of the same day, driving the horse, which he returned to Messrs. Thackray's stables in the evening. The hire for the horse, amounting to 7s., was never paid by the prisoner. 1 [For a case quite similar to Bex v. Adams, see Commonwealth v. Jeffries, 7 AUen, 548, in which the point of a lack of jneeting of winds was not taken by the defence.] 412 CASES ON CRIMINAL LAW. [CHAP. XXXVIL The prisoner was found guilty. The question was, whether the prisoner could properly be found guilty of obtaining a chattel by false pretences within the meaning of 24 & 25 Vict. c. 96, § 88.1 The case of Regina v. Boulton was relied on on the part of the prosecution. The case was argued before Bovill, 0. J., "Willes, Byles, and Hannen, JJ., and Cleasbt, B. May 7. No counsel appeared for the prisoner. Bovill, C. J. We are of opinion that the conviction in this case cannot be supported. The Stat. 24 & 25 Vict. c. 96, § 88, enacts that, "whosoever shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to defraud, shall be guilty of misdemeanor." The word " obtain" in this section does not mean obtain the loan of, but obtain the property in, any chattel, etc. This is, to some extent, indicated by the proviso, that if it be proved that the person indicted obtained the property in such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted ; but it is made more clear by referring to the earlier statute from which the language of § 88 is adopted. 7 & 8 Geo. IV. c. 29, § 53, recites that " a failure of justice frequently arises from the subtle distinction between ' larceny and fraud,' " and for remedy thereof enacts that " if any person shall, by any false pretence, obtain," etc. The subtle distinction which the statute was intended to remedy was this : That if a person by fraud induced another to part with the possession only of goods and converted them to his own use, this was larceny ; -v^hile if he induced another by fraud to part with the property in the goods as well as the possession, this was not larceny. But to constitute an obtaining by false pretences it is equally essen- tial, as in larceny, that there shall be an intention to deprive the owner wholly of his property, and this intention did not exist in the case before us^ In support of the conviction the case of Regina v. Boulton was referred to. There the prisoner was indicted for obtaining by false pretences a railway ticket with intent to defraud the company. It was held that the prisoner was rightly convicted, though the ticket had to be given up at the end of the journey. The reasons for this decision do not very clearly appear, but it may be distinguished from the present case in this respect, — that the prisoner, by using the ticket for the pur- pose of travelling on the railway, entirely converted it to his own use 1 24 & 25 Vict. c. 96, § 88, enacts that, " Whosoever shall, by any false pretence, obtain from any other person any chattel, money, or yaluable security, with intent to defraud, shall be guilty of a misdemeanor." SECT. II.] EBGINA V. BOULTON. 413 for the only purpose for which it was capable of being applied. In this case the prisoner never intended to deprive the prosecutor of the horse or the property in it, or to appropriate it to himself, but only intended to obtain the use of the horse for a limited time. The conviction must therefore be quashed. Conviction quashed. EEGINA V. BOULTON, 1 Dek. C. C. 508 [1849]. CEOWN CASE RESERVED. The prisoner was convicted at the Yorkshire summer Assizes, 1849, before Mr. Justice Wightman, upon the sixth count of an indictment charging him with obtaining, by false pretences, from a servant of the Lancashire and Yorkshire Eailway Company, a railway ticket of the company, for a journey from Bradford to Huddersfield, by one of their trains. The count was as follows : — " And the jurors aforesaid, upon their oath aforesaid, do further present that the said John Boulton, afterwards, to wit, on the 11th day of April, in the year aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to one Charles Turner, he the said Charles Turner being then and there a servant of the said Lancashire and Yorkshire Railway Company, that a certain ticket which he the said John Boulton then and there delivered to the said Charles Turner, was then and there a genuine ticket of the said company, before then obtained by him the said John Boulton from the said company, for the conveyance of him the said John Boulton, as a passenger, in and by certain carriages of the said company, from the said town of Bradford to Hud- dersfield aforesaid, on the said 11th day of April, by means of which last- mentioned false pretence the said John Boulton did then and there unlawfully obtain from the said Lancashire and Yorkshire Eailway Company a certain chattel, to wit, a printed ticket of the said company, authorizing the bearer thereof to be thereafter conveyed, without further charge or payment in that behalf, by certain carriages of the said company, on the said 11th day of April, from the said town of Bradford to Huddersfield aforesaid, the said last-mentioned ticket being then and there the goods and chattels of the said Lancashire and Yorkshire Railway Company, and of the value of , with intent thereby then and there to cheat and defraud the said Lancashire and Yorkshire Railway Company of the same. Whereas, in truth and in fact, the said ticket so delivered as last aforesaid by the said John Boulton was then and there not a genuine ticket of or obtained from the said company, 414' CASES 02Sr CEIMIKAL LA-W. [CHAP. XXXVII. for the conveyance of any person as a passenger by atiy carriage of the said company, or any journey whatsoever, to the great damage and deception of the said company, to the evil example of all others in the like case offending against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity."' The ticket of the company is in the annexed fonn : — Express Train BRADFORD ^ to S? ^ HUDDERSFIELD. 23. 1st Class 23. And is a voucher for the journey virithoiit further payment,, but is to be given up to the company at the journey's end. The prisoner was stopped upon the line before he finished his journey and was taken into custody with the ticket in his possession. The question reserved by the • learned judge was, whether the ob- taining such a ticket was obtaining a chattel of the company, with intent to cheat and defraud the company of the same, within the meaning of the Act of Parliament. Ou 20th November, 1849, this case was considered by Pollock, C. B., Patteson, J., WiGHTMAN, J., Platt, B., Talfoukd, J. The Chief Baron said that the Judges were unanimously of opinion, that it came within the Stat. 7 & 8 George IV.^ c. 29,. § 53, which makes it criminal to obtain a chattel by a false pretence. The ticket, while in the hands of the pa;rty using" it, was an article of value, entitling him to travel without further payment ; and the fact that it' was to be returned at the end of the journey did not affect the question. The conviction was therefore affirmed. Section 3. Obtaining of TrtLE: Cases op Paktneeship. EEGINA U.WATSON, 7 Cox C. C. 364 ; Dears. & B. 348. REGINA V. EVANS, 9 Cox C. C. 238. SECT. VIIErJ REGIlirA V. HTJNTER. 416 Section 4. Pretence — not Mere Promise or Assurance. REGINA w.WALNE, 11 Cox C. C. 647. Section 5. Pretence of Fact Coupled with Promise. REGINA V. JENNISON, 9 Cox C. C. 148. Section 6. Pretence of Fact: Intent as a Fact. REGINA V. JONES, 6 Cox G; C. 467. REX V. YOUNG, 1 Leach C. C. 505. Section 7. The Pretence : Credibility. • REGINA V. LAWRENCE, , 36 L. T. 404. REGINA V. PARKER, 7 C. & P. 825 ; 2 Moody C. C. 1. Section 8. The Pretence : Other Cases. REX V. BARNARD, 7 C. & P. 784. REGINA V. BULL,^ 15 Cox C. C. 608. REGINA V. HUNTER, 10 Cox C. C. 642. 416 CASES ON CEIMINAL LAW. [CHAP. XXXVII. EEGINA V. RANDELL, 16 Cox C. C. 335. REGINA V. SAMPSON, 52 L. T. E. (N. S.) 772. Section 9. Continuing Pbetence. REGINA V. MARTIN, L. R. 1 C. C. R. 56 ; 10 Cox C. C. 383. Section 10. Remoteness op Pbetence. REGINA V. LARNER, 14 Cox C. C. 497. COMMONWEALTH v. HARKINS,* 128 Mass. 79. Section 11. Intention to Refund. REGINA V. NAYLOR, 10 Cox C. C. 149. Section 12. Limitation to Subjects of Common-Law Laecent. REGINA V. ROBINSON, / Bell C. C. 34. Section 13. Statutory Revesting of Title upon Conviction. BENTLEY v. VILMONT, L. R. 12 App. Cas. 471. 1 [See Regina v. Taylor, 15 Cox C. C. 266. Same v. Same, id. 268.] CHAP. XXXVIII.] KEGINA V. DOLAN. 41T CHAPTER XXXVm. Receiving Stolen Goods. Section 1. Limitation to Goods Tbchnicallt " Stolen." REGINA V. KENNY, 2 Q. B. D. 307 ; 13 Cox C. C. 397 [1877]. above, p. 359. Section 2. Whether Goods Stolen Goods or not at time of Receiving. REGINA V. DOLAN, 1 Dears. C. C. 436 ; 6 Cox C. C. 449 [1855]. COURT OF CRIMINAL APPEAL. The following case was stated by M. D. Hill, Esq., Q. C, Recorder of Birmingham : — At the Sessions held in Birmingham, on the 5th day of January, 1855, William Rogers was indicted for stealing, and Thomas Dolan for receiving, certain brass castings, the goods of John Turner. Rogers pleaded guilty and Dolan was found guilty. It was proved that the goods were found in the pockets of the pris- oner Rogers by Turner, who then sent for a policeman, who took the goods and wrapped them in a handkerchief. Turner, the prisoner Rogei-s, and the policeman going toward Dolan's shop. When they came near it the policeman gave the prisoner Rogers the goods, and the latter was then sent by Turner to sell them where he had sold others ; and Rogers then went into Dolan's shop and sold them and gave the money to John Turner as the proceeds of the sale. Upon these facts it was contended on the part of Dolan that Turner had resumed the possession of the goods, and that Rogers sold them to Dolan as the agent of Turner, and that consequently at the time they were received by Dolan, they were not stolen goods within the meaning of the statute. 27 418 OASES ON CRIMINAL LAW. [CHAP. XXXVIII. I told the jury, upon the authority of the case of Regina v. Lyons and another, Car. & M. 217, cited by the counsel for the prosecution, that the prisoner was liable to be convicted of receiving, and the juiy found him guilty. Upon this finding I request the opinion of the Court of Appeal in Criminal Cases on the validity of Dolan's conviction. Dolan has been sent back to prison, and I respited judgment on the conviction against him until the judgment of the court above shall have been given. O'Brien for the prisoner. This conviction cannot be sustained. The objection is, that when the goods reached the hands of Dolan they were not stolen goods. They had been restored to the possession of the owner, and the sale to the prisoner was with the owner's authority. Lord Campbell, C. J. There seems to be great weight in that objection but for the authority of the case cited. It can hardly be supposed that if goods were stolen seven years ago, and had been in the possession of the owner again for a considerable period, there could be a felonious receipt of them without a fresh stealing. O'Brien. That was the view taken by the learned recorder ; and R. V. Lyons, Car. & M. 217, which was cited for the prosecution, does not appear to have been a case much considered. Coleridge, J., in that case, said, that for the purposes of the day, he should consider the evidence as suflScient in point of law to sustain the indictment, but would take a note of the objection. Coleridge, J. I certainly do not think so to-day. O'Brien. There is also a slight circumstance of distinction between that case and the present. It does not appear in that case that the stolen property was ever actually restored to the hands of the owner, nor that he expressly directed the thief to take it to the prisoner. {JSe was stopped.) Seasley for the prosecution. R. v. Lyons is expressly in point, and the learned judge who decided it does appear to have had his attention recalled to the point after the conviction, and still, upon deliberation, to have thought there was nothing in the objection. The facts are thus stated in the marginal note : " A lad stole a brass weight from his master, and after it had been taken from him in his master's presence it was restored to him again with his master's consent in order that he might sell it to a man to whom he had been in the habit of selling sim- ilar articles which he had stolen before. The lad did sell it to the man ; and the man being indicted for receiving it of an evil-disposed person, well knowing it to have been stolen, was convicted and sen- tenced to be transported seven years." The report adds that after the sentence, " the matter was subsequently called to his Lordship's SECT. II.] EEGINA V. DOLAN. 419 attention by the prisoner's counsel, yet no alteration was made in the judgment of the court ; from which it is to be inferred that, upon con- sideration, his Lordship did not think that in point of law the objection ought to prevail." The present is, however, a stronger case than that ; because here in truth the master did not recover possession of the stolen goods. They were in the hands of the police ; and what the master did must be considered as done under the authority of the police. Lord Campbell, C. J. No ; the policeman was the master's agent. Platt, B. And the sale was bj' direction of the master. Beasley. The statute does not require that the receipt should be directly from the thief. It only requires that the prisoner should receive stolen goods, knowing them to have been stolen ; and that is proved in this case. In many cases it has been held that where the owner of property has become acquainted with a plan for robbing him, his consent to the plan being carried out does not furnish a defence to the robbers. R. v. Egginton, 2 R & P. 508. Lord Campbell, C. J. But to constitute a felonious receiving, the receiver must know that at that time the property bore the character of stolen propertj'. Can it be said that, at any distance of time, goods which had once been stolen would continue to be stolen goods for the purpose of an indictment for receiving, although in the mean time they may have been in the owner's possession for years ? Ckessvtell, J. The answer to that in this case seems to be that the policeman neither restored the property nor the possession to the master ; that the goods were in the custody of the law ; and that the master's presence made no difference in that respect. Beasley. That is the argument for the prosecution ; and it is man- ifest that if the policeman had dissented from the plan of sending Eogers to Dolan's shop, the master could not have insisted upon the policeman giving up the property to him. Lord Campbell, C. J. I feel strongly that this conviction is wrong. I do not see how it can be supported, unless it could be laid down that, if at anj- period in the history of a chattel once stolen, though afterwards restored to the possession of the owner, it should be re- ceived by any one with a knowledge that it had been stolen, an offence would be committed within the statute. I think that that would not be an offence within the statute any more than it would make the receiver an accessary to the felony at common law. If the article is restored to the owner of it, and he, having it in his possession, after- wards bails it to another for a particular purpose of delivering it to a third person, and that third person receives it from that bailee, I do not see how it can, under these circumstances, be feloniously received from that bailee. Then what are the facts here? [His Lordship 420 CASES ON CEIMINAL LAW. [CHAP. XXXVm. stated the facts as above.] Turner, the owner, therefore h&d, I think as much possession of the goods as if he had taken them into his own hands, and with his own hands delivered them to another person for a particular purpose, which was performed. He was, subsequent to the theft, the bailor and the other person was the bailee of the goods. Then they were carried to the prisoner by the authoritj' of the owner ; and 1 cannot think that under those circumstances there was a re- ceiving within the statute. As to the case cited, I cannot help thinking that the facts cannot be quite accuratelj' stated, and that there was something more in that case than appears in the report ; but if not, I am bound to say that I do not agree in that decision. CoLBRroGE, J. I have no recollection of the case cited, and I have no right, therefore, to say that it is not accurately reported; but, assuming it to be so, I am bound to say that I think I made a great mistake there. What is the case ? If for a moment the inteiference of the policeman is put out of the question, the facts are, that the goods which had been stolen were restored to the possession of the real owner and were under his control, and having been so restored, they were put again into the possession of Kogers for a specific pur- pose, which he fulfilled. It seems then to me that when, the second time, they reached the hands of Rogers, they had no longer the char- acter of stolen goods. Then, if that would be the case, supposing the policeman to be out of the question, does the interference of the poUce- man according to the facts here stated make any diflTerence ? I think not. It is the master who finds the goods and sends for a policeman ; and it is by the authority of the master that the policeman takes and keeps the goods, and afterwards hands them back to Rogers. Indeed, it seems to me that all that was done was done by Turner's authority ; and that it must be considered that the property was under the control of the real owner when he sent Rogers with them to the prisoner. In this state of facts, the interference of the policeman seems to me of no importance. Cresswell, J. I do not dissent from the decision that this con- viction is wrong; but as we are called upon in this court to give the reasons of our judgment, I must say that I cannot concur in all the reasons which I have heard given in this case. If it had been neces- sary to hold that a policeman, by taking the stolen goods from the pocket of the thief, restores the possession to the owner, I should dis- sent. I think that we cannot put out of question the interference of the policeman ; and that while the goods were in his hands they were in the custody of the law ; and that the owner could not have de- manded them from the policeman or maintained trover for them. But as the case finds that the policeman gave them back to Rogers, and SECT. II.] EEGLNA V. SCHMIDT. 421 then the owner desired him to go and sell them to Dolan, I think that Rogers was employed as an agent of the owner in selling them, and that consequently Dolan did not feloniously receive stolen goods. Plait, B. I am of the same opinion. The case is, that the stolen goods were found by the owner in the pocket of the thief. They were restored to his possession, and it does not appear to me very material whether that was done by his own hands or by the instrumentality of the policeman. Things being in that state, it seems to have come into their heads that they might catch the receiver ; and it was sup- posed that by putting the stolen property back into the custody of Eogers, they could place all parties statu quo they were when the property was found in the pocket of Eogers ; but I agree with the rest of the court that the act of Parliament does not applj' to a case of this kind ; for if it did, I see no reason why it should not equally apply to restored goods stolen ten years ago. Williams, J. The reason why I think the conviction wrong is, that the receipt, to come within the statute, must be a receipt without the authority of the owner. Looking at the mere words of the indictment, every averment is proved by this evidence ; but then the question is, whether such a receipt was proved as is within the statute, namely, a receipt without the owner's authority ; and here Rogers was employed by the owner to sell to Dolan. Conviction qumshed. REGINA V. SCHMIDT, L. R. 1 C. C. R. 15 j 10 Cox C. C. 172 [1866]. COURT OF CRIMINAL APPEAL. Case reserved for the opinion of this Court by the deputy-chair- man of the Quarter Sessions for the western division of the County of Sussex. John Daniels, John Scott, John Townsend, and Henry White were indicted for having stolen a carpet-bag and divers other articles, the property of the London, Brighton, and South Coast Railway Com- pany ; and the prisoner, Fanny Schmidt, for having feloniously re- ceived a portion of the same articles, well knowing the same to have been stolen. The evidence adduced before me as deputy-chairman of the Court of Quarter Sessions at Chichester, for the western division of the County of Sussex, on the 20th October, 1865, so far as relates to the 422 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. question I have to submit to the Court of Criminal Appeal, was as follows : — On the 29th July, 1865, two passengers by the prosecutors' line of railway left a quantity of luggage at the Arundel station, which luggage was shortly afterwards stolen therefrom. On the 30th July a bundle containing a portion of the stolen prop- erty was taken to the Angmering station, on the same line of railway, hy the prisoner Townsend, and forwarded by him to the female pris- oner, addressed " Mr. F. Schmidt, Waterloo Street, Hove, Brighton." The bundle was transmitted to Brighton, in the usual course, on Sunday morning, the 30th. Meanwhile the theft had been discovered, and shortly after the bundle had reached the Brighton station, a policeman (Carpenter) attached to the railway company, opened it, and having satisfied him- self that it contained a portion of the property stolen from the Arundel station, tied it up again, and directed a porter (Dunstall) in whose charge it was, not to part with it without further orders. About 8 p. M. of the same day (Sunday, 30th), the prisoner John Scott went to the station at Brighton and asked the porter (Dunstall) if he had got a parcel from the Angmering station in the name of Schmidt, Waterloo Street. Dunstall replied, "No." Scott then said, "It is wrapped up in a silk handkerchief, and is directed wrong ; it ought to have been directed to 22 Cross Street, Waterloo Street." Dunstall, in his evidence, added, "I knew the parcel was at the station, but I did not say so because I had received particular orders about it." The four male prisoners were apprehended the same evening in Brighton on the charge, for which they were tried before me and convicted. On Monday morning, the 31st July, the porter (Dunstall), by the direction of the policeman (Carpenter), took the bundle to the house No. 22 Cross Street, Waterloo Street, occupied as a lodging-house and beer-house bj- the female prisoner and her husband (who was not at home or did not appear) , and asked if her name was Schmidt, on ascertaining which he left the bundle with her and went away. Car- penter and another policeman then went to the house, found the bundle unopened, and took the prisoner to the town hall. All the prisoners were found guilty, and I sentenced each of them to six months' imprisonment with hard labor. They are now in Petworth jail in pursuance of that sentence. At the request of the counsel for the female prisoner I consented to reserve for the opinion of this Court the question, Whether the goods alleged to have been received by her had not, SECT. II.] EEGINA V. SCHMIDT. 423 under the circumstances stated, lost their character of stolen property, so that she ought not to have been convicted of receiving them with a guilty knowledge within the statute. Haslee Hollist. Pearce ( Willoughby with him) for the prisoner. The conviction is wrong. To support a conviction for receiving stolen goods, it must appear that the receipt was without the owner's authority. In this case, in consequence of the conduct of the railway company, the property had lost its character of stolen property at the time it was delivered at the receiver's house by the railway porter. The property- is laid in the indictment as the property of the railway company, and- Carpenter was not an ordinary policeman, but, as the case states, a policeman attached to the railway companj-. He opens the bundle, and finding therein some of the stolen property, he gives it to Dun- stall and orders it to be detained until further orders, and in the meantime the thieves were arrested ; Carpenter then directs Dunstall to take the bundle to the receiver's house, so that the receiver got the stolen property from the railway company, who alone on this indict- ment are to be regarded as the owners of the property. The railway company, the owners, having got their property back, make what must be considered a voluntary delivery of it to the receiver. The case is similar to Regina v. Dolan, 6 Cox C. C. 449 ; 1 Dears. C. C. 436, where, stolen goods being found in the pockets of the thief by the owner, who sent for a policeman, and then, to trap the receiver, the goods were given to the thief to take them to the receiver's, which he did, and the receiver was afterwards arrested, it was held that the receiver was not guilty of feloniously receiving stolen goods, inasmuch as they were delivered to him under the authority of the owner. In that case Regina v. Lyons, Car. & M. 217, was expresslj' overruled. Lord Campbell, C. J., said, in Regina w. Dolan, "If an article once stolen has been restored to the owner, and he having had it fully in his possession, bails it for any particular purpose, how can any person who receives the article from the bailee be said to be guilty of receiving stolen goods within the meaning of the Act of Parliament ? " Hurst, for the prosecution. Unless this case is distinguishable from Regina «. Dolan, the conviction, it must be conceded, is wrong. But the facts of this case are more like the view taken by Cresswell, J., in Regina v. Dolan, "That while the goods were in the hands of the policeman, they were in the custody of the law ; and the owner could not have demanded them from the policeman, or maintained trover for them." In that case the real owner intervened, and had manual possession of the stolen goods ; here he does not The goods 424 CASES ON CEIMINAL LAW. [CHAP. XXXVIII. belonged to the railway passenger and the company are only bailees. [Melloe, J. The policeman merely opened the bundle in the course of its transit to see what was in it, and then sent it according to its direction. It was in the hands of the policeman, not of the company. Eele, C. J. Suppose a laborer steals wheat, and he sends it by a boy to his accomplice, and the policeman stops the boy, ascertains what he has got, then tells him to go on, and follows and apprehends the ac- complice, is not the accomplice guilty of feloniously receiving? Mel- LOR, J. Here the policeman does nothing to alter the destination of the bundle. The element of the real owner dealing with the stolen property is wanting in this case. Keating, J. Scott directs the address to be changed.] The bundle was sent by the thieves through the railway company to the receivers ; the real owner had nothing to do with this part of the transaction. [Lush, J. If the true owner had sued the company for the property, the company could not have justified detaining or converting it.] If a policeman knows of stolen goods being in the hands of an innocent agent, and does not take possession for the owner, and the innocent agent, by the policeman's directions, delivers them to a receiver, that does not prevent the receiver being guilty of feloniously receiving. fearce, in reply. Before the bundle was sent out for delivery the thieves were in custody, and having secured them. Carpenter then gives orders for the bundle to be delivered to the receiver. Carpenter was the servant of the railway company, who are the owners for the purpose of this indictment, and the delivery therefore was by the owners. [Eele, C. J., and Mellor, J., were of opinion that the conviction was right, but Martin, B., Keating, and Lush, JJ., held the conviction wrong. In consequence of the prisoner having suflfered half the term of imprisonment from inability to get bail and the further unavoidable delay, the case was not sent to be argued before all the judges.] Maetin, B. I think that this conviction was wrong on two grounds, the one substantial, the other formal. I think that Mr, Fearers argu- ment, founded on the indictment, that the property is there laid to be property of the railway company, is well founded ; and it seems to me that Dolan's case applies to this. Erle, C. J. I am of opinion that the conviction was right. The question is whether, at the time this stolen property was received by the prisoner, it was the property of the London and Brighton Railway Company ; and if so whether, when the policeman Carpenter caused the delivery to be stopped for the purpose of detecting the parties implicated, it therebj' lost the character of stolen property. If it had lost the character of stolen property at the time it was received by the SECT, n.] EEQINA V. SCHMIDT. 425 prisoner, the receiving by her will not anaount to felony. But in this case I think that the railway company, when they took this bundle into their possession, were acting as bailees of the thief, and were innocent agents in forwarding it to the receiver, and that the things did not lose their character of stolen property by what was done by the policeman, Keating, J. I agree with my brother Martin that the conviction was wrong. It seems conceded, on the authority of Dolan's case, that if the property had got back again for any time into the hands of the true owner, the conviction would be wrong. It is said that, in this case, the owners mentioned in the indictment, the railway company, were not the real owners, whereas in Dolan's case the real owner intervened. But I think there is no distinction in principle between this case and that. The railway company are alleged in the indictment to be the owners of the property, and we sitting here can recognize no other persons than them ; they are the owners from whom the property was stolen, and it got back to their possession before it was received b^' the prisoner. I can see no real distinction between this case and Dolan's. All the reasons given for the judgment in that case apply equally to the case of the ownership in this case. The principle I take to be, that when once the party having the right of control of the property that is stolen gets that control, the transaction is at an end, and there can be no felonious receipt afterwards. I think the test put by my -brother Lush in the course of the argument, as to the real owner suing the railway' company for the property after they had got the control of .it, is decisive of the matter. Melloe, J. I agree entirely with my brother Erie, C. J., and think the conviction was right. The indictment rightly alleges the property to have been in the railway company at the time it was stolen ; they had the bailment of it from the true owner. Then it is stolen while in their custody, and the next step is, the thieves afterwards send a por- tion of it by the same railway company to be forwarded to the receiver at Brighton ; so that the railway company get possession of this part from the thieves under a new bailment. Then the policeman examines the property and directs it not to be forwarded until further orders ; but this was not done with the view of taking possession of it or alter- ing its transit, but merely to see whether it was the stolen property. I agree with Dolan's case, but in the present case I think the stolen property had not got back to the true owner. Lush, J. I agree with my brothers Martin, B., and Keating, J., and think that the conviction was wrong. I think that the goods had got back to the owner from whom they had been stolen. Had the rail- way company innocently carried the goods to their destination and delivered them to the prisoner, the felonious receipt would have been 426 CASES ON CKTMINAL LAW. [CHAP. XXXVIII. complete ; but while the goods are in their possession, having been previously stolen from them, the goods are inspected, and as soon as it was discovered that they were the goods that had been stolen, the railway company did not intend to carry them on as the agents of the bailor ; the forwarding them was a mere pretence for the purpose of finding out who the receiver was. It was not competent to the railway company to say, as between them and the original bailor, that they had not got back the goods. They were bound to hold them for him. In afterwards forwarding the goods to the prisoner, the company was using the transit merely as the means of detecting the receiver. Martin, B. I only wish to add that I meant to say that I think the conviction wrong in substance in consequence of the interference of the policeman with the property, and this independently of the form of indictment.* Conviction quashed. UNITED STATES v. DeBARE, 6 Biss. 358. The indictment charged that on the 19th of November, 1874, the defendant, with intent to defraud the United States, wilfully and feloni- ously received from one Crawford a quantity of postage stamps, the said stamps having been stolen from a post-offlce of the United States, and the defendant, at the time he received the same, knowing them to have been stolen. At the trial the testimony disclosed the following facts : — In the night of November 12, 1874, the post-oflBce at Unionville, Missouri, was robbed by Crawford, and postage stamps to the amount of about $156 were stolen. The robber was detected and arrested at Quincj', 111. Previous to his arrest, he had deposited the stamps in the form of an enclosed package in the express office at Quincy, di- rected to the defendant at Milwaukee, Wisconsin. After his arrest, he surrendered other property stolen from the Unionville post-offlce, and on request of the Quincy postmaster gave the latter a written order on the agent of the express company for the package of stamps. Upon presentation of this order at the express office the stamps were delivered to the Quincy postmaster, who testified that he took the package to his office, opened it, counted the stamps, and placed them in the post-office vault. He thus retained possession of the stamps until subsequently ordered by the post-office department to let them 1 [See Regina v. Hancock, 14 Cox C. C. 119 (1878).] SECT. II.J UNITED STATES V. DbBAEE. 427 go forward to the consignee. Using the external wrapper and fasten- ings he found upon the package when it came to his possession, he re-inclosed the stamps and re-deposited them in the express oflBce to be forwarded, the package bearing the identical directions placed upon it bj' the original consignor. Testimon}- was given on the trial to show that the stamps after being thus forwarded came to the hands of the defendant. The jury were instructed, that in order to convict, it must be proven as charged in the indictment, that the defendant received the stamps from Crawford, and that if the jury should find from the evidence that the Quincy postmaster, as his individual act, or for and in behalf of the post-offlce department, forwarded the stamps to the defendant, and that the defendant received them from the postmaster and not from Crawford, there must be a verdict of acquittal, even though the stamps were originally stolen by Crawford. The verdict was against the accused. His counsel moved for a new trial on two grounds : — 1st. That the verdict was against the evidence and the instructions of the Court, and moreover, upon the facts proved, that the jurj' should have been directed to render a verdict of acquittal. 2d. That when the stamps came into the hands of the Quincy post- master, their character was that of stolen property recovered by the owner; that they thereafter ceased to have that character, and that when received by the defendant, they were not, as to the person from whom they came, stolen stamps, and therefore there could be no con- viction in this case. Dyee, J. . . . The ownership of these stamps was in the United States. The Quincy postmaster was the agent of the owner. When Crawford surrendered them to this agent they were reclaimed propertj' that had been stolen, but their character as stolen property ceased in the hands of the postmaster, so far as the subsequent receiver was concerned. The moral turpitude of a receiver under such circumstances may be as great as in case the property comes directly from the hands of the thief, because the criminal intent on his part exists equally in both cases. But to create the offence which the law punishes, the property when received must, in fact, and in a legal sense, be stolen property. If these stamps were received by the defendant, they did not, when received, upon the proof made bear this character. They had been captured from the thief by the owner, and the act of forwarding them to the alleged receiver was the act of the owner. 428 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. Section 3. Only Goods Stolen Within the Jurisdiction. REX V. PROWES, 1 Moody C. C. 349 [1832]. CROWN CASE RESERVED. REGINA V. MADGE, 9 C. & P. 29 [1839]. The prisoner was indicted for stealing, within the jurisdiction of the Central Criminal Court, various articles of household furniture, etc., belonging to one Colonel Latour. Clarkson, for the prosecution, stated to his liordship that the prop- erty in question had been deposited by the prosecutor in a house at Boulogne, in France, and that the prisoner had stolen it at Boulogne, but being found in possession of it at the custom house in London he had been taken before the Lord Mayor, who had committed Mm for trial. Parke, B. There is a case precisely in point on the subject. Clarkson. Your Lordship alludes to the case of Rex v. Prowes.* That case even goes further than the present, for there the property was taken at Jersej', which is under the dominion of the British Crown, and 3'et it was held that the courts here had not jurisdiction. 1 recol- lect also a case before Mr. Serjeant Arabin in which I, not being aware of the decision of the judges, thought that the bringing of the property into England was a larceny, and Mr. Serjeant Arabin thought so too, and the prisoner was convicted ; but I am bound to say that a pardon was afterwards granted on the ground that the decision of the learned judge was incorrect. Parke, B. There is no doubt upon the point on the authority Of Rex «. Prowes. That case is precisely in point, though rather stronger than the present. His Lordship afterwards said that it had been intimated to him that some of the judges had expressed a wish to have the case of Bex 1). Prowes reconsidered, and that in consequence of this the Lord MayOi: had committed the prisoner ; but if it was not so he should act upOfi the authority of the decision in that case. His Lordship, having caused 1 Ey. & Moody C. C. R., 349. SECT. III.] EEGINA V. CAEE. 429 a communication to be made to the Lord Mayor upon the subject and having received his answer, directed the prisoner to be brought up and the jurj' to be charged with the indictment. The prisoner was ac- cordingly put to the bar and the jury charged. Paeke, B., upon this said that the Lord Maj'or had not committed the prisoner for trial in consequence of any intimation from the judges that it was desirable to reconsider the case of Rex v. Prowes, but it was thought right that the prisoner should be publicly tried and ac- quitted in order that the attention of the legislature might be drawn to the state of the law in case they should think it right to interfere by any legislative provision on the subject. His Lordship then told the jury that they had no jurisdiction so as to convict the prisoner and therefore they must pronounce a verdict of acquittal. Verdict, not guilty. REGINA V. CAER, 15 Cox C. C. 129 [1882]. CROWN CASE RESERVED. Case reserved for the opinion of this Court by North, J. The prisoners were tried before me at the Old Bailey at the Session of the Central Criminal Court on the 13th day of September last for felony in respect of twenty-five bonds (£20 each) of Egj'ptian Preference Stock, two bonds of 1000 dollars (ten shares) and 500 dollars (five shares) respectively of the Illinois Railway, and thirty other bonds of Egyptian Unified Stock. The first count charged the prisoners with stealing these securities upon the high seas within the jurisdiction of the Admiralty of England ; the second count charged that they being British subjects within the jurisdiction of the Admiralty of England upon the British ship " Ava- lon," then being in a certain foreign port, to wit, the port of Rotter- dam, stole the same securities ; the third count charged them with larceny of these securities within the jurisdiction of the Central Crim- inal Court ; the fourth count charged them with receiving the same securities within the jurisdiction of that court, well knowing them to have been stolen ; and the fifth and sixth counts respectively' charged them with having been accessaries after the fact to the theft and the receiving respectively of the same securities by persons unknown. A copy of the abstract of the indictment was set out in the schedule to this case and the indictment may be referred to as a part thereof. I was asked by the counsel for the prisoner Wilson to quash the 430 CASES ON CBIMINAL LAW. [CHAP. XXXVm. second count of the indictment ; but it was suggested by Sir H. Giffard, Q. C, -who appeared for the prisoner Carr, that the better course would be that the prisoners should refuse to plead, and I should direct pleas of not guilty to be entered, and this was accordingly done. The material facts proved were as follows : — 1. On the 12th day of July last the above mentioned Egyptian Pref- erence Stock and Illinois bonds were made up by Messrs. Kelker & Co., bankers at Amsterdam, into a parcel which was marked outside "value £50," and was addressed to Messrs. Mercia, Backhouse, & Co., in London. The Unified Stock was made up into another parcel similar to the first except that it was marked outside as " value £100." These parcels were of a class known as " valued parcels." They were traced clearly from Amsterdam to Rotterdam, to the office of Messrs. Pieters & Co., the agents there of the Great Eastern Railway Com- pany, on whose behalf the}' were received. 2. There was evidence that these two parcels were (with two others) taken from Pieters & Co.'s office by a man emploj^ed by them for that purpose and placed by him on board the steamship " Avalou" about half-past five p. m. on the same 12th July. 3. The " Avalon " is a British vessel registered at Harwich and sail- ing under the British flag. She is about 240 feet in length with a gross tonnage of 670 tons, and draws about ten feet six inches of water when loaded. She is the property of the Great Eastern Railway Com- pany and is regularly emploj'ed by them in their trade between Har- wich and Rotterdam. On the evening in question she was lying in the river Maas, at Rotterdam, about twenty or thirty feet (the captain also described it as " about the breadth of the court " ) from the quay and against a " dolphin," a structure of piles for the use of the company's ships only, projecting from the quay for the purpose of keeping vessels off' the quay. She was moored to the quaj' in the usual manner. 4. The place where the " Avalon " was lying was in the open river, sixteen or eighteen miles from the sea. There is not any bridge across the river between that point and the sea. The tide ebbs and flows there and for many miles farther up the river. The place where the " Avalon " was Ij'ing at the dolphin is never dry and that vessel would not touch the ground there at low water. The Admiralty chart show- ing the river Maas from Rotterdam to the sea was put in evidence at the suggestion of the counsel for the prisoners and was proved by the captain of the " Avalon" to be correct. It is marked J. T. H. 1. 5. While the "Avalon" was lying at the dolphin, as above de- scribed, persons were allowed to pass backward and forward between her and the shore without hindrance. SECT. III.] EE6INA V. CAEE, 431 6. The "Avalon" sailed for England the same evening, about six o'clock, and arrived at Harwich the following morning. Upon her ar- rival the two valued parcels above mentioned (and one of the other parcels) were at once missed, and upon inquiry it was found that they had been stolen. The parcel containing the Unified Stock and the third parcel have never since been traced ; but the parcel containing the Egj'ptian Preference Stock and the Illinois bonds was found in the prisoners' possession on the 1st August. 7. The prisoners are British subjects. 8. It was contended for the prisoners that there was no evidence upon which the jury could find them guilty upon the counts charging them with stealing the securities. I was of that opinion, and so di- rected the jury, and the prisoners were accordingly acquitted upon those counts. 9. It was also contended for the prisoners that unless the jurj- found that the securities had been stolen from on board the "Avalon" the prisoners must be acquitted, as, if they had been stolen after leaving Pieters & Co.'s office and before reaching the ship, the offence of steal- ing them was one which this court had not jurisdiction to try, and there- fore the prisoners could not be tried here for receiving, according to the case of Regina v. John Carr^ (one of these prisoners), reported in 1 Kegina. v. Cabr. (Central Criminal Court. Before Mr. Justice Denman. November 22d, 1877.) John Carr was indicted for stealing 168 bonds of the Peruvian Government, the property of Lionel Cohen and others; second count for feloniously receiving the same. There were other counts charging him as an accessary before and after the fact. The Sdicitor- General and Poland were counsel for the prosecution and Besley and Grain for the defence. The bonds in question, on the 2d June, 1877, were transmitted by the prosecutors to a customer in Paris. They were traced safely as far as Calais and were stolen from the train after leaving that place. On the 4tli of September the prisoner was found dealing with them in London, and the question arose as to the jurisdiction of this court to try the case, the robbery having been committed in France. The Solicitor- General submitted that the prosecutors never having parted with their property in the bonds, they were still under the protection of the law, and that the subsequent possession of the bonds in this country was sufficiently recent to en- able the jury to find a verdict of larceny against a person who was dishonestly deal- ing with them here. The decision in Rex v. Prowes, 1 Moody C. C. 349, was certainly opposed to this view ; but no reasons were given for that judgment and a doubt as to the soundness of the decision was expressed by Parke, B., in Regina v. Madge, 9 C. & P. 29. The case of Regina v. Debrueill, 1 1 Cox C. C. 207, was re- ferred to. As to the counts charging the prisoner with receiving and also as an 432 CASES ON CEIMINAL LAW. [CHAP. XXXVIII, vol. Ixxxvii., p. 46, of the Sessions Papers at the Central Criminal Court, and the eases there cited. I took this view and directed the jury that unless they were satisfied that the securities had been taken from the " Avalon " they must acquit the prisoners. They found both the prisoners guilt}-. 10. I was not asked to leave and did not leave any question to the jury whether the securities were stolen before or after the " Avalon " commenced her voj'age from Rotterdam. There was no evidence upon which the jury could have found that the theft occurred after the voyage began ; the evidence rather pointed to its having occurred be- fore she sailed. 11. It was further argued on the prisoners' behalf that even if the securities had been stolen from the "Avaloix" there was nothing to show that they had been taken from a British subject and therefore the case did not come within the Acts 17 & 18 Vict. c. 104, § 267, 18 & 19 Vict. c. 91, § 21, or 30 & 31 Vict. c. 124, § 11, and the thief was amenable to the law in Holland only ; and further that the case of Re- gina V. Anderson, L. R. 1 C. C. R. 161 ; 11 Cox C. C. 198, was no authority to the contrary, inasmuch as the prisoner in that case, though a foreigner, was one of the crew of a British vessel and therefore owed allegiance to the law of England, and upon that ground could be tried here. The counsel of the Crown did not dispute that the offender might be tried in Holland but insisted that he might be tried here also. 12. I expressed my opinion that if the " Avalon" had at the time when the securities were stolen been sailing up or down the river Maas, accessary the 24 & 25 Viet. o. 94 contemplated a case of this kind, where the original offence was committed abroad. Bestey relied on the decision in Rex v. Prowes (uhi mp.) and Kegina v. Hogetoran (Cent. Crim. Court Sess. Paper, vol. 79, p. 268) and Regina v. Nadal (84 Cent. Grim. Court Sess. Paper, p. 295). Denman, J. There can be no doubt that this was a larceny fully completed in France. I do not at all say that it might not be a very reasonable thing that any one afterwards dealing here with property so stolen might make cogent evidence of having received them knowing them to have been stolen, just as much as if they had been stolen in England ; but it appears to me that the point has been too sot emnly decided for me to give the go-by to those decisions. It has been solemnly decided and acted upon so often that there is no jurisdiction in England to try a case where the stealing has been committed abroad, either against the principal or the accessary, that I have nothing to do but to act upon those decisions and to direct an acquittal in this case. I entertain no doubt that the case of Rex v. Prowes (ubi sup.) is directly in point and Regina v. Madge {ubi sup.) fortifies it to the extent of recog- nizing and acting upon it. Debrueil's case also decides that a conviction of receiv- ing under similar circumstances could not be sustained. The prisoner must therefore be acquitted. SECT. III.J EEGINA V. CAEE. 433 the person who took them, whether an Englishman or a foreigner, could clearly have been tried here upon the authority of Regina v. Anderson ; that the law is the same whether the ship be anchored or sailing, as ap- pears from the cases of Rex v. Jemot, and Rex v. Allen, 7 C. & P. 664 ; 1 Moody's C. C. 494, where the vessels were lying in port, and which cases are referred to by Lord Blackburn with approval in Regina V. Anderson ; and that it could not make any legal difference whether the vessel was made fast to the bottom of the river by anchor and cable or to the side of the river by ropes from the quay. I also expressed mj' opinion that although the fact that the prisoner in Regina v. An- derson was one of the crew was referred to more than once in the judgment of Bovill, C. J., it was not mentioned by any of the other judges and was not the ground of the decision ; and that it made no difference in the present case whether the securities stolen from the " Avalon " were taken by one of the crew or passengers or by a stranger from the shore. 13. I directed the jury accordingly telling them that if they came to the conclusion that the securities were taken from the ship the taking them was an offence which could be tried here ; and that if so the pris- oners could now be tried here for receiving and could be found guilty of that offence if the jury thought the facts proved warranted such a finding. I stated at the same time that I should, if necessary, reserve the point for the consideration of this court. 14. With respect to the receiving no difficulty of law arose and no point was reserved. 15. The jury found both prisoners guilty upon the fourth count. I postponed passing sentence until the opinion of the Court is given ; and the prisoners remain in eustod}'. The question upon which I desire the opinion of this Court is whether under these circumstances there was any jurisdiction to try the prison- ers at the Old Bailey for the offence of which they have been found guilty. If answered in the affirmative the conviction is to' stand. If otherwise the conviction is to be quashed ; but the prisoners are to re- main in custodj' to be tried upon another indictment on which a true bill against them has been found by the grand jury. Ford Noeth. Coleridge, C. J. This case has been argued at some length and the question raised by it is no doubt of considerable importance. The facts are these : The bonds which the prisoners have been convicted of feloniouslj'^ receiving were on board an English ship in the river Maas off Rotterdam in front of a " dolphin," and was moored by ropes to the land of Holland. The tide ebbs and flows in the river, and at the place 28 434 CASES ON CEIMINAX LAW. [CHAP. XXXVIII. where she was lying in front of the "dolphin" there is always enough water to float ships of her class. There was no actual proof when or bj' whom the bonds were stolen. The case states, " There was no evi- dence upon which the jury could have found that the theft occurred after the voyage began ; the evidence rather pointed to its having oc- curred before she sailed." Whether the bonds were carried off the ship on to the shore and sent by some conveyance to the prisoners in Eng- land or whether they were brought by the prisoners to England does not appear. The prisoners were acquitted of stealing the bonds and found guilty of receiving them with guilty knowledge that they had been stolen. It is obvious that the prisoners could not be convicted of feloniously receiving the bonds unless they were stolen within the same jurisdiction where the receiving took place, and therefore it becomes material to inquire whether the jurisdiction of the Admiralty attached so that the prisoners could be tried at the Old Bailey. It is admitted that the exact point raised in this case has never arisen for decision in our courts before. There appear but two points for us to decide. 1. Was the ship within the jurisdiction of the Admiralty so as to make offences committed upon it triable according to the English law? 2. If that point is answered in the affirmative were the prisoners, according to the decisions, liable to be tried in the English courts? First, as to the place. The place appears to me to come within the old definition of the Admiralty jurisdiction. The ship was at a part of the river which is never dry and where it would not touch the ground at low water, and the tide ebbs and flows in the river and great ships do lie and hover there. That is sufficient to bring this ship within the Admi- ralty jurisdiction. Without saying that the reports of the case of Rex V. Jemot and Rex v. Allen (ubi sup.) are as full as could be desired, it seems very difficult to draw any tangible distinction between them and the present case. This case also falls within the decision of Eegina v. Anderson {uM sup.) where the ship was half-way up the river Garonne in France, and at the time of the offence about three hundred yards from the nearest shore, and this Court held, the prisoner having been convicted of manslaughter, that the offence had been committed within the jurisdiction of the Admiralty and that the Central Criminal Court had jurisdiction to try the prisoner. I am unable to distinguish this case from that, but if anything Regina v. Anderson seems an a fortiori case. Then, as to the second point, whether there is anj'thing in the personality of the prisoners which would make them not liable by the law of England. It is true that some of the judges in Regina v. Ander- son (ubi sup.) place reliance upon the fact that the prisoners formed part of the crew of the vessel, but Bovill, C. J., in his judgment points out that England has always insisted on her right to legislate for per- BECX. ni.J EEGINA V. CAEK. 435 sons on Ibeard her vessels in foreign ports. None of the judges sug- "I am readj' for j'ou, you must come up- to the scratch," and that fie had provided a room up town where he would close the contract. They went to the place and he came there, accompanied by the clerk of his court and others- to aid in counting the money. He brought a valise or small handi-trunt, saying, " There is the stolen property." The bonds were found, and the counting proceeded till the amount was ascertained and certified. Some gold had' been stolen, which' he said it was idle to talk of restoring; as gold was never restored in such cases. The agents paid hiin the 8 per cent., which amounted to $9809.52, in Marj-land bank funds. For this he gave his receipt, expressing it to be " as a settlement upon the restoration of $122, 619, of the issues of the Frederick County Bank." The' transaction was closed on Saturday the. 26th of 440 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. June, when the defendant and the agents exchanged receipts and dis- charges of that date. The bank never recovered any part of the gold. The agents and others were examined and cross-examined at great length as to the above circumstances and various others connected with them. It appeared that in the course of the negotiation, the defendant advised caution, sajing, " These thieves are scary birds." Peter See, the defendant's clerk, was sworn as a witness for him ; by whom the defendant's counsel, " in order to show the publicity given to his proceedings by the defendant prior to the receipt of the property ia question, proposed to prove that the defendant, previously to Saturday the 26th of June, stated freely during the week that he expected shortly to obtain possession of the property which was stolen from the Fred- erick County Bank." This was objected to, on the ground " that even for the purpose proposed, the defendant could not give his own declara- tions in evidence." The Court sustained the objection, and the defend- ant excepted. The Court charged the jury, 1. That the issues or promissory notes of the bank were the personal property of the bank, within the mean- ing of the statute on which the indictment was founded ; and that the instruments called bonds, although not sealed or marked with an L. S., were well described in the indictment. 2. That the articles were to be considered as stolen in this State, though first stolen in and brought from another, and so were capable of being criminally received here. 3. That, as to the section of the statute under which the prisoner stood in- dicted — namely, 2 Eev. Sts. 680, § 71 — a very literal construction should not be adopted ; that it was the intent with which the stolen property was received that constituted the essence of the offence ; that the prop- erty must have been received not only with knowledge, but with evil intent (mala animo), and this intent must have been either to wrong the Commonwealth or to wrong the owner, — that is to say, either to as- sist the felon in escaping detection, or to prevent detection or punish- ment, or to deprive the owner in whole or in part of his propert}' ; that, in accordance with this principle, if Wiley received the stolen goods at the request of the owners, and for the purpose of returning the goods to the owners, he was not guilty. 4. That if he received the property from the person who stole it, knowing it to have been stolen, with in- tent to extort from the bank a large reward for its restoration, and secretl}' retained it while he employed himself in efforts to extort such reward from the agents of the bank, and then delivered it to the bank on receiving the reward, he appropriating the latter to himself or divid- ing it with the felon, he was guilty. 5. If, however, he did not receive the stolen property till Saturday morning the 26th of June, and then received it at the request of the agents of the bank for the purpose of SECT. IV.] EEGINA V. WADE. 441 delivering it to them in pursuance of the previous agreement betvreea the agents and himself, and did so actually deliver it without delay, he ■was not guilty. But if, on the day mentioned; he received the stolen property, knowing it to have been stolen, with the view and intent, without the knowledge and consent of the owners or their agents, to appropriate to himself the reward agreed upon, or to divide it between himself and the felon, and if he did so appropriate or divide the reward, this would be a corrupt receiving of stolen property within the statute. The defendant excepted to the first and second instructions contained in the charge, and " so much of the fifth as declared that, under the other circumstances supposed in said instructions, the defendant would still be guilty of the oflTence charged in case he had, in receiving the alleged stolen property, the motive of obtaining from the bank, either for his own benefit or that of the alleged thief, the reward agreed upon, and because of the reference by the court to a supposed ignorance or want of consent on the part of the owners to the appropriation of the reward, not alleged or attempted to be proved." On the argument in this court, the exception to the second instruction was waived. [A new trial was denied.] Section 4. Distinction between Larceny feom Thief aito Receiving. EEGINA V. WADE, 1 C. & K. 739. The prisoners Wade and Kenyon were indicted for having broken and entered the house of Thomas Worsley at Warrington, and having stolen therefrom one watch, two handkerchiefs, and other articles his property, the prisoner Leigh being indicted for receiving the watch and the handkerchiefs, knowing them to have been stolen. The prisoners Wade and Kenyon pleaded guilty. The prisoner Leigh pleaded not guilty and was tried. It was proved by the servant of a pawnbroker that the wife of the prisoner Leigh had pledged the stolen watch on a day subsequent to the robbery, and James Jones, a constable of Warrington, also proved that he had seen all the three prisoners together, they being in custody together at Manchester, when Leigh said that he had left Kenj'on's house with Kenyon before the robbery, that he had afterwards gone to Dun- ham (about eight miles from Manchester) and returned. Leigh was 442 CASES ON CRIMINAL LAW. [CHAP. XXXVIIL thea discharged. But the witness subsequently went to Manchester again, and caused him to be again apprehended ; and Leigh's wife then, in the presence of Leigh,, told this, witness, that she had taken the watch and pawned it for 10s. She added that Leigh had also: told her to take two. handkerchiefs, and. that, aa she was about to go with them, a police,- man came, and she left them in a cellar next door to her husband's house. Upon that, information, the witness went to the cellar and found the handkerchiefs. Afterwards,, whea Leigh was in custody in the lockups with Wade, Leigh told the same witness, that while he (Leigh) was before with Wade in the same place. Wade had told him (Leigh) that he had " planted" the. watch and handkerchiefs under a flag in, the soot-cellar in his (Leigh's) house ; and that when he (Leigh) was discharged', as before mentioned, he had gone and taken the things, aad had desired his wife to. pledge lixe watch for as much as she could get upon it. The watch and handkerchiefs, were identified as the property of the prasEcutor. Pollock, G.> B^ I doubt whether, when, the possession has been transferred bj' an act of larcenj-, the possession can be considered to remain in the owner. Were it so, then every receiver of stolea geods, knowing them to be stolen, would be a thief ; and so on, in series from one to another, all would be thieves. If this was an act done by the prisoner (Leigh) in opposition to Wade, or against his will, then it might be a question, whether it were areceiving.. Bat if Leigh, took the articles in consequence of information, given by Wade, Wade telling Leigh in order that the latter might use the information by taking the goods, then it is a receiving, Yerdict, guilty. Section 5. Act' of Recefvinx}. EEGESTA V. SMITH, 1 Dears. C. C. 494 [1855.]. The following case was reserved for the opinion of the Court of Criminal Appeal by Mr. Edwin James, Qi C, Recorder of Brighton. At the Quarter Sessions of the Peace for the borough of Brighton, holden at the Town Hall in^ the said borough, before the Recorder of the borough, on the 8th day of May,, 1855, the prisoner, Thomas Smith, was indicted for felonioaslj* recei;ving a stolen watch, the prop- erty of Joha Nelson, kiaawing, the same to have been stolen. It was SECT, v.] EEGINA V. SMITH. 443 proved that John Nelson,, the prosecutor, between eleven and twelve o'clock on the night, of the 12th of April in this j^ear, was in a public- house called the " Globe " in Edward Street in the said borough ; he was in companj' with a prostitute named Charlotte Duncan, who lodged in a room of a house No. 17 Thomas Street, Brighton, which belonged to the prisoner, of whom she rented the room. The prisoner and five or six other persons were present in the apart- ment in the Globe Inn when the prosecutor and Charlotte Duncan entered ; while the prosecutor was drinking in the " Globe," his watch, being the watch named in the indictment, was taken, from his person by some one who forced open the ring which secured the watch to a guard. The prosecutor heard the click of the ring and immediately missed his watch, and taxed- the prisoner as the thief. A policeman was sent for and a partial search made, but the watch was not found. The prisoner was present all that time, and also a. man named Hollands was pi'esent all the time. Soon after the loss of the watch the prose- cutor and the girl Charlotte Duncan went together to Charlotte Dun- can's, room in Thomas Street. After they had been there together little more than an hour the prisoner came into the room where, they were, and said to the prosecutor, " Was not you in the ' Globe,' and did not you lose j'our watch ?. " The prosecutor said, "Yes." The prisoner then said, "What would you give to hava your watch back again?" Prosecutor said, " I 'd give a sovereign." Prisoner then said, " Well, then, let the young woman come along with me, and I will get you the watch back again.'' Charlotte Duncan and the prisoner then went together to a house close by, in which the prisoner himself lived. They went together into a room in which Hollands was. This was nearly one o'clock. There was a table in the room ; on first going in Charlotte Duncan saw there was no watch on the. table, but a few minutes afterwards she saw the watch there. The prisoner was close to the table. She did not see it placed there,, but she stated it must have been placed there by Hollands, as, if the prisoner to whom she was talking; had placed it there, she must have observed it.. The prisoner told Charlotte Duncan to take the watch and go and get the sovereign., She took it to the room in 17 Thomas Street, to the prose- cutor, and in a few minutes the prisoner and Hollands came to that room. Hollands asked for the, reward. The prosecutor gave Hollands half-a-crown, and said he believed the watch was stolen, and told him to be off. Hollands and the prisoner then left. The prisoner did not then say aaything, nor did the witnesses see him receive anj' money. Hollands absconded before the trial.. The recorder told the jury that, if they believed that when the prisoner went into the room 1 7 Thomas Street and spoke to the prosecutes about the return of the watch and 444 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. took the girl Duncan with him to the house where the watch was given up, the prisoner knew that the watch was stolen ; and if the jury believed that the watch was then in the custody of a person with the cognizance of the prisoner, that person being one over whom the pris- oner had absolute control, so that the watch would be forthcoming if the prisoner ordered it, there was ample evidence to justify them in convicting the prisoner for feloniously receiving the watch. The jury found the prisoner guilty, and, in answer to a question from the recorder, stated that they believed that, though the watch was in Hollands' hand or pocket, it was in the prisoner's absolute control. Sentence was passed on the prisoner, but was respited until the opinion of the Court could be taken. The question for the opinion of the Court is, if the conviction of the prisoner is proper. This case was argued on the 2d day of June, 1855, before Lord Campbell, C. J., Alderson, B., Erle, J., Platt, B. and Crowder, J. No counsel appeared for the Crown. Lord Campbell, C. J. I think that the conviction was right. In the first place the direction of the learned recorder was unexception- able. According to the decided cases as weU as to the dicta of learned judges, manual possession is unnecessary. If we were to hold a con- trary doctrine, many receivers must escape with impunitj'. Then it has been held in decided cases, including Regina v. Wiley,^ that there may be a joint possession in the receiver and the thief; that is the ratio decidendi on which the judgment in that case proceeds. Then, was not there ample evidence to justify the jurj' in coming to the con- clusion at which they arrived ? I think there was. They might, it is true, have drawn a different conclusion, and have found that Smith was the thief ; and if they had drawn that conclusion, he would have been entitled to an acquittal. Another inference which they might have drawn, and which would also have resulted in a verdict of not guilty, was, that Hollands being the thief, the watch remained in his exclu- sive possession, and that the prisoner acted as his agent in restoring the watch to the prosecutor ; but the jury have come to a diflferent conclusion, and I think they were justified in so doing. We have instances in real life, and we find it represented in novels and dramas drawn from real life, that persons are employed to commit larcenies and so deal with the stolen goods that they may be under the control of the emploj-er. In this case Hollands may have been so employed by the prisoner, and the watch may have been under the prisoner's ^ Below, p. 445. SECT, v.] EBGINA V. "WILBT, 445 control, and if so, there was evidence of a possession both by Hollands and the prisoner. Aldeeson, B. There was abundant evidence from which the jury might come to the conclusion at which they arrived, although there was evidence the other way. Eele, J. The doubt in these cases has arisen as to the meaning of the word " receive," which has been supposed to mean manual posses- sion by the receiver. In Regina v. Wiley, Patteson, J., says, that a manual possession, or even a touch, is not essential to a receiving, but that there must be a control over the goods by the receiver. Here the question of control was left to the jurj-, and thej' expressly found that though the watch was in Hollands' hand or pocket, it was in the prisoner's absolute control. Platt, B. There was some evidence that the prisoner might have been the thief, and the prosecutor charged him with being the thief; but a search was made and the watch was not found, and it was proved that Hollands absconded before the trial ; from that and the other facts of the ease, the jury might well find that Hollands was the thief and the prisoner the receiver. Ceowdee, J. I also think that both the direction and the convic- tion were right. There was sufficient evidence that Hollands was the thief. The question is then put to the jury. Was the watch under the control of the prisoner ? And they say it was. That finding is suffi- cient to support their verdict, and the conviction was right. Conviction affirmed. REGINA V. WILEY, 4 Cox C. C. 412 [1850]. At the Northumberland Quarter Sessions, holden at Newcastle-upon- Tyne, on the 26th of July, 1850, Bryan Straugham, George Williamson, and John Wiley were jointly indicted for stealing and receiving five hens and two cocks, the property of Thomas Davison. It was proved that on the morning of the 28th day of January, at about half-past four o'clock, Straugham and Williamson were seen to go into the house of John Wiley's father with a loaded sack that was carried by Straugham. John Wiley lived with his father, in the said house, and was a higgler attending markets, with a horse and cart. Straugham and Williamson remained in the house about ten minutes and were then seen to come out of the back door, preceded by John Wiley with a candle, Straugham again carrying the sack on his shoulders, and to go into a stable be- 446 CASES 01< CRIMINAL XAW. [CHAP. XXXVXlf.I. longing to the same house, situate in an enclosed yard at the back of the house, the house and stable being on the same premises. The stable door was shut "by one of them, and on the policemen going in they found the sack lying on the floor, tied at the mouth, and the three men standing round it as if they were bargaining, but no words were heard. The sack had a hole in it, through which poultry feathers were seen protruding. The bag when opened was found to contain six hens, two cocks, and some live ducks. There were none of the inhabitants up in the house but John Wiley, and on being charged with receiving the poultry, knowing it to be stolen, he said he did not think he would have bought the hens. The jury found Straugham and William- son guilty of stealing the poultry laid in the indictment, and John Wiley guilty of receiving the same, knowing it to have been stolen. The bench told the jury that the taking of Straugham and Williamson, with the stolen goods, as above by Wiley, into the Stable over which he had control, for the purpose of negotiating about buj-ing them, he well knowing the goods to have been stolen, was a receiving of the goods within the meaning of the statute. The bench, however, submitted a question to this court, whether under the circumstances the conviction of 'Wiley was proper. The three prisoners were again jointly indicted for stealing and receiving the nine ducks which were found in the sack above mentioned, and upon ithe same evidence and upon the same direction by the bench the jury again found Straugham and WilUamson guilty of stealing and Wiley guilty of receiving the nine ducks, know- ing them to have been stolen, and the bench reserved a similar question for the consideration of this court on this indictment. This case was first argued on Saturday, April 27, before Lord Camp- bell, C. J., Parke, B., Alderson, B., Cresswell, J., and Erie, J. Otter, for the prisoner. The earlier statutes made it felony to buy or to receive ; but the 7 & 8 Geo. IV. c. 29, § 54, does not contain the word "buy;" and the buying of stolen goods is not now a felony, unless the goods are actually received into the possession of the buyer. The negotiation, therefore, between the thieves and Wiley has no weight. There cannot be a joint possession of thief and receiver, any more than of buyer and seller ; the possession of one is antagonistic to that of the other. E. v. Parr, 2 Moody & R. 346. An actual receipt is necessary to make out a case of civil liabilitj' within the Statute of Frauds. Farina v. Home, 16 M. & W. 119. Hill's Case, 1 Den. CO. 453, is also in point, because here the property never was actually or " potentially " in the possession of Wiley. Liddell, contra. There was evidence for the jury of a possession by Wile}'. He materially assisted in removing the stolen property into the stable, and he had first of all received it into the house. 2 East, SECT, v.] EEGIKA V. WILEr. 447 iP. C. 705; iR. u. Davis, 6 C. & P. 178; Eichardson's Case, 6 C. & J*. 335. A 'Constructive possession is enough,; and Hill's Case only .introduces a difflcultj' by using the word " potential," the exact mean- ing of which it is not very easy to define. It is quite immaterial that .the house belonged to the prisoner's father. E. v. Gruncell, 9 C. & P. 365. Otter in reply cited R. v. Wilkins, 1 Leach, ,622. Cur. adv. vult. By the direction of the judges, the case was je-argued on Tuesday, IJovember 26, before Lobd Campbell, C. J., Parke, B., Aldbeson, B., Pattesok, J., Coleridge, J., Maule, J., Oresswell, J., Erle, J., Platt, B., Williams, J., Taltourd, J., and Martin, B. Otter, for the prisoner. By taking the thieves with the stolen prop- •erty into the stable, the prisoner might perhaps have been indicted as an accessary at common law. [Parre, B. I doubt that, unless it was done to faciUtate their escape.] At all events that is an offence quite different from the one charged ; for to make him an accessarj-, he must receive the felon. .1 Hale, P. C. 618, 619, 620. The early statutes upon this subject apply to persons " buying or receiving" stolen prop- jerty. 1 Anne, Stat. 2, c. 9, § 2 ; 5 Anne, c. 31, § 5 ; 25 Geo. II. c. 10, § 3 ; 21 Geo. III. c. 69, § 1 ; but in 7 & 8 Geo. IV. c. 29, § 54, the word *' buy " is left out, and " receive " stands alone ; the inference there- fore is that a buying, still less a bargaining for goods, is not enough, unless they are actually received. The question turns upon the mean- ing of the word "receive." Now, with regard to stolen goods, the property and the constructive possession remain in the owner, from whom they have been stolen ; the thief has no more than the actual possession ; and if he does not part with that, ie parts with nothing. He can give the receiver nothing but the actual possession ; and the moment he gives that, he ceases to. have any possession of any kind. Fyson v. Chambers,, 9 M. & W. 460. In Armory v. Delamirie, 1 Stra. 505, the plaintiff obtained possession lawfully.; .but if an unlawful possession is lost, trover cannot be maintaiined. Sudh being the situa- tion of the thief and receiver, in order to constitute a receiving there must be a willing parting with the possession on the part of the thief and a willing taking of possession on the part of the receiver. [Lord Campbell, C. J. May there not be a joint possession by the thief and receiver?] It is submitted that there cannot; for the possession of the thief is antagonistic to that of the receiver. In ,E. v. Wade, 1 C. & K. 739, it appeared that W. had stolen a watch from A. ; and while W. and L. were in custody together, W. told L. where he had " planted" it. Upon L.'s discharge, he went to the place and took the watch ; upon which Pollock, C. B., said, " If this was an act done by the pris- 448 CASES ON CEIMINAL LAW. [CHAP. XXXVni. oner (L.) in opposition to_ W., or against his will, then it might be a question whether it would be a receiving." [Alderson, B., referred to R. V. Hill, 1 Den. C. C. 453 ; 3 Cox C. C. 533.] That case shows that no constructive receipt is sufficient. [Loed Campbell, C. J. The expression is "possession actual or potential;" it implies therefore that there may be a sufficient possession without corporal touch. Martin, B. What is meant by "potential possession"?] It means at least that it should be accompanied with a disposing power ; it can- not mean a constructive possession, because in that case the prisoner bad a constructive possession of the stolen property by the deUvery to the carrier for her. [Alderson, B. There must be actual possession ; but two people may have actual possession at the same time.] Eegina V. Parr, 2 Moody & R. 346, is an authority against the notion of a joint possession by thief and receiver. In the present case, Wiley never had manual possession of the stolen goods ; and it is clear that the thieves did not intend to part with the possession without payment, or at all events until the bargain was complete. [Lord Campbell, C. J. Suppose the bargain had been completed, but the pohceman came in while the parties remained in statu quo? Parke, B. You saj' that there must be a giving by the thieves ?] Yes. [Alderson, B. It is consistent with the direction of the chairman that the thieves kept possession all the time. Parke, B. Yes, it considers the simple act of taking the thieves with the goods into the stable a receiving.] Suppose that Wiley had knocked down the thieves and taken the stolen property from them, might he not have been indicted for stealing them? Would there not have been a sufficient possession by the thieves to maintain trespass? Purnell v. Young, 3 M. & W. 288; Ashmore w. Hardy, 7 C. & P. 501. If the price had not been agreed, the thieves might and would have taken the goods away. The prisoner had still a locus penitentioB. [Patteson, J. If the goods were left for several hours in Wiley's house with his permission, he might be guilty of receiving, though the thieves afterwards took them away.] That would be a very different case. Here they were not left by the thieves at all. ZiiddeU, contra. The direction of the chairman imports all the facts previously stated up to the apprehension of the prisoners ; because the expression is, taking the thieves " as above." In the argument for the prisoner, a constructive possession per alium has been confounded with a joint actual possession by two. In R. v. King, Russ. & Ry. 332, goods had been removed from the possession of the prosecutor by A., in the absence of B., and B. afterwards joined in carrying them away; it was held that B. could not be convicted of stealing ; and in 2 Russ. on Crimes, 240, the case is classed as a case of receiving. It is doubt- SECT. V.J EEGINA V. WILEY. 449 ful whether mere naked possession will support either trespass or trover, so that test fails ; but the real question is, Had the prisoner actual or potential possession? [Loed Campbell, C. J. If a man knowingly receives stolen goods malo animo, is he not a receiver within the statute?] That is the definition in 2 East P. C. 766; and actual does not necessarily mean manual possession. If a letter is dropped into a letter box, it is in the possession of the owner of the box ; he has the power of taking it into his manual possession at any moment. Here "Wiley exercised a control over the goods. [Lord Campbell, C. J. Suppose that he had assisted in carrying the bag?] In that case he would clearly be guilty of receiving. [Lord Campbell, C. J. Then, does it make anj' difference, the three being engaged in a joint act, which carries the bag and which the candle?] Not the least. Under the Stat. 2 Will. IV. c. 34, §§ 7 and 8, it has been decided that a possession of counterfeit coin by one of two persons is the joint possession of both, if they were acting in concert, and both had knowledge of the possession. R. v. Rogers, 2 Moody C. C. 85 ; B,. V. Gerrish, 2 Moody & R. 219. Then "receive" and " have in possession" are convertible terms. Cole's Case, 2 East P. C. 767. [Erle, J. That case shows that they are not convertible terms. Lord Campbell, C. J. Was not Wiley as much in possession as the other two?] He had a "potential" possession. [Lord Campbell, C.J. I wish that word had not been used. It has no definite legal meaning.] It is satisfied, at all events, if the prisoner has the physical power of taking manual possession. [Coleridge, J. If " as above " imports into the direction of the chairman all that had been previously stated, your argument may be well founded ; but it is an odd expression.] If that is not so, there is no case against Wiley at all, because he may have taken the men into the stable quite innocently. The chairman must be understood as speaking with reference to all the circumstances of the case ; otherwise why are they all stated ? The different statutes which have been referred to were passed with the intention of enlarging the definition of an accessary after the fact; but, unless this is a receiving within the statute, the effect will have been to narrow instead of enlarge it. Otter, in reply. The conviction cannot be sustained if it is doubtful in whose possession the goods were. R. v. Gerrish affords no assis- tance in interpreting the word "receive," upon which this question turns. In that case the joint possession would convict both of the same offence ; but it would be a strange consequence if a joint actual possession bv two should be suflBcient to convict one of the offence of stealing and the other of that of receiving. The direction of the chair- man excludes from the consideration of the jury all that occurred in 29 450 CASES ON CBIMINAi LAW. [CHAP. XXXVIII. the stable. [Ceesswell, J. Suppose B. is in danger of being cap- tured, and C. knowing that B. is carrying stolen goods, conceals Mm in his house, does he feloniously receive the goods?] He does not. [Parke, B. You say that there must be a receipt of the goods inde-. pendent of the receiving of the thief.] Yes, if a lodging-house keeper is asked to buy a stolen watch, and says, " Sleep here, and I '11 tell j-ou in the morning," is he guilty of receiving stolen goods, though in the morning he may say, " I will have nothing to do with it " ? [Pakke, B. He who receives a thief is not an accessary unless he does it with a view to assist the thief in eluding justice. Lord Campbell, C. J. Instead of a watch, put the case of a hamper. Suppose A. brings a hamper to B.'s house, and says, " I have stolen this, will you keep it for me till the morning/' and B. consents, is he not a receiver of stolen goods ?] That would depend upon whether the thief parted with the possession of it. If the thief left it, he probably would be held a re- ceiver ; but if the thief remained with it all night, and he only received the goods and the thief together, it is submitted that he would not. Cur. adv. vult. The learned judges retired to consider the case, and after some in- terval returned into court, and differing in opinion, delivered their judgments seriatim. Martin, B. I am of opinion that this conviction is wrong. The question turns upon the construction of the Stat. 7 & 8 Geo. IV. c. 29, § 54, which enacts " that if any person shall receive any chattel, money, valuable security, or other property whatsoever, the stealing or taking whereof shall amount to a felonj', either at common law, or by virtue of this act, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of felonj' ; " and I apprehend that the true rule of construction is laid down in the case of Becke v. Smith, 2 M. & W. 195, by Parke, B., who says : " It is a very useful rule in the construction of a statute to adhere to the ordin- ary meaning of the words used and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further." Now the question is, "What is the meaning of the word " receive " as applied to the facts of this case ? I understand the facts to be these. Two men stole some fowls, which thej' put into a sack, and carried to the house of Wiley's father, for the purpose of selling them to "Wiley. All three went together from the house to an outhouse ; the bag was carried on the back of one of the thieves ; and when the policeman went in, the sack SECT. y.J EEGINA V. -WILBT. 451 was found lying on the floor unopened, and the three men around it as if thej' were bargaining, but no words were heard. Now I am of opinion that Wiley, under those circumstances, never did receive those fowls. I entirely agree that the question arises upon the possession ; there is no question of property here, for that remained in the original owner ; but it seems to me that the two men had the stolen articles in their possession as vendors adversely to "Wiley ; and that they never intended to part with that possession unless some bargain was con- cluded for the purchase of them. Upon this ground I am of opinion that Wiley never did " receive " the goods in the ordinary and proper sense of that word, and I think it is exceedingly important that offences should be so broadly and clearly defined that all persons may understand what is the offence with which they are charged. Talpourd, J. I am also of opinion that this conviction is wrong. The question turns on the word " receive" as applied to the facts of this case ; and it seems to me that the magistrate gave an improper direction to the jury on that subject, because he told them that the taking by Wiley of the two thieves with the stolen goods in the manner stated, to a stable over which he had control, for the purpose of traffiek- ing as to the purchase of the stolen property, was a receiving within the statute ; and I think it was not. The persons asserting the right of possession at that time were the two thieves ; and the position of Wiley, as a person negotiating for the purchase, excludes the idea of his having any possession. There was still for him a locus penitentiae; he might still have determined not to take the fowls ; and the whole matter was, I think, inchoate and incomplete. Williams, J. I am of opinion that this conviction is right. I think that the charge was made out against Wiley, if the jury were satisfied that he had possession of the property, knowing it to be stolen, with a corrupt and wicked mind. In this case there is no doubt as to his knowledge, or as to the corrupt and wicked mind ; and the on! j' ques- tion is, whether he had possession. Now, it appears to me that he had a common purpose with Straugham and Williamson of carrj-ing the stolen goods from the house to the stable ; and to effectuate that pur- pose it was necessary that one or more of them should have manual possession of the goods. Accordingly, one hand carried the sack ; and that was not Wiley's ; but as the three had a common purpose, I think that they were all agents of one another, and that the possession of the man who had the fowls was the possession of the prisoner. Platt, B. I concur in opinion with my brothers Talfourd and Martin, and think the conviction wrong. In order to convict Wiley as a receiver of stolen goods, I think that it was necessary to show that he actually received the goods, that is, that they were in such a position 452 CASES ON CEIMINAIi LAW. [CHAP. XXXVin. as to be under his dominion, exclusive of that of the thieves. If it was to be taken that, while the sack was carried from the house to the stable, and Wiley was lighting the carrier, the goods were in the joint possession of the three at that time, this difficulty must arise, — that the same act which constituted the joint possession by the hand of one of them would be a felonious asportavit by the one, and a felonious re- ceiving by the other ; the very same act would convict the two of entirely different offences. I think that cannot be ; and that as no bargain had been begun at that time, and the thieves retained the control and pos- session of the goods, — not a legal possession, of course, but the actual possession, — and as there was no intention on the part of the thieves of parting with the property, unless a bargain was made, it would be much too strong to say that a party who only contemplated becoming the pos- sessor if a bargain could be completed, was a receiver within the statute. Therefore, in my opinion, the direction of the chairman was wrong. Erle, J. I am of opinion that the conviction was right on two grounds. First, upon the facts found and left to the jury, I think that Wiley co-operated with the thieves in removing the stolen property -from the house to the stable, which was under his control, for the pur- pose of more securely bargaining and evading the ofiicers pt the law. If Wiley had actually taken part in carrying the goods, I believe in the minds of many of the judges there would be no doubt that he had had a joint possession with the thieves, which would be sufficient to convict him of the present charge ; and as he accompanied them, and lighted them to the stable, I think he did co-operate with them in trans- porting the goods as much as if he had helped to carry them. I found my opinion on the law, which has often been laid down, that where goods are stolen, and the removal from the owner's premises is com- plete, and the thief afterwards procures somebody to assist him in removing them again to a place of greater security, the person who so removes them is not liable to be convicted of larceny, because by the first removal the larceny was complete. A person who so co-operates is certainly a criminal within the intention of the law, and I think that the law is strong enough to reach him as a receiver of stolen goods. That is one ground of my opinion ; but I also attach a wider meaning to the word " receive " than some of my learned brothers are disposed to give to it. It appears to me that, with reference to acts of felonious receiving or taking, the rules of the civil law relating to possession have no application.^ Originally the person who received and assisted a 1 The correct use of the term " possession " requires extensive and precise know- ledge, and the introduction of the term into the description of a felony would give complexity and not clearness to the criminal law. (See Von Savigny on Possession by Sir Erskine Perry .J SECT, v.] EEGINA V. "WILEY. 453 thief, after he had committed a larceny, was held to be an accessary after the fact ; but then several statutes were passed, in consequence of the imperfect state of the law, which only rendered a person punishable who harbored the thief. By those statutes the guilty receipt of the stolen property was made punishable ; and I think that the word " receive," as applied to the goods, ought to be construed with reference to the other offence of harboring the thief. If a man harbors a thief with a view in anj' way to assist his escape, he is guilty ; and so, I think, if he harbors the goods for the purpose of assisting the thief, he is guilty of a felonious receiving within the meaning of the statute. If the owner of a stable authorizes thieves to deposit in that stable stolen goods, he is guilty of receiving them. That proposition by itself would probably not be contested ; and I think that, if he authorizes the thieves to go into the stable with the stolen goods, he is not the less a receiver because the thieves stay with the property. The earlier statutes clearly did not contemplate a bargain or consent to the transfer of the stolen propertj^ as essential to the offence of receiving ; for both in the 29 Geo. II. c. 30, and 2 Geo. III. c. 28, the crime of receiving is expressed thus : " Every person who shall privately buy or receive any stolen lead, &c., bj' suffering any door, window, or shutter to be left open or unfastened between sun-setting and sun-rising, for that pur- pose ; " so that the offence there contemplated involved no communi- cation with the thief at all after he had possession of the stolen goods, but applied to the practice of leaving open a place pf deposit previously known to the thieves. Such a case is certainly within the mischief of the statute ; and in 2 East P. C. 765 it is expressly laid down " that in order to constitute a receiver, generally so called, it is not necessary that the goods should be actually purchased by him ; neither does it seem necessary that the receiver should have any interest whatever in the goods ; it is sufficient if they be in fact received into his possession in any manner malo animo, as to favor the thief; " and the same law is to be found- in 2 Russ. on Crimes, 247, where several authorities are cited. It is there said : " If the prisoner received the property for the mere purpose of concealment, without deriving any profit at all, he is just as much a receiver as if he had purchased it." Per Taunton, J., E. V. Richardson. It seems to me, therefore, that the statute contem- plated precisely such a taking as is proved in this case. "With respect to the latter gi'ound of decision, I take into consideration the facts that the goods were taken into the stable, and were found lying on the ground there in the manner stated. Cresswell, J. I agree with those of the judges who think the con- viction right. The direction of the chairman is the matter to be looked at ; and the words " as above" embody in the summing up the 454 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. manner in which the goods were taken to the stable. Wiley carried the light, and he therefore assisted in the removal of the goods to the stable. If the goods had been carried by the thieves from one part of the owner's premises to another but not finally taken away, and the prisoner "Wiley had afterwards been called in to assist in removing them off the premises, he would undoubtedly have been guilty of lar- ceny ; there would have been a sufficient asportavit by him, and he would therefore have had a joint possession in so removing them. Substituting then for the deposit on the premises of the original owner a deposit elsewhere, the prisoner who assists in the removal of them must equally have a joint possession during that removal ; and knowing them to be stolen, he is, I think, while he is engaged in that act, a felonious receiver. If it were necessary, I should be also inclined to put the larger construction on the woi-d "receive" suggested by my brother Erie. Maule, J. I think that this conviction is wrong. Coleridge, J. I also think the conviction wrong. We must decide this case upon the direction given by the chairman at Sessions, which, if construed strictly, might confine the case to the mere fact of leading the thieves to the stable ; but I think it is far better and more con- venient to treat it as including all the circumstances stated upon the case. Looking then at the circumstances, it is to be observed that the case states no previous invitation by the prisoner, or communication between him and the thieves ; but he is in his father's house with the thieves, and he helps them to convey the goods to the stable, with, it may be assumed, the guilty purpose of buying, and so obtaining posses- sion of the stolen property, upon a contingency which never happened. Until some bargain had been concluded, he never intended to take (iharge of it, nor in fact, could he have taken possession. This there- fore is not a case of joint constructive possession ; nor did the thieves intend to admit him to any actual possession except upon a bargain which was never made. The charge of receiving must im-, port possession, actual or constructive ; and in this case I can find neither one nor the other. I entirely concur with my brother Martin in thinking that, in administering the process of the criminal law, -we ought to go on broad grounds of construction, intelligible to ordi- nary people. Patteson, J. Upon the whole, I am of opinion that this conviction is wrong. I do not mean to sa,y that it is necessary, in order to con- stitute a receiving, that the prisoner should in every case actually touch the stolen property, or that there may not be cases of joint possession bj'' the thief and receiver in which a conviction would be proper ; but I think that there must be such circumstances in the case as will show SECT, v.] EBGINA V. WILEY. 455 that the stolen property was under the control or power of the receiver either jointly with or separately from the thief; and in my opinion there is an absence of such circumstances in this case. Here the property was all the time in the manual possession of the thieves; Wiley conducted them to a place where it was proposed to bargain for the purchase, but he is apprehended before the sack is opened, or any- thing done. How far the fact that the sack was found lying on the floor of the stable and the three men round it might have justified a conviction, I cannot inquire, because the chairman directed the jury that the taking into the stable was in itself a receiving ; but I incline to think that fact would not have fixed the prisoner, because it was not intended that the goods should be taken by him until a bargain had been made. Alderson, B. I agree with the majority of the court. There is nothing to show that the goods were ever out of the manual possession of the thieves. I agree that there may be a joint possession by the thief and receiver ; and if the stolen articles had ever been out of the manual possession of the thieves, and had then been jointly conve3'ed by the three, Wiley might have been liable to be found guilty as a receiver ; but here the thieves take the goods into the house ; it does not appear what took place in the house ; then they come out, and Wiley admits them into a stable under his control. There is nothing to show that, before they went into the house, there was anj' previous communication. Now, those are all the facts which were left to the jury in this case, and I think that they were not sufficient for the purpose. The prisoner never had possession ; he intended to bargain for the property and to take possession if the bargain was completed, but he never did so. There must in these cases be a dividing line, which it is always difficult to define with accuracy ; but I think in this case the dividing line was not reached, and that the bench laid down an inaccurate rule to guide the jury. Parke, B. I also think the conviction wrong. It is our duty to confine ourselves to the case submitted to us ; and the question reserved is whether the conviction is right, the bench having told the jury " that the taking of Straugham and Williamson with the stolen goods, as above, by Wiley into the stable, over which he had control, for the purpose of negotiating about the buying of them, he well knowing the goods to have been stolen, was a receiving of the goods by him within the meaning of the statute." We afe not to speculate whether the three •were participes criminis; the word " receive " must be understood in its ordinary signification, and must mean a taking into possession, actual or constructive. Here, I think, there is no proof that the property ever got into the possession of Wiley at all ; certainly none by his taking 456 CASES ON CRIMINAL LAW [CHAP. XXXVUL Williamson and Straugham into the stable. He never touched the goods, and they never intended to part with the possession of them except upon the contingency of his becoming a purchaser, which did not happen. The only question is, whether by letting the thieves with the goods into the stable, he received the goods. I think that there must be a re- ceiving of the goods into possession as distinct in some way from the receiving of the thief ; and that the receiving of the thief with the goods into a house is not a receiving of the goods within the statute, in a case like this, any more than it would be in the case of a thief received into a house with a stolen watch in his pocket. Lord Campbell, C. J. I agree with those of the judges who think the conviction right, and concurring in their reasons, I have little to add. I think that there is a receiving within the statute wherever a person, knowing goods to be stolen, has possession of them for a bad purpose. It is whoUj' immaterial whether he has anj"^ propertj' in them ; and if we look to analogies derived from the Statute of Frauds, or the rules relating to actions of trespass or trover, our judgment is likely to be misled. The material question is, whether there has been a possession malo animo; and all the judges, I believe, are of opinion that there may be a sufficient possession, though there is not a manual possession. Now, what are the facts from which it may be said that Wiley had possession ? The sack was brought to his father's house, and he enters into a common purpose with the thieves of carrj-ing the goods from the house to the stable, over which he had control, for the purpose of bargaining, and that was an illegal purpose. Then had not Wiley possession for that purpose ? The thieves had no intention of then finally parting with the possession ; but they had the common purpose of carrying the goods into the stable. Straugham carried the sack ; but the possession of Straugham was also the possession of Williamson, and if of Williamson, why not of Wiley also? he went before with the candle. Suppose he had assisted in the very act of carrj-ing it, would he not have had possession? And does it signify what part each took in carrying out the common purpose ? No doubt there may be a joint possession by the thieves and the alleged receiver; and it seems to me that, during that removal, Wiley certainly had such a joint possession of the stolen property ; but I cannot stop there. Upon a fair construction of this case, I think that the whole transaction was laid before the jury, and that we are to express our opinion upon the whole case. Then, what follows? The sack is found lying in the stable, no one touching it ; it is not in the actual manual possession of any one of the three, but in my opinion, quite as much in the posses- sion of Wiley as of the others. I cannot say that there can be no possession by the receiver unless the thieves had intended permanently SECT, v.] KEGINA V, WOODWARD. 457 to part with the possession ; and so I think the verdict warranted by the evidence of what occurred in the stable. Conviction reversed. REGINA V. WOODWARD, 9 Cox C. C. 95 [1862]. COURT OF CRIMINAL APPEAL. Case reserved for the opinion of the Court of Criminal Appeal. At the Quarter Sessions of the Peace for the County of WUts, held at Marl- borough, on the 16th day of October, 1861, before me, Sir John Wither Awdry, Bart., and others my fellows, Benjamin Woodward, of Trow- bridge, in the County of Wilts, dealer, was found guilty of receiving stolen goods, knowing" them to have been stolen, and was thereupon sentenced to nine calendar months' imprisonment with hard labor, and the prisoner now is undergoing his sentence. The actual delivery of the stolen property was made by the principal felon to the prisoner's wife, in the absence of the prisoner, and she then paid 6(Z. on account, but the amount to be paid was not then fixed. Afterwards the prisoner and the principal met and agreed on the price, and the prisoner paid the balance. Guilty knowledge was inferred from the general circumstances of the case. It was objected that the guilty knowledge must exist at the time of receiving, and that when the wife received the goods the guilty knowledge could not have come to the prisoner. The Court overruled this objection, and directed the jury that until the subsequent meeting, when the act of the wife was adopted by the prisoner and the price agreed upon, the receipt was not so complete as to exclude, the effect of the guilty knowledge. If the Court shall be of opinion that the circumstances before set forth are sufficient to support a conviction against the prisoner for the felonious receipt, the conviction is to stand confirmed ; but if the Court shall be of a contrary opinion, then the conviction is to be quashed. J. W. AWDKT. • ••••••'• Erle, C. J. The argument of the learned counsel for the prisoner has failed to convince me that the conviction was wrong. It appears that the thief brought to the premises of the prisoner the stolen goods 458 CASES ON CRIMINAL LAW. [CHAP. XXXVIII. and left them, and that sixpence was paid on account of them by the prisoner's wife, but .there was nothing in the nature of a complete re- ceipt of the goods until the thief found the husband and agreed with him as to the amount, and was paid the balance. The receipt was complete from the time when the thief and the husband agreed ; till then the thief could have got the goods back again on payment of the sixpence. I am of opinion therefore that the conviction should be affirmed. Blackbdrn, J. The principal felon left the stolen property with the wife as the husband's servant, but the Court below, as I understand the case, doubted whether the husband could be found guilty of feloni- ously receiving, as he was absent at the time when the goods were de- livered to the wife, and could not then know that they were stolen. It is found that, as soon as the husband heard of it, he adopted and rati- fied what had been done, and that as soon as he adopted it he had a guiltj- knowledge ; he therefore at that time received the goods know- ing them to have been stolen. Keatino, J. I am of the same opinion. The case finds that the agreement as to the price was not complete till the thief and the hus- band agreed. I think therefore that the receipt was not complete till then, and that the conviction was right. If we were to hold that the conviction was not right, the consequences would be very serious. Wilde, B. I read the case as showing that the wife received the goods on the part of the prisoner her husband, and that act of her was capable of being ratified on the part of the prisoner. If so, that makes the first act of receiving by the wife his act. In the case of Regina v. Dring and Wife, the only statement was " that the husband adopted his wife's receipt," and the Court thought the word " adopted " capable of meaning that the husband passively consented to what his wife had done, and on that ground quashed the conviction. But here the pris- oner adopted his wife's receipt by settling and paying the amount agreed on for the stolen goods. Mbllob, J., concurred. Conviction affirmed. EEGINA V. ROGERS, 37 L. J. M. C. 83 [1868]. CROWN CASE RESERVED. Case reserved by the learned Assistant Judge for Middlesex. John Rogers, Richard Irwin, Alfred Johnson, and Charles Byatt SECT, v.] EEGINA V. EOGEES. 459 ■were tried before me at the Sessions for Middlesex, on the 3d of March, 1868, for stealing and receiving a watch, the property of John Shaw. Byatt pleaded guilty ; Rogers was found guilty of stealing ; and Irwin and Johnson were found guilty of receiving with a guilty knowledge. John Rogers resided at Liverpool, and forwarded by railway a box containing the watch in question and several other stolen watches to the prisoner Byatt, and the box was delivered in due course to Byatt, in the County of Middlesex. The box was addressed to his house in the handwriting of Rogers, and a similar box, empty, with similar address in Rogers's handwriting, was found at Byatt's. That box was taken by Rogers to the railway office in Liverpool on the 13th of Jan- uary and booked as a parcel for London. Rogers was asked if he wished to pay the carriage, and he did so. The box was then for- warded in the ordinary manner. The box containing the articles named in the letter set out in the case (and among them the stolen watch in question) was sent by railway in the same manner on the 30th of January at ten o'clock in the morning, but the railway clerk could not say by whom it was brought to the office. The watch in question was stolen from the owner at Liverpool on the 29th of January about seven p. m. It was contended that as Rogers was not shown to have left Liverpool, the Court had no jurisdiction to try him. I told the jury that if they believed Rogers to have stolen the watch, his transmission of it into the county by the agency of the railway was sufficient to give the Court jurisdiction, although he did not personally convey it. It was proved that Rogers had advised Byatt of the transmission of the box by a letter found in Byatt's possession, which letter was as follows : — Liverpool, Jan. 30, 1868. I send you up the goods this morning. They are as follows: — £. s. 13 W. Leavers 15 12 4 W. Genevas 1 12 1 R. Leaver 6 1 R. Geneva 15 1 Red Case, 1 oz. 2 dwts 15 1 Red Slang, 1 oz. 17 dwts 2 5 Ditto 1 oz. 2 dwts 17 29 6 Try and deal this time without so much wrangling; you did not come down as vou promised. ' ^ Dick. 460 CASES ON CEIMINAL LAW. [CHAP. XXXVIII, Articles corresponding with this letter were contained in the box found at Byatt's. Irwin and Johnson were proved to have been at Byatt's house on the arrival of the box, and the jury found that they knew of the box and the contents having been forwarded by Rogers, and that they were present on its arrival, aiding and abetting Byatt in the receipt of the watch in question, they well knowing it to have been stolen ; but it was not proved that either of them had manual possession of it, all the pri- soners, Byatt, Irwin, and Johnson, having been taken into custody be- fore the box was opened. I have to ask this honorable Court whether, upon the facts here stated, the conviction of Rogers, Irwin, and John- son, or either of them, can in point of law be sustained. Kelly, C. B. With regard to the conviction of Rogers, the facts were, that the watch was stolen by him at Liverpool and forwarded by railway to Byatt in Middlesex, for the purpose of being sold and dis- posed of by him there. The question is, whether the possession of the watch, in contemplation of law, remained with Rogers. I think the authorit}' cited to us is conclusive. Constructive possession is deemed equivalent to actual possession in criminal as well as civil cases ; and here Rogers must be deemed to have retained the control over the arti- cle. Then, possession being thus retained by him, his conviction must be afHrmed. Then, as to Irwin and Johnson, the jury have found that they knew of the box having been forwarded by Rogers, and that they were present on its arrival, aiding and abetting Bj-att in the receipt of the watch, they well knowing it to have been stolen. Aiders and abet- tors in a felony can be indicted, tried, and convicted as principals ; therefore, as to them, the conviction must also be aflBrmed. The rest of the judges agreed. Corwiction affirmed. Section 6. Successive Receivings : Receiving from a Receiver. STATE V. IVES, 13 Iredell, 338 [1852]. Appeal from the Superior Court of Law of Currituck County, at the fall term, 1851, his honor Judge Settle presiding. The defendant was indicted for receiving stolen goods, and was con- victed upon the following counts in the bill of indictment : — 5th count. And the jurors, etc., do further present, that the said Josiah Ives, afterwards, to wit, on the 1st day of February, a. d. SECT. VI.] STATE V. IVES. 461 1851, in the county aforesaid, with force and arms, one bale of cotton, of the value of ten shillings, and one barrel of tar, of the value of six shillings, of the goods and chattels of said Caleb T. Sawyer, before then feloniously stolen, taken, and carried awaj-, feloniously did receive and hire, he, the said Josiah Ives, then and there well knowing the said goods and chattels to have been feloniously stolen, taken, and carried awaj', contrary to the form of the statute in such cases made and pro- vided, and against the peace and dignity of the State. 6th count. And the jurors, etc., do further present, that, at and in the county aforesaid, on the 1st day of March, 1851, certain goods and chattels, to wit, one bale of cotton, of the value of ten shillings, and one barrel of tar, of the value of six shillings, of the goods and chattels of Caleb T. Sawyer, feloniously were stolen, taken, and carried away, by some person to the jurors unknown ; and that the said Josiah Ives, afterwards, to wit, on the 2d day of March, 1851, in the county afore- said, the said bale of cotton and the said barrel of tar feloniously did have and receive, he, the said Josiah Ives, on the day and year last afore- said, in the county aforesaid, well knowing the said bale of cotton and the said barrel of tar to have been theretofore feloniously stolen, taken, and carried away, contrary to the form of the statute in such case, made and provided, and against the peace and dignit5' of the State. There was a motion in arrest of judgment, which was overruled. Judgment against the defendant, from which he appealed to the Supreme Court. Peaeson, J. The defendant was convicted upon the fifth and sixth counts in the bill of indictment ; and the ease is here upon a motion in arrest of judgment. The fifth count was abandoned by the Attorney- General, and the question is upon the sixth count. A receiver of stolen goods is made an accessary by the statute of Anne ; and it is provided, by another section of that statute, that, if the principal felon escapes and is not amenable to the process of the law, then such accessary may be indicted, as for a misdemeanor. This statute was so construed as to require, in the indictment for a misde- meanor, an averment that the principal felon was not amenable to the process of the law. Foster, 373. Our statute. Rev. Stat. c. 34, §§53 and 54, is taken from the statute of Anne, and has received a similar construction. Groff s Case, 1 Mur. 270, and see the remarks of Hen- derson, judge, in Good's Case, 1 Hawks, 463. The objection taken to the indictment, is the absence of an averment, that the principal felon is not amenable to the process of the law ; and it is insisted that, as the principal felon is alleged to be some person to the jurors unknown, it could not be averred that he had " escaped and eluded the process of the law," in the words used by our statute, 462 CASES ON CKIMXNAL LAW. [CHAP. XXXVIII. and it was urged that the statute did not apply to a case of the kind. The Attorney-General in reply took the position, that the averment that the principal felon was some person to the jurors unknown, neces- sarily included and amounted to an averment, that he had escaped and eluded the process of the law, so as not to be amenable to justice. This would seem to be so ; but we give no definite opinion, because there is another defect in the count, which is clearly fatal. After averring that the cotton and tar had been stolen by some per- son to the jurors unknown, the indictment proceeds : "Afterwards, etc, the said Josiah Ives, the said bale of cotton and the said barrel of tar feloniously did have and receive, well knowing the said bale of cotton and barrel of tar to have been theretofore feloniously stolen," etc. There is no averment from whom the defendant received the cotton and tar. We cannot imply that he received them from the person who stole them. It may be that he received them from some third person ; and this question is presented : A. steals an article, B. receives it, and C. re- ceives it from B. Does the case fall within the statute? We think not. The statute obviously contemplates a case where goods are received from the person who stole them ; he is termed the principal felon. In the case put above, A. is the principal felon, B. is his accessarj^ but C. is a receiver from a receiver, — an accessarj' of an accessary. In fact, it cannot be said whether A. or B. is the principal felon in regard to him. The statute does not provide for such a case. It makes the receiver an accessary ; and in case the principal is not amenable to the process of law, such accessary may be prosecuted as for a misdemeanor. Con- sequently it is necessary to point out the principle, and the matter is involved in the doctrine of " principal and accessary." This and many other omissions are, in England, remedied hy the statutes, Will. III. and Geo. II., by which "the act of receiving" is made a substantive felony, without reference to the person who stole or the person from whom the goods are received. Under those statutes, the fifth count, which the Attorney-General has properly abandoned, would be good ; for the offence is to " receive and have " stolen goods. We have not adopted those statutes. Of course the decisions and forms in the mod- ern English books cannot aid us. Duncan's case, 6 Ired. 98, presents another instance, to provide for which we have no statute. Per Cueiam. Judgment below reversed, and judgment arrested. SECT. VI.T EBGINA V. REAEDON. 463 REGINA V. EEARDON,' L. E. 1 C. C. R. 31 [1866]. CROWN CASE RESERVED. The following case was stated by Lush, J. : — The prisoners were jointly indicted before me at Manchester for re- ceiving stolen goods knowing them to have been stolen. There was no evidence of a joint receipt ; but Reardon, who kept a house of her own, was in the practice of receiving stolen property from the thief or his accomplice and of selling it to Bloor, who also had a place of business of his own. The jury found each guilty. I sentenced Bloor ; but an objection having been taken that upon the indictment a conviction of both could not stand I respited the sentence against Reardon and re- served for the opinion of the Court of Criminal Appeal the question whether the conviction against her is sustainable upon this indictment. This case was argued on the 28th of April, 1866, before Pollock, C. B„ Bramwell, B., Btles, J., Pigott, B., and Lush, J. Cottingham for the prisoner Reardon. The question in this case is whether, upon an indictment of two persons for a joint receipt, both can be convicted when no joint receipt but only a separate receipt at different times is proved. Before the 14 & 15 Viet. c. 100, if two or more persons were jointly indicted for receiving, and no joint act of re- ceiving was proved, the prosecutor was put to his election and could only convict one of them ; R. v. Messingham.^ The 14 & 15 Vict. c. 100, § 14, remedied this inconvenience to some extent ; and although that section is now repealed it has been re-enacted by the 24 & 25 Vict. c. 96, § 94, which provides that " if upon the trial of any two or more persons indicted for jointly receiving any property, it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict upon such indictment such of the said persons as shall be proved to have re- ceived any part or parts of such property." That section however only applies to a separate receipt of different parts of the stolen property, at 1 The 24 & 25 Vict. c. 96, § 94, enacts that, "If upon the trial of any two or more persons indicted for jointly receiving any property it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict upon such indictment such of the said persons as shall be proved to have received any part or parts of the said property." " 1 Moody C. C. 257. 464 CASES ON CRIMINAL LAW. [CHAF. XXXVIII. the same time leaving the old law to operate where there has been a separate I'eceipt of the whole at successive times. [Pollock, C. B. A man who receives the whole of the stolen prop- ertj' receives a part ; for the whole embraces all the parts. Bramwell, B. The old-fashioned indictment would have alleged that the two prisoners " then and there" {i. e., at the same time and place) received the goods ; and in this case that averment could not have been proved.] This point was raised in Regina v. Dring ^ but was not decided. By the 24 & 25 Vict. c. 96, § 93, any number of receivers at different times of the stolen property or of any part thereof may be charged with substantive felonies in the same indictment ; but the proper mode of carrj'ing out that enactment is to indict them for separate receipts in different counts, and not as was done here to indict them for a joint re- ceipt in a single count. Pollock, C. B. The object of the enactment in question was to do awaj' with certain technical objections which prevailed previously. By the 93d section anj' number of receivers of the same stolen property or of different parts of it may be indicted together, although there has been no joint receipt ; and it is clear that under that section no distinc- tion is made between separate receipts at the same time and separate receipts at different times. That section throws light on the 94th ; and although there is some color for the objection we are all of opinion that no distinction can be made for the purposes of that section between a separate receipt of the whole and a separate receipt of part of the stolen property. It would be absurd to convict both prisoners if it were proved that each separately received a part, and to acquit one if it were proved that each separately received the whole.'^ Conviction affirmed. 1 Dears. & B. C. C. 329. 2 [See also Rex v. Messingham, 1 Moody C. C. 257 (1830) and Regina v. Dovey, 2 Den. C. C. 86 (1851), — both cases of pleading, but both distinctly implying, how- ever, that a second receiver is indictable in the common form under the ordinary re- ceiving statutes. In each of these cases there was a receiving from a receiver. In each case the first and second receiver were indicted jointly. And it was held, and very properly, that as their acts were separate they were guilty of no joint act and could not under the then existing statutes be jointly indicted. The whole question, however, was treated merely as one of pleading or procedure, and there is no intima- tion in the opinions that the second receiver could not be indicted at all. If the case could have been disposed of upon the merits, namely, upon the point that the second receiver was guilty of no indictable offence, the court would have rested its decision upon that ground and would not have treated the question before it as a question of pleading or procedure, The treatment of these cases in Roscoe Crim. Evid. p. 19, supports the same conclusion. "Rex ti. Messingham," says that work, " shows that several persons cannot be convicted of distinct felonies which are charged in an in- dictment as a joint felony. . . . But now by the 24 & 25 "Vict. c. 96, § 94, . . . thia difficulty is removed."] SECT. VII.] COMMONWEALTH V. BEAN. 465 Section 7. The Question of ImcH Causa. REX V. RICHARDSON, 6 C. & P. 335 [1834]. FoTiE of the prisoners were indicted for sacrilegiously breaking and entering a chapel, called St. Philip's Chapel, in the parish of Clerken- well, and stealing therein certain things. The other prisoner was charged as receiver. • • •■•••■ # Taunton, J. (in summing up with respect to the receiver), said: Whether he made any bargain or not is a matter of no consequence. If he received the property for the mere purpose of concealment with- out deriving any profit at all he is just as much a receiver as if he had purchased it. It is a receiving within the meaning of the statute. Verdict, three of the prisoners guilty and two of them not guilty. COMMONWEALTH v. BEAN, 117 Mass. 141 [1875]. Complaint on the Gen. Sts. c. 161, § 43, charging the defendant with receiving a pair of ej'e-glasses, knowing them to have been stolen. At the trial in the Superior Court on appeal before Lord, J., there was evidence tending to show that the defendant received the eye- glasses from one Daniels, knowing them to have been stolen, as a friendly act and without emolument or benefit to the defendant or any intent to receive benefit on his part ; but only that they were taken to aid Daniels in concealing them. The defendant asked the judge to rule that if such was the case it did not constitute the offence of receiving stolen goods within the stat- ute. The judge declined so to rule but instructed the jury that the de- fendant's motive was immaterial if he received them knowing them to have been stolen and for the purpose of aiding Daniels in concealing them. The jury returned a verdict of guilty and the defendant alleged exceptions. Endicott, J. The statute provides that whoever receives or aids in the concealment of stolen goods, knowing the same to have been stolen, shall be punished. Gen. Sts. c. 161, § 43. The ruling at the trial was coiTect. There was evidence that the defendant received the eye- 30 466 CASES ON CBIMliffAL LAW. [CHAP. XXXVIIL glasses from Daniels, knowing them to have been stolen, and aided Daniels in their concealment. That he did this as a friendlj' act to Daniels without any benefit or intent to receive benefit himself is immaterial. Exceptions overruled. Section 8. Guilty Knowledge. COMMONWEALTH v. LEONARD, 140 Mass. 473 [1886]. Indictment in three counts. The first count alleged that on July 1, 1883, certain articles, the goods, chattels, and property of the Boston and Lowell Railroad Corporation, were feloniously stolen, and that the defendant afterward, on the same day, " the goods, chattels, and prop- erty aforesaid, so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive and have, and did then and there aid in the concealment of the same," he " well knowing the said goods, chat- tels, and property to have been feloniously stolen, taken, and carried away." The second and third counts were similar in form, but the property was in each differently described and at a different date, namely, on August 1, 1883, and September 1, 1883, respectively. The defendant asked the judge to instruct the jury as follows : " 1. If the jury are not satisfied beyond a reasonable doubt that the accused knew that the goods were stolen he is entitled to an acquittal. 2. To justify a conviction it is not sufficient to show that the accused had a general knowledge of the circumstances under which the goods were stolen, unless the jury are also satisfied that he knew that the -circum- stances were such as constituted larceny." The judge refused to give these instructions and upon the matters enibraced therein instructed the jury as follows : — " He must know that the goods were stolen but he does not need to know the hour nor day they were stolen ; he must undoubtedly have notice which would put him on his guard as knowledge that the goods were acquired and turned over to him by a person not taking them by mistake, not by right, but taking them as thieves take them, that is, for' the purpose of defrauding the railroad and cheating them out of their property." SECT. VIII.] BEGINA V. EYMBS. 467 The defendant's counsel here suggested " by larcenj'," and the judge gave this further instruction : — " By the taking and carrying away of property it is the fraudulent taking away of the property of another for the purpose of converting it ■^to the taker's use to deprive the owner of it. These goods must have been taken that way and were stolen goods ; they must have been taken by McCarty as thieves take them, not by mistake or accident, or ■by taking from those who had no right to give, but taking when he knew that he had no right to take them." The jury returned a verdict of guiltj' on the third count and of not guilty on the other counts, and the defendant alleged exceptions. Field, J. . . . The offence of receiving stolen property, knowing it to have been stolen, must be considered as distinct from the offence of receiving embezzled property knowing it to have been embezzled, Pnb. Sts. c. 203, §§ 48, 51, although embezzlement under our statutes has been held to be a species of larceny. Commonwealth v. Pratt, 132 Mass. 246. The punishments of the two offences may be different, as the offence of receiving embezzled goods maj' be punished by a iine without imprisonment. If the property had actually been stolen, a be- lief on the part of the defendant that it had been stolen is tantamount to knowledge. If the defendant knew all the facts and the facts consti- tuted larceny as distinguished from embezzlement, it would be no defence that the defendant thought that the facts constituted embez- zlement. If the defendant did not know the facts but believed from the circumstances that the property had been either embezzled or stolen, and it had been actually stolen, it was competent for the jury to find the defendant guilty of the offence charged. The second request for instructions was therefore rightly refused. The first request for instructions states the law with substantial cor- rectness. It is contended that the instructions given on tl^is point, rightly construed, are the same in effect. We find it unnecessary to decide whether the case called for a more careful definition of larceny as distinguished from embezzlement or from wilful trespass. JExceptions sustained. EEGINA V. RYMES, 3 C. & K. 326 [1853]. Receivtng. The indictment was in the following form: "The jurors, etc., present that Richard Rymes, of, etc., on, etc., at, etc., one cheese, of the value of thirteen shillings, of the goods and chattels 468 CASES ON CRIMINAL LAW. [CHAP. XXXVni. of James Pollard, then lately before unlawfully, knowingly, and de- signedly obtained from the said James Pollard by false pretences, unlawfully did receive and have, he the said Richard Rymes then well knowing the said goods and chattels to have been unlawfully, know- ingly, and designedly obtained from the said James Pollard by false pretences, against the form of the statute," etc. It was proved by a person named Richard Smith that he had gone to the shop of Mr. Pollard and had obtained a cheese bj' false pre- tences ; and with respect to the prisoner's receiving the cheese, he said, " I took the cheese to Rymes, who keeps a beer house ; he asked what I wanted for it ; I said I wanted Ad. a pound, and he gave me 4s. for it ; and I paid him back some of the money for beer." It was proved by Mr. Pollard that the cheese was worth 13s. 8d., and a con- stable named Wright proved that he found part of the cheese in the thatch of the prisoner's house. Carrington, for the prisoner, addressed the jury, and contended that the allegation that the prisoner knew that the cheese had been obtained by false pretences was not proved. Buying an article at an under price had been held to be a fact from which the jury might infer that the buj'er knew it to be stolen, but here Smith had proved everything that had occurred, and it was quite clear that the prisoner could not have had the slightest knowledge that the cheese was obtained by false pretences, or obtained from Mr. Pollard. Vaughan Williams, J., left the case to the jury on the question, whether the prisoner knew that the cheese had been obtained by false pretences ; and directed the jury, that if the prisoner did not know that the cheese was obtained by false pretences, they ought to acquit him. Yerdid, not guilty. EEGINA V. HARRIET and ANTHONY ADAMS, 1 F. & F. 86 [1858]. Laecent and Receiving. The woman was charged with having stolen, and the man (her husband) with having received, eleven mining tools. The evidence was that the woman had picked them up from a rubbish-heap, where they had been placed (not as rubbish), on the premises of the prosecutor, and delivered them to the man, telling him how she had obtained them, and that he had sold them as old iron. Crowder, J. {to the jury) , after stating to them the law as to the duty of a finder of property, as applicable to the charge against the SECT. IX.J EBGINA V. ODDY. 469 woman, and leaving the case as against her with them : Before j-ou can convict the man you must be satisfied that he knew that the goods had been stolen. It may be that he did not know (upon the law as I have laid it down, as to the duty of the finder of property to take proper means to find the owners) that this was a theft.^ If so, he cannot be guilty of receiving with a guilty knowledge of the goods being stolen. Both guilty j recommended to m.ercy; fourteen days' imprisonment- Section 9. The Question of Knowledge. REGINA V. WHITE, 1 F. & F. 665 [1859]. Receiving. The prisoner was charged with receiving lead, the prop- erty of the Queen, he well knowing it to have been stolen. Bramwell, B. {to ihejury)\ The knowledge charged in this indict- ment need not be such knowledge as would be acquired if the prisoner had actually seen the lead stolen ; it is suflflcient if you think the cir- cumstances were such, accompanying the transaction, as to make the prisoner believe that it had been stolen. Quilty. REGINA «. ODDY, 5 Cox C. C. 210 [1851]. COURT OF CRIMINAL APPEAL. [Indictment for receiving stolen goods.] .■••■•••• At the trial it was proved that the cloth mentioned in the indictment had been stolen on the night between the 2d and 3d of March, 1851, from a mill, and was the property of the party named in that behalf in the indictment. It was further proved that the defendant was found in possession of it on the 10th of March, 1851, under circumstances which it was suggested showed an attempt to conceal the possession. It was further proved that the defendant, upon the cloth being discovered in 1 That is, it is apprehended that the other prisoner had not taken proper means to find the owner. [Reporter's note.] 470 CASES ON CRIMINAL LAW. [CHAP. XXXVm. his possession, declared that he had obtained the cloth from a woman who was called as a witness at the trial on the part of the prosecution, and who swore that it had not been obtained from her. The counsel for the prosecution proposed further to prove that the defendant's house had been searched within an hour after the property named in the in- dictment was found in his possession, and that upon this search two other pieces of cloth were found in the house ; and also, that on the 13th of December, 1850, the defendant had been in possession of two more pieces of cloth, and that these four pieces of cloth had been stolen on the night between the 4th and 5th of December, 1850, from another mill, and were the property of different owners, no one of whom was connected with the owner of the cloth mentioned in the indictment. The counsel for the defendant objected to the reception of this evidence. Lord Campbell, C. J. I am of opinion that the evidence was as little receivable under the 3d count for receiving as upon the 1st or 2d counts for stealing. It would be evidence to prove that the prisoner is a very bad man, and likely to commit such an offence ; but by the law of Engr land one offence is not allowed to be given in evidence to prove another. How can the possession of other stolen goods show any knowledge that the particular goods mentioned in the indictment were stolen? It can lead to no such conclusion. With regard to the admission in evidence of proof of previous utterings upon indictments for uttering forged notes, I have always thought that those decisions go a great way, and I am by no means inclined to apply them to the criminal law generally ; but certainly evidence of that description shows the prisoner skilful in dealing with forged paper, and that may lead to the inference that he knew the particular notes to be forged ; but there is no ground upon which, from evidence like this, the scienter can be inferred upon a charge of feloniously receiving stolen goods. A similar point was prop- erly decided by my brothers Alderson and Talfourd, in Sirrell's case, at Liverpool ; and I think this evidence was improperly admitted, and that the conviction must be quashed. Alderson, B. In the cases of uttering, the act received in evidence is of the same nature as that which it is to explain ; but the evidence which is offered to prove a guilty knowledge on this occasion is quite consistent with the supposition that on the former occasions the prisoner himself stole the goods. Here the prisoner is found not to have stolen, but to have received, the goods. The other judges concurring, Conviction reversed. CHAP. XXXIX.ji EBX V. WILSON AND OTHEKS. 471 CHAPTER XXXIX.1 PoECiBLE Entry. EEX V. WILSON AND ELEVEN OTHERS, 8 D. & E. 357 [1799]. This was an indictment for a forcible entry and detainer at common law. The first count stated that the defendants on, etc., in the parish, of St. Peter, in the county of the borough of Carmarthen, with force aind arms, unlawfully and injuriously, and with a strong hand, entered into a certain mill, and certain lands and houses, and the sites of a certain mill and certain houses, with the appurtenances, being in the possession of M. Lewis, and him the said M. Lewis from the pos- session of the said premises unlawfully and injuriously, and with a strong hand, expelled and put out, and unlawfully and injuriously kept him out, and still keep him out, against the peace, etc. The third count was to the same effect, only varying in the description of the premises. The second and fourth counts were the same as the first and third respectively, only omitting the words " with a strong hand." To all these counts there was a general demurrer, and joinder in demurrer. [Opinions by Lord Kenyon, C- J-, Ge^ose, J., Lawbence, J., and Le Blanc, J.] ■ ■•■■■••• Judgment for the Crown on the first, and third counts. On a subsequent day in the term, Lord Kenyon, C. J., said : We wish that the grounds of our opinion may be understood. We do not in the least doubt the propriety of the decision in this case the other day, but we desire that it may not he considered as a precedent in other cases to which it does not apply. Perhaps some doubt may hereafter arise respecting what Mr. Serjeant Hawkins says, that at common law the party may enter with force int© that to which he has a legal title. But -vyithout giving any opinion concerning that dictum one way or the other, but leaving it to, be proved or disproved whenever that question shall arise, all that we 1 [See as to this offence at common law, 1 Hawkins, P. C. 495 : Of Forcible B«- tries and Detainers.} 472 CASES ON CBIMINAl, LAW. [CHAP. XXXIX. wish to say is that our opinion in this case leaves that question un- touched, it appearing by this indictment that the defendants unlawfully entered, and therefore the Court cannot intend that they had any title.i HARDING'S CASE,» 1 Gkeenleaf, 22 [1820]. The defendant was indicted for that he "with force and arms, to wit, with an axe and auger, unlawfully, violently, forcibly, injuriously, and with a strong hand did enter into the dwelling-house of Joseph Gate in said Portland, and in his actual and exclusive possession and occupation with his family ; and the said Harding did then and there unlawfully, violently, forcibly, injuriously, and with a strong hand bore into said dwelling-house with said auger, and cut away a part of said house, and stove in the doors and windows thereof with said axe, said Joseph's wife and children being in said house, thereby putting them in fear of their lives," etc. Feeble, J. ... The indictment is at common law. If the facts charged, therefore, do not constitute an indictable offence at common law, no sentence can be pronounced upon the defendant. The earlier authorities do sanction the doctrine that at common law, tf a man had a right of entry in him, he was permitted to enter with force and arms where such force was necessary to regain his pos- session. (Hawk. P. C. c. 64, and the authorities there cited.) To remedy the evils arising from this supposed defect in the common law, it was provided by Stat. 5, Rich. II. c. 7, that " none should make any entry into any lands or tenements, but in cases where entry is given by the law ; and in such cases, not with strong hand, nor with multitude of people, but only in a peaceable and easy manner." The anthorities are numerous to show that for a trespass — a mere civil injury, unaccompanied with actual force or violence, though alleged to have been committed with force and arms — an indictment will not lie. But in Rex v. Bathurst, Sayers' Report, 226, the Court held that for- cible entry into a man's dwelling-house was an indictable offence at common law, though the force was alleged only in the formal words, vi et armis. In Rex v. Bake, 3 Burr. 1731, it was held that for a forcible entry an indictment will lie at common law ; but actual force > [See Rex v. Bathurst, Sayer's Report, 225 (1755).] ii. [See Commonwealth v. Shattuck, 4 Cash. 141 (1849).] CHAP. XXXIX.] KEX V. BAKE AND OTHERS. 473 must appear on the face of the indictment, and is not to be implied from the allegation that the act was done vi et armis. In the King v. Wilson, 8 D. & E. 357, an indictment at common law charging the defendant with having unlawfuUj- and with a strong hand entered the prosecutor's mill and expelled him from the possession, was held good. In this latter case, Lord Kenyon remarks, " God forbid these facts, if proved, should not be an indictable offence ; the peace of the whole country would be endangered if it were not so." The case at bar is a much stronger one than either of those cited. The peace of the State would indeed be jeopardized if any lawless individual, destitute of property, might, without being liable to be indicted and punished, unlawfully, violentlj', and with a strong hand, armed with an axe and auger, forcibly enter a man's dwelling-house, then in his actual, exclusive possession and occupancy with his wife and children, stave in the doors and windows, cutting and destroying, and putting the women and children in fear of their lives. REX V. BAKE and OTHERS, 3 BuEE. 1731. Mk. Dunning showed cause why an indictment should not be quashed. He called it an indictment for a forcible entry, and argued " that an indictment for a forcible entry may be maintained at common law." He cited a case in Trin. 1753, 26, 27 Geo. II. B. R. Rex v. Brown and Others ; and Rex v. Bathurst, Tr. 1755, 28 Geo. II. S. P. But, N. B. This indictment at present in question was only for {oi et armis) breaking and entering a close (not a dwelling-house) and un- lawfully and unjustly expelling the prosecutors, and keeping them out of possession. Mr. Justice "Wilmot. No doubt an indictment will lie at common law for a forcible entry, though they are generally brought on the Acts of Parliament. On the Acts of Parliament, it is necessary to state the .nature of the estate, because there must be restitution ; but they may be brought at common law. Here the words " force and arms" are not applied to the whole ; but if they were applied to the whole, yet. it ought to be such an actual force as implies a breach of the peace, and makes an indictable offence. 474 CASES ON CKIMINAL LAW. [gHAP. XL. And this I take to be tHe rule, " That it ought to appear upon the faqe of the indictmeut to be an indictable offence." Here indeed are sixteen defendants. But the number of the defend- ants makes no difference in itself; no riot, or unlawful assembly, or anything of that kind is charged. It ought to amount to an actual breach of the peace indictable, in order to support an indictment ; for otherwise it is only a matter of civil complaint., And this ought to appear upon the face of the indictment. Mr. Justice Yates concurred. Here is no force or violence shown upon the face of the indictment, to make it appear to be an actual force indictable, nor is any riot charged, or any unlawful assembly. There- fore the mere number makes no difference. Me. Justice Aston concurred. The true rule is, " That it ought tq appear upon the face of the indictment to be an indictable offence." CHAPTER XL. BUEGLART AND OtHER BREAKINGS.^ Section 1. The Building. PEOPLE V. EICHARDS, 108 N. Y. 137 [1888]. Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 30, 1887, which aflSrmed a judgment of the Court of Oyer and Terminer 1 " Hamsoena " quod domus invasionem Latine sonat fit pluribus modis. Ham- socna est si quis alium in sua vel alterius domo cum haraido •• assailiaverit vel per- sequatur, ut portam vel domum sagittet vel lapidet vel colpum [! eulpam] ostenaibi- lem undecunque faciat. Hamsoena est vel hame fare si quia premeditate ad domum » Hen. I, Ixxx. lOj Thorpe, 1. 587. — [Stephen's note.J •> Haraidum — heri [hereV] relta. The Bavarian laws took a distinction between litre reita and heinusucht. For here reita there must be at least forty-two armed men. If there were less it was heimzucht (Thorpe's Glossary). In Ina's laws (13 Thorpe's, 48) it is said, " Thieves we call as far as 7 men; from vii. to xxxv. a Moth ; after that it is a here." — [Stephen's note.] SECT. I.] PEOPLE V. KICHAEDS. 475 of Broome County, entered upon a verdict, convicting the defendant of the crime of burglary in the third degree. (Reported below, 44 Hun, 278). The material facts are stated in the opinion. Peckham, J. The defendant was charged in the indictment with having committed the crime of burglary in the third degree in that on the 23d day of October, 1884, with force and arms in the night time, at the city of Binghamton, he broke and entered the granite and stone building, erection, and inclosure, known as the Phelps vault, the same being a building, erection, and inclosure for the interment of the dead, and being the property of, etc. Upon the trial the People proved that this vault was made of granite at a cost of |5,000. It was built entirely above ground on a stone foundation, and the structure was ten feet four inches wide, sixteen feet four inches long, ten feet sis inches high, .and covered with a granite roof. The entrance was by a granite door protected by a bronze gate. The interior of the vault immediately inside of the interior granite door has a compartment about six feet in depth and eight feet across, and is unoccupied. At the rear of this compartment there is a partition across the width of the vault, and behind that partition the bodies are inclosed. There are twelve compartments, or graves, as they are described bj' one of the witnesses, and seven of these graves were occupied at the time of the commission of the alleged burglary by the defendant. In front of each grave was a marble slab bearing the name and date of death and the age of the occupant. Other evidence was given in the ease con- necting the defendant with the commission of the act of breaking into this structure and examining the dead body of Robert S. Phelps, which was therein contained. His purpose in doing so it is not material to inquire in regard to, under the view which we take of the statute as to burglary. At the close of the case for the People, defendant's counsel asked the Court to direct or advise the jury to find a verdict of not guilty in behalf of the defendant Richards upon the grounds, — First. That the acts proven in this case are not within the provi- sions of the Penal Code. eat ubi suum hostem esse siet, et ibi eum invadat in die vel nocte hoc faciat ; et qui aliquem in molinum vel ovile fugientem prosequitur hamsocna adjudicatur. Si in curia vel dorao seditione orta bellum eciam subsequatur et quivis aliuiii fugien- tem in aliam domum infuget, si ibi duo tecta sint hamsocna reputatur. Inflht vel insocna est quod ab ipsis qui in dome sunt contubernales agitur." [Cited in Stephen, History Criminal Law of England, vol. 1, p. 56. Upon this Stephen remarks; " Hamsocna was no doubt the earlier formi of burglary." — Ed.] 476 CASES ON CEIMINAL LAW. [CHAP. XL. Second. Upon the ground that the vault or grave is not a building ■within the meaning of the statute which is capable of being burglarized. Third. That the proof in the case wholly failed to sustain the offence charged in the indictment. The Court denied the motion and held that it was a case for the jury. We think the Court erred in that decision. We do not believe that the structure described in the indictment and the proof is within the statute describing the crime of burglary in the third or any degree. As was stated by Andrews, J., in People u. Rogers (86 N. Y. 360), " burglary at common law is an offence against the habitation of men." It may also be stated that the crime of burglary, even at common law, extends to the felonious breaking and entering a church. 3 Inst. 64 ; 1 Hale's Pleas of the Crown, 556 ; 1 Hawks. Pleas of the Crown, c. 38, § 17 ; 2 RusseU on Crimes, 1 ; Eegina v. Baker, 3 Cox C. C. 581 ; 2 Wharton's Cr. Law, § 1556. Lord Coke was of the opinion that the crime could be committed in regard to a church because, as he said, it was the mansion-house of the Omnipotent God. Lord Hale said that was only Lord Coke's quaint way of putting it, and that burglary at common law could be committed by breaking and entering, not only a mansion-house, but a church, as a church, and without speaking of it as the mansion-house of God. It will be seen upon examination that there were two exceptions at common law to the general rule that burglary consisted in breaking into a mansion-house, the word "mansion" being synonymous in that respect with " dwelling-house." Those two exceptions were, first, in regard to a church, and second, in regard to breaking through the walls or gates of a town. It was, however, primarily an offence committed against a man's house, his dwelling, and in the night time. The Revised Laws of the State defined burglary without dividing it into degrees'. By tlie Revised Statutes burglary in the third degree was made to consist of breaking and entering with intent to steal or to com- mit any felony. The exact terms of the statute are as follows: " Every person who shall be convicted of breaking and entering in. the day or in the night time, (1) Any building within the curtilage of a dwelling-house but not forming a part thereof; (2) Any shop, store, booth, tent, warehouse or other building in which any goods, merchandise, or valuable thing shall be kept for use, sale, or deposit, with intent to steal therein or to commit anj' felony, shall upon con- viction be adjudged guilty of burglary in the third degree." (2 E. S., 669, § 17.) From the time of the passage of the Revised Statutes up to 1863, the crime stood as therein defined. By chapter 244 of the Laws of 1863, the above section was amended by inserting in the second subdivision, after the words "or other building," the words, "or any SECT. I.] PEOPLE V. RICHARDS. 477 railroad car, shop, vessel or canal boat." "We think it plain that all the words used in the Revised Statutes or in the Statute of 1863, in deiining burglary in the third degree, referred to structures erected or built for the purpose of answering the necessities of living men in their intercourse with each other of a trading or commercial nature, where their property might be deposited and used or while awaiting sale or transportation. Hence the Revised Statutes in describing the crime of burglary in the third degree, or the Act of 1863 above mentioned, did not cover such a case as is presented by this indictment and proof; and if this were all there was in the case we think there would scarcely be room for argument on this subject. Great weight, however, Is laid by the learned counsel for the People on the language used in the Penal Code. That statute in defining burglary in the third degree enacts as follows (§ 498) : " A person who either, (1) With intent to commit a crime therein, breaks and enters a building, or a room, or any part of a building ; or, (2) Being in any building, commits a crime therein and breaks out of the same, is guilty of burglary in the third degree." Section 504 says : " The term ' building,' as used in this chapter, includes a railway car, vessel, booth, tent, shop, or other erection or inclosure." There is contained in the section of the Code one alteration in the definition of the crime, as it is made burglary to break and enter a building with intent to commit a crime, instead of, as in the old statute, with an intent to commit a larceny or felony. As section 504 does not say that the term " building " shall only include such structures as are therein named, it is argued that anything which can possibly be regarded as a building under the broadest and most liberal signification of that term, is included therein, or at least, is included in the expres- sion added at the end of the section, " or other erection or inclosure." If this be sound, a most sweeping enlargement of the generally ac- cepted idea of the nature of the crime of burglary is accomplished in a statute which has been regarded more in the light of a codification of the body of the criminal law than as materially altering and enlarging its scope and nature. We do not believe in this instance that an}^ such result was contemplated by the legislature. Leaving section 504 for a moment out of view, the crime of burglary is defined as a breaking into a building with intent, etc., and the question arises as to the mean- ing of the word "building." Finding it used in a statute defining burglary, two courses suggest themselves: (1) to regard the term as limited to those structures which the common law as amended and enlarged by our statutes relative to the crime made capable of being _broken and entered burglariously ;^ or, (2) to take the widest signiflca- 478 CASES ON CRIMINAL LAW. [CHAP. XL. tion which has ever been given to the term '"building,'' and hold that every structure within such meaning is within the statute, provided it could be physically broken and entered. We are persuaded that the first course is the true one. We are unable to believe that the legisla- ture meant to accomplish so radical a change in the nature of this crime by the use of language, which by its context is capable of a much more restricted meaning, and one which is fully in accord with the nature of the crime as known to the common law and to our stat- utes down to the adoption of the Penal Code. The slight alteration made by the Code as to the intent which is to accompany the breaking and entering, from an intent to steal or to commit any felony to an intent to commit any crime, does not militate, as we think, against this reasoning, for that alteration is of comparatively slight importance and does not really change the nature of the crime. In the absence of other and controlling reasons we are disposed to limit the term " build- ing " to those structures included in the common law and statutory definitions of the crime. We find at common law that burglary, so far as the character of the building was concerned, was committed by an unlawful breaking and entering of a dwelling-house. Our early statutes made the breaking and entering of such a structure in the night time with intent to commit some crime therein, when there was a human being within, burglary in the first degree, and when the entry was made in the day time, burglary in the second degree. Subsequently burglary in the third degree was made to consist in breaking any building within the curtilage of a dwelling-house but not forming a part thereof, or in breaking and entering " any shop, store, booth," etc., as already cited. It is thus seen that up to the time of the adoption of the Penal Code, the structures in regard to which burglary could be committed had been quite clearly defined, and the term "building" as used in connection with the crime of burglary had a definite and well understood meaning. To attach the same meaning to it in a statute upon the same subject, passed under the circumstances in which this Penal Code was passed, and where there is no such wide departure from the language used in the Revised Statutes or Act of 1863 as to indicate a diflerent and enlarged sense as to the meaning of the word, seems to us to be the natural and the true course to adopt. There would be no propriety in taking the most enlarged meaning anywhere given to the word and accepting it as the true sense in which it was used in this statute defining burglary in the third degree. Now what effect upon this reasoning does a reference to section 504 have? That section simply says that the term " building" includes a " railroad car, vessel, booth, tent, shop," etc., and leaves out the •words "in which any goods, merchandise, or valuable thing shall be SECT. I.] PEOPLE V. EICHAEDS. 479 kept for use, sale, or deposit." This omission we do not regard as very material, or as enlarging in any way the definition of the crime, for the specific words used imply substantially the same meaning, which is to be gathered from the use of the words which are omitted, and which is probably the cause of their omission. The meaning of the term " building," other than as including therein the structures specifically mentioned in the statute is still left, as we think, to be gathered pre- cisely in the same way as it would have been if section 504 had not been passed. "We think that the term as used in these two sections of the Penal Code under discussion does not enlarge the character of the crime of burglary to such an extent as to include the structure described in this indictment and in the proof given under it. Careful and painstaking research has been exhibited in the very full briefs furnished us by counsel for the People ; but they have succeeded in finding no case which would include a structure such as this within the term " building " in connection with any statute similar to ours in regard to burglary. We are quite sure none such can be found. Very many cases are cited by counsel on both sides as to what is included in the term ' ' building " when used in various statutes relating to various subjects. Such, for example, as the fire law in cities ; the English Reform Act of 1832 (§ 27) as to what sort of a building was within the section of that Act as qualifying the owner or the tenant to vote ; also the English Act in relation to arson, as to what was a building and when it was sufficiently completed to be within the statute ; also the statute in relation to mechanic's liens, as to what was a building upon which a lien could be placed. We do not think that any good can be gained by a separate consideration of each one of those cases. We have looked at them all, and the most that can be said is that each court defines the word with xelation to the subject-matter of the statute which was under considera- tion, and the best that can be said has been said by many of the judges in those cases, which is, that it is impossible to give a general, absolute, and far reaching definition or meaning to that word which shall cover all possible cases. They say they can but define the language with reference to the facts in each case and the special subject under con- sideration, and as determining whether in the particular case in hand the structure in question does or does not come within the purview of the statute. That is all that we can do here. Taking the law in regard to burglary from the earliest period of the common law where that crime is referred to down to the present time, we feel quite con- fident that not one case can be found where breaking and entering such a structure as the one in question has been held to come within that crime. We simply intend to decide this case and no other ; and when 480 CASES ON CEIMINAIi LAW. [CHAP. XL, we come to examine the indictment, and the proof giving a description of the structure, we come to the belief that it is really nothing more than a grave above ground. The witness speaks of these various com- partments as graves. They are intended solely for the interment of dead bodies, and the structure itself can be put to no other possible use without altering its nature and purpose. The small room, as it is termed, in the front portion of the structure between the outside wall and the place for the deposit of the coflans, is used for nothing. No services of a religious nature could be carried on there, and language could not be tortured into calling that place a church, or a place for religious worship. If instead of being placed above ground this struct- ure had been placed in a foundation deep enough to receive it, and then used for the purpose of burying the dead, and that only, could there be any question that it was not the subject of burglary, even although sufficient of the structure were above ground to enable one to reach it through a door and steps ? We think not ; and we do not think it becomes a building within the statute in regard to burglary any more because it is placed above the ground when its sole purpose is that it shall be used as furnishing graves for the burial of the dead. It is claimed, however, if this structure is not included in the term " building " as used in this statute, that the words added at the end of section 504 and already alluded to, namely, " or other erection or enclos- ure," would include it. They undoubtedly would if the widest meaning of those words is to be taken as within the meaning of the legislature, and if whatever could under other circumstances and for other pur- poses be called an erection or inclosure is to be regarded as the subject of burglary. We do not attach any such meaning to those words when used in this connection, and we think it quite plain that the legislature never intended any such meaning. A farm lot or a vacant city lot might be inclosed with a fence and inside that fence there would be an inclosure ; can it be supposed possible that the legislature intended that burglary might be committed by breaking and entering such an inclosure? In one sense, and in the widest, anything that is inclosed is an inclosure, and the thing which inclosed it would be the thing the breaking of which and entering the inclosure would be burglary. A bronze statue in a public square is an erection, and if it be of colossal size may be broken and entered. Can any one suppose that burglary could be predicated of such an act? These are extreme cases, but they are nevertheless within the possible meaning of those terms, when such meaning is not to be anived at and limited by an examination of the context. SECT, I.] PEOPLE V. KICHAKDS. 481 It is plain that some limitation must be made to the meaning of those words other than their possible capacity when standing alone. Now there are certain rules and canons of construction in such cases as this which seem to us to serve as a perfect guide to the meaning of the language used in this statute. The rule which usually obtains in cases of this kind is that where general words follow specific words designating certain special things, the general words are to be limited to cases of the same general nature as those which are specified. The rule is familiar and needs not the citation of many authorities. Applying a rule which is so well established both in England and in this country to the case in hand, we think that the phrase " other erection or inclosure" is to be interpreted as including things of a similar nature to those already described by the specific words found in the statute. If this be so, then under the phrase in question the erection or inclosure included in burglary in the third degree was to be of that character which mankind used for the purpose of sheltering property, or for the purpose of transporting the same, or the purpose of trade or commercial intercourse. In arriving at this conclusion it is not necessary that we should also show that the act committed by the defendant subjected him to punish- ment as a crime of some kind. We think it was the plain intent of the law-making power to keep the distinction clear between crimes against the living and against the property of the living and crimes against public decency, in the way of desecrating the graves of the dead or the structures whose only purpose is to be a place for the permanent interment of the dead. . Ofiences of this general nature are not pro- vided for by the Penal Code, and whether the particular act of this defendant, as proved in this record, constitutes a crime, it is not neces- sary for us now to determine. The law should not be stretched out of its fair and natural meaning for the purpose of including within the statute of burglary a case like this. If the legislature think proper, let the law be amended so as to include in plain terms such a case as this record discloses. The argu- ment that the oflence of burglary has been constantly enlarged from what it was at common law, and that the intention to enlarge it so as to include a case like this should be easily imputed to the legislature, we think is not sound. Whenever the offence has been enlarged in this State by the legislature it has been, by plain language, susceptible of no misunderstanding. We do not think any intent to enlarge the offence to the extent necessary to make the prisoner's act burglary can be founded upon the language used in the Penal Code. These views lead to a reversal of the judgment of conviction, and as 31 482 CASES ON CRIMINAL XAW. [CHAP, XL. the defendant cannot be convlxjted ipf any .crime under this indictment he should be discharged. All concur. Judgment acoordingly. Sectton 2. The Intent.* commonw:balth w. new:ell, 7. Mass. '245 [1810]. The prisoners were indicted for feloniously and burglariously break- ing and entering the dwelling-house of Edward Dixon, of Boston, in the night Of the 17th of August last, with the intent unlawfully and feloniously to assault the said Dixon, and to cut off one of his ears, with an intention the said Dixon to ,maim and disfigure ; and after being so entered, for unlawfully and feloniously assaulting the said Dixon, and cutting oif his right ear, with intention him to maim and disfigure, with set purpose, and of their aforethought malice, against the peace and the form of the statutes in such case provided. The prisoners demurred to the indictment. Parsons, C. J. The objection to the indictment is that the facts therein found do not amount to felony. The breaking and entering of a dwelling-house in the night is not burglary, unless it be done with an intent to commit a felony. This position' the attorney-general has not contested. The question for our decision then is, whether the cutting off the ear of Dixon, of set purpose and of malice aforethought, with the intention to maim and disfigure him, is by our laws a felony ; for if it be not a felony, an intention to do it cannot be an intention to commit felony. That the cutting oflf an ear, maliciously and of set purpose, with the intention to maim and disfigure is not a mayhem by the common law, is not denied ; but the attorney-general has insisted that the Statute of 1804, c. 123, has made the cutting off the ear, with the disposition and intention aforesaid, a mayhem ; that mayhem at common law is felony ; and that, as a necessary conclusion, the cutting off the ear, maliciously and with the intention to maim and disfigure, is by force of the statute a felony. ^ [As to breaking and entering at common law with wrongAll but not felonious intent, see chapter, Forcible Entry.] SECT. J!.] €0MMON'WEALTH V. NEWELL. 483 Byitbe ancient common law, majhein was an injurj' rof a particular nature, .constituting a specific offence, the commission of which could be regularly averred by no circumlocution, without theaid of the bar- barous \et\) ntahemiare. It consisted in violently , and unlawfully depriving another of the use ^ of a member proper for his defence in fighting, .and was .punished by a forfeiture of member for member, in consequence of which forfeiture it was deemed a felony. If the sufferer sought this satisfaction, or rather revenge, his remedy was by an appeal of mayhem; and the sovereign punished this ; injury done to his subject bj' an indictment for a mayhem ; and in both the appeal and indictment the offence must be alleged to have been committed feloniously. A punishment of this description could have existed only in a rude state of civil society ; and as civilization advanced, the punishment was disused, and the offender made satisfaction by paying pecuniary damages and was punished by his sovereign by fine and imprisonment, in the same manner as in cases of trespass. So long ago was this punishment disused that Staundford, remarking on the statute of 5 H. IV. c. 5, which n)ad€ the putting out of an eye felony, observes that before that statute it was not felony. He however subjoins a qumre, and refers, to ^BraQton. This was the state of the common law long before and at the time when our ancestors emigrated to this country, bringing with them but a very small part of the oommon Is^w, defining crimes and their punish- ment. Mayhem was therefore never deemed by them a felony, but only an aggravated trespass at common law ; and as such, the offender was answerable to the party injured in a civil action of trespass, and to the government upon an indictment for a misdemeanor ; and no statute- provision, during the existence of the. colonial and provisional charters, recognizes mayhem as a distinct offence from trespass, or as constitu- ting a specific felpny. We are therefore obliged tP consider mayhem as no felony by the common law adopted in this State. The attorney-general has argued that if the indictment is not a suffi- cient description of a'felony, yet it may be supported as an indictment fora misdemeanor. There are one or two f,ncient cases in favor of this position, as Holmes's ;case,V and Martin Lesser's case, in the time of Henry IV., which is reported in Gro. Jac. 497. But iu; a later case of Eex v. West- beer,'' the old cases were considered and overruled. The Court, when the prisoner was discharged, observed that in the eases cited for the king, thjB judges appeared to be transportpd with zeal too far. I Cro.iCar. 376. 2 2Str.,1133. 484 CASES ON CRIMINAL LAW. [CHAP, XLI. Thus stands this question at common law. But our Statute of 1805, c. 88, in authorizing a conviction of part of an indictment for felony, restrains the conviction to cases where the part, of which the prisoner is found guilty, constitutes of itself a felony. This provision seems to be a statute-construction of the point, which leaves no doubt remaining. Per CnsiAM. Let judgment be entered that the indictment is bad, and let the prisoners be discharged. EEX V. KNIGHT, above, p. Ill, REGINA V. POWELL, above, p. 244. CHAPTER XLI. Aeson and Other Burnings. Section 1. Indictable Common Law Buening, below the Grade OP Arson. REX V. PROBERT, 2 East P. C, 1030. REX V. ISAAC, 2 East P. C. 1031. Section 2. Arson and Statutoet Burnings REX V. ELIZABETH MARCH, 1 Moo. C. C. 182 [1828]. The prisoner was tried before Alexander, C. B., at the Spring assizes for the county of Northampton, in the year 1828, on an indictment which described her as Elizabeth, the wife of John March, and charged her with unlawfully, maliciously, and feloniously setting fire to a cer- tain house of the said John March, with intent to injure him, against the form of the statute. It appeared from the evidence that March the prosecutor, and the prisoner his wife, had lived separate for about two years, she going by her maiden name. It was proved that previous to the act, when she SECT. II.] EEX V. MAKCH. 485 applied for the candle with which it was done, she said it was to set her husband's house on fire, because she wanted to burn him to death. Upon another and earlier occasion she used threats of burning him and his house to a cinder. Having borrowed a candle and lantern she went to her husband's thatched house at night, and stuck the candle burning into the thatch. She was observed by a neighbor, and an alarm was given, upon which she ran away : the husband came out and pulled from the roof the burning candle and the straw immediately communicating with it, and so prevented any conflagration. The straw pulled out was proved to have been black and singed. The jury found her guilty. The learned Chief Baeok wished to have the opinion of the Judges, whether it is an offence within the 7 & 8 Geo. IV., c. 30, § 2,^ for a wife to set Are to her husband's house for the purpose of doing him a per- sonal injury. If not, the conviction appeared to the learned Chief Baron to be erroneous. In Rex «. Ann Gould, 1 Leach, 217, it was held that a woman could not be capitally convicted for stealing the goods of a stranger to the value of 40s. in the dwelling-house of her husband. This case was considered at a meeting of the Judges in Easter term, 1828 (present Lord Tenterden, C. J., Best, 0. J., Alexander, C. B., Bayley, Littledale, Gaselee, JJ., and Vaughan, B.), and the conviction was held wrong; the learned Judges thinking that to constitute the offence, it was essential that there should be an intent to injure or de- fraud some third person, not one identified with herself. 1 [7 & 8 Geo. IV., c. 30, § 2.] And be it enacted, That if any person ghall unlaw, fully and maliciously set fire to any church or chapel, or to any chapel for the re- ligious worship of persons dissenting from the United Church of England and Ireland, duly registered or recorded, or shall unlawfully and maliciously set fire to any house, stable, coach-house, outhouse, warehouse, ofSce, shop, mill, malt-house, hop oast, barn, or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, with intent thereby to injure or defraud any person, every such oflender shall be guilty of felony, and, being convicted thereof, shall sufEer death as a felon. 486 CASES ON CEIMIKAL LAW. [CHAP. XLII. (JHAJi'TER XLII. FOEGERY. Section 1. What is a Writing. EEGINA V. GLOSS, 7 Cox C. C. 494 [1857]. [Indictment in three counts, of whicU the third was as follows] :-^ And the jurors aforesaid upon their oath aforesaid do further present, that before the time of the commission of the offence in this count here- inafter stated and charged, one J. Linnell of Redhill,, in the county of Surrey, an artist m painting of great celebrity, and well known as such to the liege subjects of our Lady the Queen, had painted a certain large and valuable picture, whereon he had painted his name to denote that the said picture had been painted by the said J. Linnell; and the jurors afbresaid upon their oatb aforesaid do further present, that the said T. Closs being a dealer in pictures, and being a person of fraudulent mind and disposition, and devising, contriving, and intending to cheat and defraud on the 24th day of July, in the year of our Lord, 1857, and within the jurisdiction aforesaid, unlawfully, wilfully, and wickedlj' did procure and have in his possession for the purposes of sate a certain painted copy of the said picture,, on which said painted copy of the said picture was then and there unlawfully painted and foiled the name of the said J. Linnell! And tbe jurors aforesaid upon their oath' aforesaid do further present, that the said T. Closs, well knowing the name of the said J. Linnell so painted upon the said copy to be forged, did then and there, and within the jurisdiction aforesaid unlawfully, deceitfully, wick- edly, and fraudulently offer, sell, dispose of, utter, and put off' to the said H. Fitzpatrick the said painted copy of the said original painted pictlire with the name of the said J. Linnell' so painted and forged thereOn as aforesaid, and the said forged name of the said J. Linnell for a certain large sum of money, to wit, the sum of £130, to the great damage and deception of the said H. Fitzpatrick, to the evil example of all others in the like case offending, and against the peace of our Lady the Queen, her crown and dignity. It was objected by the prisoner's counsel in arrest of judgment that this count disclosed no indictable offence. . . . SECT. I.]. EEGIirA V. GLOSS. 487 irintyre for the prisoner. ... As to the third count. The crime of forgery is defined in S.uss. 3I8, to be "the fraudulent making or altering, a writing, to the prejudice of another man's right," and it clearly does not include this case. Forgery must be of the whole or of some material part of a written instrument. What was done here was no more than saying, that the picture was painted by Linnell. But there cannot be a forgery of a picture. It may be imitated, but it cannot be forged. The name of "Linnell" is no more than a tree or a house painted upon it. It is part of the whole thing imitated, but it is not a forgerj'. Suppose a man were to put the name of Joseph Manton upon a gun, and pass it off as made by that maker, surely that would not be a forgery of the gpn, although it might be a false pretence knowingly to obtain money by so representing, it. The name of a painter on a picture is no more than a trademark on goods, and it has never yet been held that copying trademarks is for- gery. The only subject of forgery here would be the signature, but there is no averment that there was any uttering of the forged signature as distinct from the picture, even if that would be an offence. Suppose in the case of the gun that it was really made by Manton, but that his name was put on it by some other person, could the instrument be said to be forged, when in truth it was genuine, and nothing' about it was spurious except the trademark ? ' Metcalfe tov the prosecution. . .- . The third count isa good; count for forgery. It shows that the signature of Linnell was a forgery, and that the prisoner knowingly put off the" picture: with the signal ture upon it It is distinctly averred, therefore, that the prisoner uttered the signature if he uttered the picture with the signature at- tached. Suppose he had uttered a separate document, purporting to be a certificate of Linnell, signed by' him, that the picture was of his painting, that would surely be a forgery, and the fact that such certificate is on the painting itself will not ma;ke it legs a forgery ; E. ». Toshack, 1 Dears. C. C. 285 ; 23 L. J. 61, M. C. ; K «i Sharman, 6 Cox C. C. 312. GocKBuRN, C. J. If you once go beyond^ a writing where are you to stop? Could'there be a forgery of sculpture? There is here no allega- tion of a distinct uttering of the signature. Metcalfe.- There is a; sufficient averment to sustain the indictment sifter verdict, WiLUAMS, J. It is quite consistent with the fstcts here that the de- fendant sold the picture without calling attention to the signature. Cur. adv. vult. 488 OASES ON CRIMINAL LAW. [CHAP. XLII. JUDGMENT. CocKBURN, C. J., now delivered judgment as follows: The prisoner was indicted on a charge of having sold to one Fitzpatrick a picture as and for an original picture painted by Linnell, when in truth it was only a copy, and that he had passed it off by means of having the name "J. Linnell " painted in the corner of the picture in imitation of the original, which bore such signature. There were three counts in the indictment. The first was for obtaining money by false pretences, on which the pris- oner was acquitted. The second was for a cheat at common law ; and the third for a cheat by means of forgery at common law. As to the third count, we are all of opinion that that was no forgery. A forgery must be of some document or writing ; but the name of Linnell in this case can only be regarded as an arbitrary mark put upon the picture by the painter to enable him to recognize his own work. REGINA V. SMITH. 8 Cox C. C. 32 ; Dears and B., 566 [1858]. Case reserved and stated by the recorder of London : — John Smith was tried before' me at the Central Criminal Court, upon an indictment charging him with forging certain documents, and with uttering them, knowing them to be forged. It appeared that the prosecutor, George Berwick, was in the habit of selling certain powders, some called Berwick's baking powders, and others Berwick's egg powders. These powders were invariably sold in packets, and were wrapped up in printed papers. The baking powders were wrapped in papers which contained the name of George Berwick, but they were so wrapped that the name was net visible till the packets were opened. It was proved that the prisoner had endeavored to sell baking pow- ders, but had them returned to him because they were not Berwick's powders. Subsequently he went to a printer, and representing his name to be Berwick, desired him to print ten thousand labels as nearly as possible like those used by Berwick, except that the name of Berwick was to be omitted in the baking powders. The labels were printed according to his order, and a considerable quantity of the prisoner's powders were subsequently sold by him as Berwick's powders wrapped in those labels. SECT. I.] EEGINA V. SMITH. 489 On the part of the prisoner it was objected that the making or utter- ing such documents did not constitute the offence charged in the indictment. This point I determined to reserve for the consideration of the Court of Criminal Appeal, and I left it to the jury to find whether the labels so far resembled those used by Berwick as to deceive persons of ordi- nary observation, and to make them believe them to be Berwick's labels ; and whether they were made and uttered by him with intent to defraud the different parties by so deceiving them ; directing them in that case to find the prisoner guilty. The jury found him guUty. The labels marked "genuine" sent herewith were those used by the prosecutor ; those marked " imitations " were the labels the subjects of this prosecution, and reference can be made to them if necessary. The prisoner has been admitted to bail to await the decision of the Court for the consideration of Crown Cases upon the foregoing facts. The following is a copy of the genuine baking powder label : — Patronized by the admiralty! Borwick's original German baking POWDER, for making BREAD WITHOUT YEAST, AND PUDDINGS WITHOUT EGGS. (Directions improved by the Queen's private baker.) By the use of this preparation, as the saccharine properties of the flour, which are destroyed by fermentation with yeast, are preserved, the bread is not only more nutritive, but a larger quantity is obtained from the same weight of flour. Bread made with yeast, if eaten before it becomes stale, ferments again in the stomach — producing indigestion and numerous other complaints : when made with this powder it is free from all such injurious effects. The powder is equally valuable in making puddings and pastry, which it deprives of all then- indigestible properties; and if dripping or lard be used instead of butter, it removes all unpleasant taste. It will keep any length of time and in any climate. In the sick hospital of the Crimea it was found invaluable. The public are requested to see that each wrapper is signed George Ber- wick, without which none is genuine. Sold retail by most chemists in Id., 2d., 4rf., and 6rf. packets, and in Is., 2s. 6rf, and 5s. tins. Wholesale by George Ber- wick, 24 and 25 London Wall, London. Directions on the other side. The following is a copy of the imitation label used by the prisoner : Patronized by the army and navy I Borwick's original German BAKING powder, FOR MAKING BREAD WITHOUT YEAST, AND PUDDINGS WITHOUT EGGS. (Directions improved by the Queen's private baker.) By the use of this preparation, as the saccharine properties of the flour, which are destroyed by fermentation with yeast, are preserved, the bread is 490 CASES ON CEIMINAI,- LAW. [CHAP. XLH not only more nutritive, but a larget quantity^ is obtained ffom the same weight of &o\it. Bread made with yeast, if eaten before it becomes stale, ferments again in the stomach — producing indigestion and numerous other complaints; when made with this powder, it is free from all such injurious effects. This powder is equally valuable in making puddings and pastiy; which it deprives of all their indigestible properties'; and if dripping or lard be used instead of butter, it removes all unpleasant taste. It will keep any length of time and in any clitnate. In the-sick hospital of the Crimea it wasfound invaluable^ Sold retail by most chemists in Id., 2d., 4d.,a.Jii 6(f. paekets, and in Ij.^ 2s. 6d., and 5s tins. Directions on the other side; The directions indorsed on the backs of the two labels Wefe totickm The following is a copy of the genuine egg powder label : — ' Borwick's metropolitan egg powder. A vegetable compound, being a valuable substitute for eggs. One packet is sufficient for two pounds of flour and equal to four eggs. Directions. — Mix with the flour, then add water or milk, for plum, batter, end other puddings, cakes, pancakes, etc. Price one penny. To be had of all grocers, oilmen, and coruchandlers. The following is a copy of the egg powder label used by the prisoner : BoR wick's' meteopolitan egg powder'. A vegetable compound, being a valuable substitute for eggs. One packet is sufficient for two pounds of flour and equal to four eggs. Directions. — Mix with the flour, then add water or milk, for pliim, batter, and other puddings, cakes, pancakes, etc. Price one penny. To be had of alll grocers, oilmen, and coruchandlers. M'lntyre, for the prisoner. This is not a forgery either at common law or within the statute. The gist of the offence was the passing off for genuine baking powder that which Was not so; in- fact, something that was not so good. This'was nothing more than a puff. In Kegina v. Closs, 27 L. J. 54, M.C., it was held that a person could not be indicted for forging or uttering' the forged name of a painter by falsely putting it on a spurious picture to pass it off as the genuine painting of the artist. This was no more than a printed label, and only differs from Eegina v. Closs in that there the name was painted on the'picture. In the case of Burgess's sauce labels the Court of Chanceiyrefused to restrain the son from using labels with the father's name upon them; [Pollock, C. B. Suppose a man opened a shop and painted it so as exactly to resemble his neighbor's, would that be forgery?] Nd< The affixing this label to the powder amounts to no more than saying: " This is Bor- SECT, r.] EEGINA V. SMITH. 491 Mck's powder." If the prisoner had had a license, he would have had a right to use the labels. MuMUston {Poland W\i!a. him)i for the prosecution. The jury have found that the labels were made and uttered by the prisoner with intent to defraud. The definition of forgery at common law is "the fraudu- lent making or alteration of a' writing to the prejudice of another man's right ; " 2 Rus. on Crimes, 318 ;: 4 Black. Com. 247 ; Stark. Crim. Law, 468; 2 East^ P. C. c. 19, § 49, p.- 965; and the finding of the jury brings this case within that definition. [.Channell,, B. What was a document at common law which could be the subject of forgery? Pol- lock, C. B. Was a book of which another man made copies?] It is submitted that it was ; Com. Dig. "Forgery." Letters maj'be the sub- ject of forgery : Chit. Crim. Law, 1022. So a diploma of the College of Surgeons may be: Eegina v. Hodgson, 7 Cox C. C. 122. So also the certificate of the examiners of the Trinity House : Regina «. Toshackj 1 Den. C. C. 492. So a letter of the character of a servant may be : Eegina v. Sharman, 1 Dears. C. C. 285. Then this label iis a certificate as to the character of an article : Eegina v. Closs ; R. v. Colicott, Russ, &Ry. 201 ; Stark. Crim. Law, 479,. were also cited. ■Pollock, C. B. We are all of opinion that this conviction is bad* The defendant- may have been- guilty of obtaining money under false pretences ; of that there can be no doubt ; but the real offence here was the issuing a false wrapper and inclosing false stuff within it. The issuing of this wrapper without the stuff within it would be no offence. In the printing of these wrappers there is no forgery ; the real offence is the issuing them with the fraudulent matter in them. I waited in vain to hear- Mr. Huddleston show that these wrappers came witliin the principle of documents which might be the subject of forgery at common law. Speaking for myself, I doubt very much whether these papers are within that principle. They are merely wrappers, and in their present shape I^ doubt whether they are anything like a document or instrument which is the subject of forgery at common law. To say that they belong to that class of instruments seems to me to be con- founding things which are essentially different. It might as well be said that if one tradesman used brown paper for wrappers of the same description as another tradesman, he could be accused of forging the brown paper. WiLLEs, J. I agree in the definition of forgery at common law, that it is the forging of a false document to represent a genuine document. That does not apply here, for it is quite absurd to suppose that the prisoner was guilty of ten thousand forgeries as soon as he got these wrappers from the printer; and if he had distributed them over the whole earth and done no more, he would have committed no offence. 492 CASES ON CEIMINAL LAW. [CHAP. XLH. The fraud consists in putting inside the wrappers powder which is not genuine, and selling that. If the piisoner had had one hundred genuine wrappers and one hundred not genuine, and had put genuine powder into the spurious wrappers and spurious powder into the genuine wrap- pers, he would not have been guilty of forgery. This is not one of the different kinds of instruments which may be the subject of forgery. It is not made the subject of forgery simply by reason of the assertion of that which is false. In cases like the present, the remedy is well known : the prosecutor may, if he pleases, file a bill in equity to re- strain the defendant from using the wrapper, and he may also bring an action at law for damages ; or he may indict him for obtaining money under false pretences. But to convert this into the offence of forgery would be to strain the rule of law. Bramwell, B. I think that this was not a forgery, even assuming that the definition of forgery at common law is lai^e enough to compre- hend this case. Forgery supposes the possibility of a genuine docu- ment, and that the false document is not as good as the genuine document, and that the one is not as efficacious for all purposes as the other. In the present case one of these documents is as good as the other — the one asserts what the other does — the one is as true as the other, but the one is improperly used. But the question now is, whether the document itself is a false document. It is said that the one is so like one used by somebody else that it may mislead. That is not material, or whether one is a little more true or more false than the other. I cannot see any false character in the document. The prisoner may have committed a gross fraud in using the wrappers for that which was not the genuine powder, and may possibly be indicted for obtain- ing money by false pretences, but I think he cannot be convicted of forgery. Chaiinell, B. concuiTed. Byles, J. Every forgery is a counterfeit. Here there was no coun- terfeit. The offence lies in the use of it. Conviction quashed. COMMONWEALTH v. RAY, 3 Gray, 441, 446. Section 2. The Character of the Writing. EEGINA V. MOAH, 7 Cox C. C. 503. REGINA V. SHARMAN, 6 Cox C. C. 312. SECT, in.] EX PARTE "WINDSOB. 493 EEGINA V. TOSHACK, 4 Cox C. C. 38. REX V. HARRIS, 1 Moo. C. C. 393. REX V. HAWKESWOOD, Leach C. C. 292. REX V. RECULIST, Leach C. C. 811. Section 3. The Essekce op Forgery Fictitiousness, not Un- truthfulness. EX PARTE WINDSOR, 10 Cox C. C. 121 [1865]. COURT OF QUEEN'S BENCH. [Before Cockburn, Blackburn, and Shee, JJ.] [Habeas Corpus, — Application for Extradition.] It appeared that . . . "Windsor had been a clerk in " The Mercantile Bank of New York," in the United States of America, and that whilst in that capacity he was under suspicion of having made false entries in the bank-books to conceal certain embezzlements. By the law of the State of New York this is declared to be a forgery in the third degree. Blackburn, J. . . . The onlj' power that the extradition treaty gives to surrender a prisoner is that derived from the statute ; and that stat- ute, as far as I see, does not enact that all fugitives from justice shall be given up, but only those who have committed certain enumerated crimes — it provides for the delivery of any person charged with the crime of murder, assault with intent to commit murder, the crime of piracy, arson, robbery, and forgery ; these, both in the treaty and the statute passed to give effect to it^ are the defined cases given by those high contracting parties to the treaty on which to deliver over prisoners to each other. Now the charge that is made out against this person is that he, being a clerk in a bank, did steal a large sum of money, and in order to conceal it did make an entry in a book, which entry, as I make it out, was an entry stating on hia 494: CASES ON CRIMINAL LAW, [CBCAP. XLII. behalf that a certain quantity of specie had been deposited in the vaults, whereas, in point of fact, the statement was wilfully and fraud- ulently false, with the intention to conceal and embezzle. But though he was guilty of that crime, it did not amount to forgery. Forgery is the false making of an instrument, purporting to be that which it is not ; it is not the making of an instrument which purports to be what it really is, but which contains false statements. Telling a lie does not become a forgery because it is reduced into writing. The guilt of the thing which he has done is by no means more than that. He has not made any statement that is purported to '.be made by the authority of any person on behalf of that person. Now this man has made a false statement, falsely stating a fact which purports to be what it is. It is quite truethat the State of New Xprk t^, statute has enacted that thpse guilty of this offence shall, on conviction, be deemed guilty of forgery in the third degree. I pass by, without entering into them, the various observations that have been made to show thstt this did amount to this crime within the New York State,; ,1 am inclined to think it would be certainly a crime in the New York State. But then if this is not for- gery, how does the fact tha,t the local State of New York in the United States has declared in effect that he shall be deemed guilty of forgery, make it forgery within the meaning of the extradition statute ? That, I think, we cannot do. I think we must construe this statute and the treaty between the two high contracting parties, Her Majesty the Queen of Great Britain on th« one part and the United States -on the other part, as a bargain and treaty; but that bargain, notwithstanding the dignity of the parties, must be understood like every other contract according to the meaning of the words fairly understood and the inten- tion expressed by them in terms, both parties -using the same English language and both speaking of the same sort of thing as to the par- ticular crimes for which prisoners shall be given up, — murder, piracy, and forgery. ... I do, not think, if either country was to declare that some particular offence shall be a forgery, -or called a forgery, that this will do. The true and fair meaning of the local statute is merely, that he who commits a crime, though not forgery in itself, shall be punished as if he had committed forgery. In this case the man who is guilty of a crime is a fugitive, and we might wish that the Legis- lature gave us the power to give up any criminals who committed a great crime ; but that has not been done. I agree with my Lord that he is to be discharged, so far as this ground of objection is concerned. SECT, m.] COMMONWEALTH V. BAIJ)"WIN. 496 RJEGINA V. WHITE, 2 Cox C. e. 210 [1847]. CBOWN CASE RESERVED. pijdictment for Forgerj' of a Bill of Exchange.] The bill was . dated c on the 19th, of August, 1846, at three months. It professed to be drawn by.MathewiClarkson on William Nicholson, paj'able to his own order, and to be accepted by William Nicholson and indorsed by Mathew Clarkson, and then, per procuration, Thomas Xomlinson, Emanuel White. Alfred Thomas Fellowes was called : I am a partner with Thomas Hart in a bank at Nottingham. On the 1st of September, 1846, the prisoner came to our bank with this bill, which he asked me to discount. He said he had brought it to be, discounted; that he came from Mr. Tomlinson. J called in a clerk, (Newton), who said he knew him, that he. sometimes came from Mr. Tomlinson, who was very good, so I dis- counted it. I told the prisoner Mr. Tomhnson had not indorsed it. He said Mr. Tomlinson was from home, but that he could indorse it for him. I asked him if he could, and he said "Yes." Tasked Mr. Tomlinson's Christian name ; he said " Thomas." I -wrote " per proci^ ration Thomas Tomlinson." He said he would sign his name ; he did sign his name, and I gave him the money. In Trinity term, the Judges who . heard the argument assembled to consider the case, and unanimously held that the prisoner's offence was not forgery. . . . COMMONWEALTH v. HENRY W. BALDWIN, 11 Gray, -197 [1858]. Thomas, J. This is an indictment for the forgery of a promissory note ... of the following tenor : — 1457.88. Worcester, Aug. 21, 1856. Four months after date we promise to pay to the order of Russell Phelps four hundred fifty seven dollars ^^, payable at Exchange Bank, Boston, value received. Schouler, Baldwin & Co. 496 CASES ON CEIMINAL LAW. [CHAP. XLU. Russell Phelps testified that the note was executed and delivered by the defendant to him at the Bay State House in Worcester, on the 21st of August, 1856 ; . . . and that in reply to the inquiry who were the members of the firm of Schouler, Baldwin & Co., the defendant said, " Henry W. Baldwin, and William Schouler of Columbus." He fur- ther said that no person was represented by the words " & Co." . , The government offered evidence which tended to prove either that there never had been any partnership between Schouler and Baldwin, the defendant, or, if there ever had been a partnership, that it was dis- solved in the month of July, 1856. The question raised at the trial and discussed here is whether the execution and delivery of the note, under the facts' stated, and with intent to defraud, was a forgery. The writing alleged to be forged in the case at bar was the hand- writing of the defendant, known to be such and intended to be received as such. It binds the defendant. Its falsity consists in the implication that he was a partner of Schouler and authorized to bind him by his act. This, though a fraud, is not, we think, a forgery. Suppose the defendant had said in terms : " I have authoritj' to sign Schouler's name," and then had signed it in the presence of the promisee. He would have obtained the discharge of the former note bj' a false pretence, a pretence that he had authority to bind Schouler. " It is not," says Sergeant Hawkins, "the bare writing of an instru- ment in another's name without his privity, but the giving it a false appearance of having been executed by him, which makes a man guilty of forgery." 1 Hawk. c. 70, § 5. If the defendant had written upon the note, " William Schouler by bis agent Henry W. Baldwin," the act plainly would not have been forgery. The party taking the note knows it is not the personal act of Schouler. He does not rely upon his signature. He is not deceived by the semblance of his signature. He relies solely upon the averred agency and authority of the defendant to bind Schouler. So, in the case before us, the note was executed in the presence of the promisee. He knew it was not Schouler's signature. He relied upon the de- fendant's statement of his authority to bind him as partner in the firm of Schouler, Baldwin & Co. Or if the partnership had in fact before existed but was then dissolved, the effect of the defendant's act was a false representation of its continued existence. In the case of Regina v. White, 1 Denison, 208, the prisoner in- dorsed a bill of exchange, " per procuration, Thomas Tomhnson, Emanuel White." He had no authority to make the indorsement, but the twelve judges held unanimously that the* act was no forgery. SECT. IV.] REX V. MARSHALL. 49^ The nisiprius case of Regina u. Rogers, 8 Car. & P. 629, has some resemblance to the case before us. The indictment was for uttering a forged axjceptance of a bill of exchange. It was sold and delivered by the defendant as the acceptance of Nicholson & Co. Some evidence was offered that it was accepted, by one T. Nicholson in the name of a fictitious firm. The instructions to the jury were perhaps broad enough to include the case at bar, but the jury having found that the acceptance was not written by T. Nicholson, the case went no further. The in- structions at nisiprius have no force as preceden.1^ and in principle are plainly beyond the line of the settled cases. The result is that the exceptions must be sustained and a new trial ordered in the common pleas. It will be observed, however, that the grounds on which the exceptions are sustained seem necessarily to dispose of the cause. Exceptions sustained. Section 4. Instances of fictitiousness as distinguished feom MERE untruthfulness. REX V. MARSHALL, Russ. «& Rr. 75 [1804]. The prisoner was tried before Mr. Baron Graham, at the York Summer assizes, in the year 1804. The indictment charged that the prisoner Thomas Marshall, on the 12th of March, 1804, at the parish of Kirkby Overblow, on a bill of exchange, on which was then contained an indorsement as follows, " Joseph "Ward," and which bill of exchange was as follows : — No. 654. £28. York, Feb. 24, 1804. Two months after date, pay Mr. Joseph Ward, or order, twenty-eight pounds, value received, as advised by Edward Pratt. Messrs. Fuller & Co. Bankers, London. did falsely make, forge, and counterfeit, an indorsement of the said bill of exchange, as follows: "Luke Marsden," with intention to defraud one Peter Harland. The prisoner came to the house of the prosecutor, Peter Harland, at Kirkby Overblow, in the afternoon of the 12th of March, 1804, to buy a horse. Harland sold him one for £38. "When the bargain was made, the prisoner produced the bill for £28, with other good guinea notes. Harland said he asked no question about the indorsement, but seeing that it was drawn on a good bank in London, desired the prisoner to 32 498 CASES ON CEIMINAL LAW. [CHAP. XLH. give him his name on the back. The prisoner took up pen and ink, and wrote in Harland's presence, " Luke Marsden," on the back. Harland asked him, after he had made the bargain, where he Uved. He said in York ; and Harland made no further inquiry, living twenty miles from York. Harland indorsed the bill : it was sent to London, and returned to him unpaid. The other names on the bill, before " Luke Marsden," and particularly that of Joseph Ward, were there before the prosecutor took the bilL The prosecutor said he knew nothing of the prisoner, or any Luke Marsden ; that he supposed he wrote his own name, but that had he written John Roberts, he should not have refused the bill. It was proved that the prisoner had lived at York for a few years, under the name of Thomas Marshall, but had left it about a year and a half or two years. That his real name was Thomas Marshall, and that he had never, to the knowledge of the witnesses, gone by the name of Luke Marsden. The jury, under the learned judge's direction, found the prisoner guilty, and sentence was passed on him, but respited under a doubt whether forgery of the name of the maker or indorser of a bill or note did not import the assumption of the character and credit of another person, and upon a difficulty of reconciling the cases of Bex v. Shep- herd,^ Rex V. Aickles,^ Rex v. Lockitt, and Rex v. Abrahams,' Rex v. Tuft," and Rex v. Taylor.^ In Michaelmas term, 10th of November, 1804, all the Jitdges (except Heath and Chambre, Js.) being present, it was decided that the convic- tion was right, it appearing that there was no doubt as to the intent to defraud. REX V. WHILEY, Russ. & Ry. 90 [1805]. REX V. LOCKETT, 1 Leach C. C. 110 [1772]. At the Old Bailey in June Session, 1772, Charles Lockett was tried before Mr. Baron Perrott, present Mr. Justice Aston, for forging an order for the payment of money ; and also for uttering it, knowing it to be forged, with intention to defraud one John Scholes, etc. The order was in the words and figures following : — » 2 East, p. C. 967. '■' Ibid. 968. » Ibid. 940, 941. 1 Ibid. 969. 6 Ibid. 960. SECT. IV.] KEX V. LOCKETT. 499 London, Feb. 14:, 1772. Messrs. Neale, James, Fordyce, and Down, Pay to Mr. William Hopwood, or bearer, sixteen pounds ten shillings and sixpence. £16, 10s., 6d. K. Vennist. The prisoner went to the shop of Mr. Scholes, a colorman, and bar- gained for a quantity of goods, amounting to £10, Os. 6c?. He desired a bill might be made out, and said he would call in the afternoon and pay for them. He went away and took a small parcel of Prussian blue with him. He returned in the afternoon, seeminglj' in a great hurry ; said his name was William Thompson, and that he lived at Ware, in Hert- fordshire. He presented the order to pay for the goods, and Mr. Scholes gave him six pounds ten shillings in difference ; but on present- ing it for payment, no man of the name of R. Vennist had ever kept cash at the house of Neale, James, Fordyce, and Down ; nor did the prosecutor know any such person existing ; and it was in fact a ficti- tious name. The jury found the prisoner guilty of uttering the order, knowing it to be forged ; but as it appeared that no man of the name of Vennist had ever kept cash with these bankers, it was doubted whether this was an order for the payment of money within the meaning of the Statute of 7 Geo. II. c. 22", the principle of Mary Mitchell's Case ' being that the words " warrant or order," as they stand in the Act, are synony- mous, and expressive of one and the same idea, and in common par- lance import that the person giving such warrant or order hath, or at least claimeth an interest in the money or goods which are the subject- matter of that warrant or order ; that he hath, or at least assumes to have, a disposing power over such money or goods, and takes on him to transfer the property, or custody of them at least, to the person in whose favor such warrant or order is made. Upon this doubt, the case was referred to the consideration of the Judges ; and in September Session, 1774, Mr. Baron Perrott delivered their opinion to the following effect : the jndges are unanimously of opinion, That it is an order for the paj'ment of money within the meaning of the statute; for although no man of the name of Vennist had in fact ever kept cash at Fordyce's banking-shop, yet the nature of the order assumes that there was cash there in the name of the drawer, which he had taken upon him to transfer to the person in whose favor the order is made ; for it would be a very forced construc- tion of the statute to say, that the forgery of a fictitious name, with intention to defraud, is not within the intention of it. • ••••■■•• I Foster, P. C 119. 500 CASES ON CRIMINAL LAW. [CHAP. XLU. EEGINA V. ELIZABETH DUNN, Leach C. C. 59 [1765]. REX V. TUFT, 1 Leach C. C. 206 [1777]. At the Lent Assizes for the county of Leicester, 1777, Edward Tuft was tried before Mr. Justice Nares, for forging an indorsement on a bill of exchange. The jury found the prisoner guilty ; but the learned and humane judge, cautious of passing sentence of death in a case which admitted of doubt, submitted to the consideration of the twelve judges, whether, upon the following state of facts, the conviction was proper. The bill of exchange was the property of one William Wetheral, out of whose pocket it had been picked or lost, with other things at Leices- ter races. The prisoner had the very same night endeavored to nego- tiate it at Leicester ; but being disappointed, he proceeded to Market Harborough, where he bought a horse of one John Ingram, the landlord of the inn, and offered him this bill to change. The landlord not hav- ing cash sufficient in the house, carried it to a banker's in the town, where the clerk told him that it was very good paper, for that he knew the payee who had indorsed it, and that if he (the landlord) would put his name on the back of it, it should be immediately discounted. The landlord however, not knowing the person from whom he had received it, refused to indorse it ; but told the clerk that the gentleman was then at his house, and he would go and fetch him : accordingly he went to the prisoner, who accompanied him to the banker's. The clerk then told the prisoner, that it was the rule of their shop never to take a dis- count bill unless the person offering such bill indorsed it ; and there- fore if he (the prisoner) would indorse it, it should be discounted. The prisoner immediately indorsed it by the name of "John Williams," which was not his own name, and the banker's clerk, after deducting the discount, gave him the cash for it The prisoner, in his defence, said he had found it. The Judges were ananimously of opinion that this was a forgery ; for although the fictitious signature was not necessary to his obtaining the money, and his intent in writing a false name was probably only done to conceal the hands through which the bill had passed, yet it was a fi-aud both on the owner of the bill, and on the person who discounted it. The one lost the chance of tracing his property, and the other lost the benefit of a real [traceable?] indorser, if, by accident, the prior indorsements should have- failed. SECT. IV.] KBGINA V. MAETIN. 501 EEGINA V. SHEPPAED, 1 Leach, C, C. 265 [1781]. EEGESTA V. MAETIN, 14 Cox C. C. 375 ; 5 Q. B. D. 34 [1879]. CROWN CASES RESERVED. Case reserved for the opinion of this Court by Cockburn, C. J. The prisoner, Eobert Martin, was tried before me at the late assizes held at Maidstone on an indictment which charged him in one count with hav- ing forged, in another with having uttered, a forged order for the sum of £ 32 with intent to defraud. The facts were as follows : — The prosecutor, George Lee, is a horse dealer at Ashford, in Kent. The prisoner Martin had been for many years collector of the tolls of the markets of Ashford and Maidstone, and was well known to the prosecutor. In the course of the present year the prisoner, having ceased to hold the above-mentioned office, left the neighborhood, and went to reside in Southwark. On the 2d day of September, being again at Ashford, for what purpose did not appear, he saw the prosecutor Lee in the street in a pony cart, and accosted him, inquiring if he (Lee) had a pony for sale, whereupon the prosecutor recommended him to buy the pony he was then driving. A deal ensued, the result of which was that the prosecutor agreed to sell, and the prisoner to buy, the pony and carriage for £32. The prisoner proposing to give his check for the amount, both parties went into an adjoining inn, in order that the check might be there drawn. The prisoner then produced a printed form of check of the bank of Messrs. Wigan & Co., bankers, of Maidstone, taken from a check- book, of which he had become possessed as a former customer of the bank. This he filled up in the presence of the prosecutor with the name of the latter as payee, signed it in the name of William Martin, his name being Eobert, and delivered it to the prosecutor, who put it in his pocket without further looking at it, or observing in what name it was signed, after which he proceeded to give possession of the pony and carriage to the prisoner. On the ensuing morning the prisoner drove the pony and carriage to town, and on the day after drove to Barnet Fair, where he sold both. On the check being presented at Messrs. Wigan's bank payment was refused on the ground that the signature was not that of any customer of the bank. The prisoner had been a customer of the bank, and had had an ac- count there in his proper name of Eobert Martin, but his account re- 502 CASES ON CEIMINAL LAW. [CHAP. XLII. raaining overdrawn for some time after he had ceased to be the collector of the market tolls, and the bank insisting on the balance due to them being paid, the amount was accordingly paid on the 4th day of June, and the account was then closed. No money was afterwards paid in to prisoner's credit, nor was any check drawn by him. He asserted indeed in his defence on this charge that he had expected money to have been paid in to his account, but no evidence was adduced to show that there was any foundation for this statement. No name was men- tioned of any person owing him money, or by whom he expected money to be paid into the bank on his account. He had ceased to all intents and purposes to be a customer of the bank, and must have been fully aware that a check drawn by him on the bank would Certainly be dishonored. Under these circumstances there can be no doubt that the prisoner had been guilty of the offence of obtaining the prosecutor's goods by false pretences. But the indictment being for forgery of the check, and it appearing to me doubtful whether the charge of forgery could upon the facts proved be upheld, I reserved the case for the considera- tion of this Court. In considering this question I have further to call attention to the following facts : — The prisoner in drawing this check and delivering it to the prose- cutor did not do so in the name of or as representing any other per- son, real or fictitious. The check was drawn and uttered as his own, and it was so recei%''ed by the prosecutor, to whom the prisoner was perfectly well known as an acquaintance of twenty years' standing, and by whom he was seen to sign it. The prisoner did not obtain credit with the prosecutor by substituting the Christian name of William for that of Kobert. He would equally have got credit had he signed his proper name of Robert. The credit was given to the prisoner himself, not to the name in which the check was signed. The check was taken as that of the individual person who had just been seen to sign it, not as the check of WiUiam Martin, as distinguished from Eobert Martin, or of any other person than the prisoner. On the contrary, if the prosecutor, who knew the prisoner's name to be Robert, had observed that the signature was in the name of "William, he would in all proba- bility have suspected something wrong, and would have refused to take the check. There was nothing whatever from which the motive of the prisoner in signing a wrong Christian name could be gathered. There happened, indeed, to be a WiUiam Martin, a customer of the bank ; but this was unknown to the prisoner ; besides which, as the prisoner was perfectly aware that his person and true name were well known to the prose- SECT. IV.] COMMONWEALTH V. FOSTER. 503 cutor, it could not be supposed that he intended to pass himself off as, or the check as the check of, any William Martin other than himself The only motive which has occurred to my mind as one which might have induced him to sign a false Christian name is that he may have thought that by so doing he might avoid being liable on the check when pay- ment had been, as it was certain to be, refused. This, however, amounts to no more than conjecture. Be it as it may, and whatever may have been the motive, it occuiTed to me that, while there had been a fictitious signature to the check in question, so far as the Christian name was concerned, yet the signature having been aflSxed by the pris- oner, and the check delivered by him as his own, though there had been a signature in a fictitious name, the name could not be said to be that of a fictitious person ; and that, in this respect, the case did not fall within the principle of the cases in which it has been held that the use of the pretended name of a fictitious person amounts to forgery. I have therefore sought the assistance of the Court as to whether, under the circumstances, the affixing a fictitious Christian name to this check by the prisoner amounts to forgery as charged in the indictment. A. E. COCKBUBN. No counsel was instructed to argue. CocKBUEN, C. J. The conviction must be quashed. This case is, concluded by authority. In Dunn's Case, 1 Leach C. C. 57, the judges agreed " that in all forgeries the instrument supposed to be forged must be a false instrument in itself, and that if a person give a note entirelj' as his own his subscribing it by a fictitious name will not make it a for- gery, the credit there being given to himself without any regard to the name or without any relation to a third person." That exactlj' applies to this case. Lush, J. I had the same question before me at the last Au- tumn assizes, and I directed an indictment for false pretences to be preferred. CocKBUKN, C. J. That ought to have been done in this case. HuDDLESTON, B., LiNDLET, and Hawkiks, J. J., concurred. Conviction quashed. COMMONWEALTH v. FOSTER, 114 Mass. 311 [1873]. [Indictment containing the four counts, each for uttering a forged promissory note. The note described in the first count was signed " Little & Co."] 504 CASES ON CRIMINAL LAW. [CHAP. XLII. At the trial in the Superior Court, before Bacon, J,, the government called one George P. Little, who testified as follows ; — " I am a broker at No. 10 State Street ; have been in business for three years in State Street ; at one time I was at No. 93 Washington Street, and at another time I was at No. 26 J Exchange Street ; I was trading in real estate ; have known defendant half a dozen years ; de- fendant sent for me to come down to his oflSoe, No. 130 State Street, and I went down ; he said he wanted me to make a large note ; I said I had done business under the name of Little & Co., and he told me to sign it ' Little & Co.,' and I did so, and made the note so signed, de- scribed in the first count ; I gave the note to Foster, and he gave me ten dollars ; I had no wrong intention in making the note ; in trade it is sometimes done, that is, notes of this kind are made ; the note was made August 12, 1871." Ebenezer N. Chaddock was then called, and said he was eighty years of age, and used to follow the sea. *' In August, 1871, I held Foster's notes for a large amount ; saw the note signed ' Little & Co.' at Fos- ter's office on the twelfth or thirteenth of August, 1871, and took it of him and gave him up other notes of his and some HicksvUle stock that I had for it. He indorsed the note, waiving demand and notice, and gave it to me. He represented that this Little & Co. was a large firm doing business on Franklin Street, in Boston, and that they had a large manufactory in Charlestown," . . . David G. Ranney testified : " Am a member of the firm of James L. Little & Co., on Franklin Street ; the members of our firm are James L. Little, James M. Dunbar, David Gr- Eanney, F. W. Haynes, James L. Little, Jr., Joseph A. Tilden ; we have been thirteen years in Frank- lin Street ; no such firm as Little & Co. that I know of; this 'Little & Co.' note in the first count is not made by our firm, nor any member of it." The defendant requested the Court to instruct the jury as follows : — "1. That if the jury find that the note signed ' Little & Co.' was signed by Geo. P. Little, who had formerly been a member of the firm of Little & Co., and it not appearing that there was any other firm of the name of Little & Co., the note could not be regarded as a forgery, and therefore the defendant could not be convicted of uttering forged paper under the first count in the indictment. "2. That the note signed ' Little & Co.' being the genuine signature of Geo. P. Little, no statements by the defendant as to the members of that firm could make said note a forgery, however false those state- ments may have been, provided it is not proved that there was in point of fact another firm in Boston doing business under the name of Little SECT. rv.J COMMON WEALTH V. POSTEB. C05 & Co., and therefore the defendant cannot be convicted of uttering a forged note imdex the first count in the indietmeut." Wells, J. Two questions are pi*esented by the instructions in re- gard to the note signed " Little & Co." First, whether the fact that the manual operation of attaching the signature was performed by a person of the name of Little who had done business under the name of Little & Co. is incompatible with a verdict finding the note to be a for- gery. Second, whether it may be found to be a forgery on the part of one who procures it to be so made, intending to use it as the note of some other party or pretended party and thereby defraud another, al- though Little was innocent of fraudulent intent, and signed the note without understanding the purpose for which, it was procured. Forgery is not necessarily counterfeiting. One definition quoted approvingly in Commonwealth v. Bay, 3 Gray, 441, is " the making a false instrument with intent to deceive." In The King v. Partes, 2 Leach (4th ed.)i 775, it is defined as " the false making a note or other instrument with intent to defraud." By Gen. Sts. c, 162, § 1, " whoever falsely makes " a promissory note, " with intent to injure or defraud any person" is punishable as for the oflfence of forgery. The falsity of the instrument consists in its purporting to be the note of some party other than the one actually making the signature. The falsity of the act consists in the intent that it shall pass and be received as the note of some other party. Jf there be simulation, or any device in or upon the instrument itself, adopted to make it appear to be the note of such other party, so that the falsity and its proof are both borne upon it, no one would doubt that the charge of forgery might be maintained, notwithstanding that the sig- nature is of a name which might lawfully be used by the person who attached it to the note. It matters not by whom the signature is attached, if it be not at- tached as his own. If the note is prepared for the purpose of being fraudulently used as the note of another person, it is falsely made. The question of forgery does not depend upon the presence upon the note itself of the indicia of falsitj'. If extrinsic circumstances are such as to facilitate the accomplishment of the cheat without the aid of any device in the note itself, the preparation of a note with intent to take advantage of those circumstances and use it falsely is " making a false instrument." If Little & Co., "a large firm doing business on Franklin Street, Boston," and " having a large manufactory in Charles- town," were well known and in undoubted credit, and the Little & Co. of George P. Little were of no credit and entirely unknown, and George P. Little made and signed the note, not as his own or as the note of his firm, but solely with a view to its use as the defendant in this case 506 CASES ON CKIMINAIi LA"W. [CHAP. XLII. used it, all the elements, both of effect and intent, necessary to consti- tute the offence of forgery, would exist. The position of the case is the same, if the party defrauded knew nothing of either fii-m except from the representations of the defendant ; and the supposed makers of the note did not in fact exist at all. United States v. Turner, 7 Pet. 132. The distinction is plainlj' drawn in Commonwealth v. Baldwin, 11 Gray, 197, between one who assumes to bind another, either jointly with himself, or by procuration, however groundless and false may be his pretence of authority so to do, and one who signs in such manner that the instrument may purport to bear the actual signature of another party having the same name, and intending that it shall be so received. It purports to be the instrument of such other party, among those not familiar with his handwriting, by bearing his name ; and it is a false instrument, and falsely made, if it was so intended. Commonwealth v. Stephenson, 11 Cush. 481. The second question is, in a measure, involved in the first. To con- stitute forgery, where there has been no subsequent alteration, the fraudulent intent must attend the making of the instrument. But it is not necessary that it should be in the mind of the one whose hand holds the pen in writing the signature. If that is done at the dictation or request of another, and for his purposes and use, and his designs are fraudulent so as to make it forgery if he had written it himself, then the instrument is a forged one. Commonwealth v. Stevens, 10 Mass. 181 ; Commonwealth v. Ray, 3 Gray, 441. The circumstance that the person so emplo3^ed bore the same name as that subscribed to the instrument makes it necessary that it should be made to appear not to have been a genuine transaction ; and that the signature was not at- tached to the paper as a contract of the one who wrote it. If he signed it without understanding its purpose, thoughtlessly, or from unfamiliar- ity with business matters, or being himself deceived, he might not be guilty of a criminal offence, and yet the instrument might be a forgery, so that one who procured it to be so made might be convicted either of the crime of forgery or of uttering a forged instrument. Meceptions overruled. Section 5. Untedthfulness AMOuNrrNG to Fictitiousness. (Ante- dating Instrdments.) EEX V. LEWIS, Foster, C. C. 116. REGINA V. RITSON, 11 Cox C. C. 352. CHAP. XLIII.] EEGIKA V. HEYWOOD. 507 CHAPTER XLIII. Uttering Forged Writings. EEGINA V. HEYWOOD, 2 C. & K. 352 [1847]. The prisoner was indicted for uttering a certain writing as and for a copy of a man'iage certificate, he knowing the same to be forged. The prisoner was indicted under the 11 Geo. IV. & 1 "Will. IV., c. 66, § 20, which enacts, "That if any person shall knowingly and wilfully insert, or cause or permit to be inserted, in any register of baptisms, marriages, or burials, which hath been or shall be made or kept by the rector, vicar, curate, or officiating minister of any parish, district par- ish, or chapelry in England, any false entry of any matter relating to any baptism, marriage, or burial, or shall forge or alter in any such register any entry of any matter relating to any baptism, mar- riage, or burial, or shall utter any writing as and for a copy of an entry in any such register of any matter relating to any bap- tism, marriage, or burial, knowing such writing to be false, forged, or altered . . . every such oflfender shall be guilty of felony," etc. ; and the facts of the case were as follow : The prisoner, who was a printer, had been paying his addresses to one H. B., who had become pregnant by him ; and, in order that the father of H. B. might be induced to consent to her cohabiting with the prisoner, the latter procured the marriage-lines of another person, printed a copy thereof, leaving cer- tain blanks, and filled up these blanks with his own name and that of H. B., at the same time adding the name of the parish clergyman as having performed the ceremony, and that of the parish clerk, as having been witness thereof. He then gave the pretended certificate, so filled up, to H. B., in order that she might show it or give it to her father, and this H. B. accordingly did. On these facts being stated in the opening of the case for the prosecution, Alderson, B., said: If j-ou can show no uttering, except to H. B., who was herself a party to the transaction, I think you will fail to show an uttering within the statute. It is like the case of one accomplice delivering a forged bill of exchange to a,nother, with a view to uttering it to the world. Accordingly the prisoner was acquitted. 508 CASES ON CEIMINAL LAW. [CHAP. XLIII, REGINA V. RADFORD, 1 Den. a C. 59 [1844]. CROWN CASE RESERVED. Joseph Radford was convicted before Mr. Baron Gurney, at the Winter assizes for the county of Chester, a.d.^ 1844, for uttering a forged receipt for £ 5 14s. &d., in different counts, with intent to de- fraud Mr. Lee, Greorge Turner, and others. The prisoner was a stonemason, and purchased stone at a quarry the property of Mr. Lee. At the time of the dealing tlie quarry was managed by George Turner. The prisoner incuiTed the debt of £ 5 14s. 6c?. on the 6th July, 1840. An invoice was sent without anj' receipt. The prisoner was repeatedly applied to for payment, and made re- peated promises of payment. At last, in July, 1844, he for the first time alleged that he had paid for the stone at the time (1840) and that he had a receipt signed by Turner. On tMs Forster, who had succeeded Turner as manager, went over to him 17th August, the prisoner produced the receipt and exhibited it to him to look at, but would not part with it out of his hand. On the 21st August, Forster returned to him talsing Turner with him, and again called on him to produce the receipt. He did produce and held it up for him and Turner to look at, but refused to part with it out of his hand. Mr. Forster, however, got it from him and he was apprehended. Townsend, for the prisoner, contended that this was not an uttering, and cited the ease of Rex v. Shukard, Russ. & Ry. 200. The learned Baron inclined to think that the exhibiting it to the per- son with whom he was claiming credit for it was an uttering and pub- lishing, even though he had not parted with it out of his hand, but he forbore passing sentence, and reserved the point for the consideration of the Judges. On the evening of Feb. 14, 1845, the case was argued at Seijeants* Inn before eleven of the Judges. The Court took time to consider. The Judges were of opinion that there was an uttering ; and that the conviction was right. At the following Spring assizes the prisoner was sentenced. ... CHAP. XLin.] EEGrNA V. ION. 609 EEGINA V. ION, 2 Den. C. C. 475 [1852]. CROWN CASE RESERVED. At a session of Oyer and Terminer and Gaol Delivei-y, holden for. the jurisdiction of the Central Criminal Court, in December, 1851, Wil- liam Ion was tried before the Eight Hon. J. S. Wortley, Recorder of London, upon an indictment for feloniously uttering, disposing of, and putting off a forged receipt for £2 4s., knowing, etc., with intent to defraud. It appeared in eYidence that the prosecutor, James Dwyer, was a money lender ; that one James Gillard had applied to him for a loan of money, and had proposed the prisoner as a surety for the amount.. That thereupon the prosecutor proceeded to the house of the prisoner for the purpose of satisfying himself as to the prisoner's responsibility, and with this object required the production of the prisoner's receipts in respect of that house. That-the prisoner, with the view of causing the money to be advanced to Gillard (who was found to be a man of no re- sponsibility) upon their joint security, produced to Dwyer and placed in Ms hands (but for the purpose of inspection onty) three documents pur- porting to be receipts for poor rates in respect of the said house, one of which was the forged receipt in question. The prosecutor inspected these documents, the prisoner remaining present during such inspec- tion; he then received back the documents from the prosecutor and placed them upon a bill file. The foregoing facts comprised the utter- ing, disposing of, and putting off mentioned in the indictment. It was objected upon the trial that these facts did not amount to an uttering, disposing of, or putting off sufficient to support the indictment. The learned Recorder, however, ruled the contrary, and as the other necessary facts were proved to the satisfaction of the jury, they^found the prisoner guiltj'. The jury also found, expressly in answer to a question put to them, that the prisoner placed the receipt in the hands of the prosecutor for the purpose of fraudulently inducing him to ad- vance the money to Gillard. Considering it doubtful whether he was correct in his ruling, the learned Recorder postponed judgment upon the indictment, and com- mitted the prisoner to the jail of Newgate, in order that the 510 CASES ON CRIMINAIi LAW. [CHAP. XLIII. opinion and decision of the judges might be taken upon a case to be stated. On the 24th April, a.d. 1852, this case was argued before Jervis, C. J., Alderson, B., Coleridge, J., Wightman, J., and Talfourd, J. On the 29th May, a.d. 1852, the judgment of the Court was given by Lord Campbell, C. J. We are of opinion that this conviction ought to be affirmed. Upon consideration there clearly seems to us to have been an uttering of the forged receipt within the meaning of 11 Geo. IV. & 1 Wm. IV. c. 66, § 10. If it had been used in the manner stated for the direct purpose of gaining credit for the payment which it purports to vouch, there can be no doubt, since the case of R. v. Radford,^ that there would have been a sufficient uttering. But the prisoner's counsel contended that there cannot be an uttering of a forged receipt unless it be used directly to gain credit upon it by its operating as a receipt ; so that merely using this receipt for the purpose proved, to induce a belief that he had paid the money, and therefore was a mar^,of substance, does not amount to an uttering within this act of Parliament. R. v. Shukard,^ which was mainly relied upon for this distinction, does not seem to us to support it. That case is entitled to the highest respect, and upon similar facts we should submit to its authority. But the learned Judges there did not proceed upon the distinction that to make the using of a forged negotiable instrument a felonious uttering, the intention of the prisoner must be to gain credit upon it by making it operate as such. They appear to have thought that there the evidence was not sufficient to show an intention in the prisoner to induce the innkeeper to advance any money or to give credit upon it to him. The doctrine supposed to be established by that decision is, " that in order to make it an utter- ing it should be parted with or tendered or used in some way to get money or credit upon it." The words " upon it" we consider as equiv- alent to "by means of it ; " otherwise there could hardly be an uttering of Court rolls and other instruments enumerated in the statute. In the present case it is expressly found " that the prisoner placed the receipt in the hands of the prosecutor for the purpose of fraudu- lently inducing him to advance money to Gillard." This was a using of the forged receipt to get money upon it or by means of it, as much as if the prisoner himself had been to the borrower of the money, and the receipt had purported that he had paid the rates, and the prosecu- tor had thereupon advanced him a sum of money, and had been cheated out of it by him. 1 Den. C. C. 59, " Euss. & Ry. 200. CHAP. XUV.] THE KING V. HAEVEY AITO CHAPMAJST. 511 We, therefore, think that the conviction was according to decided cases and sound principles of law. « EEGINA V. TAYLOR, 4 F. & F. 511 ; ABOVE, p. 125. EEGINA V. FINKELSTEIN, 16 Cox C. C. 107 ; above, p. 127. CHAPTEE XLIV. Libel. THE KING V. D. W. HARVEY and CHAPMAN, 2 B. & C. 257 [1823]. This was an information filed by his Majesty's Attorney-General against the defendants, for a libel, contained in a newspaper of which the defendant Harvey was the proprietor and the other defendant the printer and publisher. The libel was the leading article in the paper, and headed " Latest Intelligence — The King," and began in the following words : " Attached as we sincerely and lawfully are to every interest connected with the sovereign, or any of his illustrious relatives, it is with the deepest concern we have to state that the malady under which his Majesty labors is of an alarming description. It is from authority we speak." The libel then stated several facts relating to the king's illness, and concluded by alleging that his disorder was of an hereditary description. At the trial before Abbott, C. J., at the London sittings after last term, the publication of the libel was proved in the usual manner, and it was admitted by the counsel for the defend- ants, that the libel imported that the king labored under insanity, and that assertion was untrue ; but it was urged to the jury that the defen- dants believed the fact to be true, and that they were warranted in so doing by rumors which had been very prevalent on the subject. The Lord Chief Justice, in his address to the jury, after stating the import of the publication, proceeded as follows : "To assert falsely of his Majesty, or of any other person, that he labors under the affliction of mental derangement, is a criminal act. It is an offence of a more 512 CASES OK CRIMINAI/ LA-W. [CHAP. YT.Ty , aggravated nature to make such an assertion concerning his Majesty than concerning a subject, by reason of the greater mischief that may thence arise. " It is distinctly admitted by the counsel for the defendants, that the statement in the libel was false in fact, although they assert that rumors to the same effect had been previously circulated in other news- papers. Here the writer of this article does not seem to found himself upon existing rumors, but purports to speak from authority ; and inasmuch as it is now admitted that the fact did not exist, there could be no authority for the statement. In my opinion the publication is a libel calculated to vilify and scandalize his Majesty, and to bring him into contempt among his subjects. But j'ou have a right to exercise your own judgment upon the publication, and I invite j-ou so to do." After the jury had retired about two hours they returned into court, and the foreman said that the jury wished to have the opinion of the Lord Chief Justice, whether it was or was not necessary that there should be a malicious intention to constitute a libel. To this question the Lord Chief Justice returned the following answer: " The man who publishes slanderous matter, in its nature calculated to defame and vilify another, must be presumed to have intended to do that which the publication is calculated to bring about, unless he can show the contrary ; and it is for him to show the contrarj'. There may indeed be innocent publications of that which, in its own nature, is injurious to another, as, for instance the delivery of a book con- taining libellous matter to a magistrate; but the general rule is, that a person must be taken to have intended to do that which his act is calculated to effect." The jury again retired for about three hours, and then returned a verdict of guilty, but recommended the defendants to mercy. Baylet, J. It appears to me that this case was properly presented to the consideration of the jury in the first instance ; and that the answer given by my Lord Chief Justice to the question put to him by the jurj' was perfectly correct. Assuming it to be a question of fact whether the jury were to infer malice or not, the evidence upon that point was all one way, and that being so, it was the duty of the jury to act upon that evidence and find the defendants guilty. It is impos- sible to form an accurate judgment of the direction to the jury, with- out adverting to the terms of the libel itself. It contains not merely an assertion of a fact which a party may suppose to be true, and with respect to which he assumes to have had only ordinary means of knowledge, but it is such an assertion, that if it were a bona fide assertion, the means of proving it to be so must be within the writers own. He does not merely say that such a fact exists, but he assumes CHAP. XLIV.J THE KING V. HABVEY AKD CHAPIVIJLN. 513 to speak from authoritj'. It is conceded, that to state falsely of his Majesty that which is stated in this publication is a libel. If it be not so, the objection will be upon the record, and may be taken advantage of either upon writ of error or by a motion in arrest of judgment. But, as at present advised, I am of opinion that falsely making that assertion was evidence that the party made it maliciously. A distinc- tion has been made between an untrue and a false assertion, and it has been argued that if a partj' assert a particular fact, believing that the fact exists when it does not, although that be an untrue assertion, j-et there is no criminality in it, but that if he assert that which he knows to be untrue, that is a criminal untruth or a falsehood. Assuming that that is a well-founded distinction, I think that if a party knowing a fact not to be true, or not having the means of knowing whether it be true or not, takes upon himself to assert that it is so, then he makes a false assertion, or is guilty of a criminal untruth, if it turns out that his assertion is unfounded. In the one case the criminality consists in asserting that which he knows not to be true, in the other he is making an assertion unwarrantably, when he does not know whether it be true or not. There are authorities to show that if a man will take upon himself to swear to a thing when he does not know whether it be true or false, he is liable to be indicted for perjury, if his testimony prove to be false. Now, is the assertion in this case to be considered false or not, in the latter sense of the word ? A party making such an assertion may or may not have the means of knowing the state of his Majesty's health, but here the writer takes upon himself to state that he has authority for stating such and such facts. Now if he had such authority, he had the means of proving it to the jury, and of showing that the character of untruth belongs to it only, and not, that of falsehood or criminal untruth ; but inasmuch as he has not shown that he had any authority for stating the fact, it must be taken that he had none, and that it was a false assertion, which disposes of one ground upon which this motion was made. Then the other question arises, whether the defendant is to be considered as having published the libel with a malicious intention. Assuming malice to be necessary in all cases to constitute a libel, I take it to be established by manj' authorities, to some of which I have referred in the course of the argument, that a party must be considered, in point of law, to intend that which is a necessary or natural consequence of that which he does. If I utter defamatory language of a particular person, the presumption is that I mean to do him a mischief. My assertion of a fact defam- atory with regard to him, will materially prejudice him in the eyes of all the persons who hear or read what is said of him. The King v. Creevey, 1 M. & S. 273, is a strong authority to show that the answer given by 33 514 CASES ON CRIMINAL LAW. [CHAP. XLIV. the Lord Chief Justice to the question put by the jury was perfectly correct. That was an indictment against.tbe defendant for publishing a libel of one Kirkpatrick, an inspector of taxes. The libel purported to be an account of a speech delivered by the defendant in the House of Commons, but it was published by him as a correct report of such speech. It was objected at the trial, that there was not any proof of malice, so as to make the publication libellous. The case was tried before Mr. Justice Le Blanc, a man of great talent, accuracy, and firmness ; and he was of the opinion that it was not necessary to prove malice, but that it might be inferred from the publication itself, and he told the jury that they were to look both to the matter and the manner of the publication, in order to decide whether it was libellous or not. The defendant having been found guilty, a motion was made for a new trial. The rule was refused, and Lord EUenborough says, " The only question is whether the occasion of the publication rebuts the inference of malice arising from it," and Le Blanc, Justice, stated " that he had told the jury to consider whether the pubUcation tended to defame the prosecutor, giving his opinion that it did, but still leaving the question to them ; and he further stated to them that where the publication is defamatory the law infers malice, unless anything can be drawn from the circumstances of the publication to rebut that inference." I cannot distinguish that case from the present. Here, the publication was of a matter which, if false, it is now conceded was libellous. Now this decision says that malice ought to be inferred from the publication of defamatory matter, unless some excuse for the publication be shown. The onus, therefore, of negativing malice is properlj- cast upon the defendant, for where the natural inference from the publication is that it is malicious, the party seeking to exempt himself from such natural inference, must do it bj' showing something te rebut the inference, otherwise arising from his act. Here the defen- dant might have adduced evidence for that purpose ; he might have shown what his authority was. In the absence of any such evidence I think the intention was naturally and properlj' to be drawn from the libel itself, and, consequently, that there is no foundation whatever for disturbing the verdict. HoLROYD, J. I am of the same opinion. This is a charge for a publication of a libellous nature, and of a description not only injurious to the individual to whom it relates, but mischievous to the public, inasmuch as it was calculated to excite gi"eat alarm in the minds of the people as to the state of his Majesty's health. Now if a thing in itself mischievous to the public be wrongfully done, that is an indict- able offence. It is not necessary to aver in such an indictment any direct malice, because the doing of such an act without any excuse CHAP. XUV.] THE KING V. HAEVEY AKD CHAPMAN. 515 is indictable. In some cases, as in that of murder, malice is the very gist of the oflfence, but in larceny, malice is not an ingi'edient. In this case, the act done was mischievous to the public. It appears, therefore, that it was not absolutely essential- to aver malice in this indictment, or to prove it at the trial ; but it is unnecessary to discuss that point, because I think that, upon the rules and principles of the common law, malice was to be inferred from the evidence laid before the jury, and the jury were bound, in the discharge of their duty, to act upon those rules and principles, and to apply the law to the facts before them. The publication in this case assumes the knowledge of the fact which it alleges. It states that the writer had it from authority, and whatever may be the import of that word, if there was any authority to justify or excuse the publication, it ought to have been shown by the defendant. For if the matter published was in itself mischievous to the public the very act of publishing is prima fade evidence to show that it was done malo animo ; for when a publication having such an injurious tendency is proved, it is intended to have been done with a malicious intention, because the principle of law is, that a party must always be taken to intend those things and those effects which naturally grow out of the act done. If, therefore, the effects naturally flowing from the act of publishing the libellous matter in this case were mischievous to the public, it follows, that the judge was bound to tell the jury that malice was, by law, to be inferred ; and that having been proved which, according to the principles of law, made the inference of malice necessary, the onus of rebutting that inference was cast upon the defendant. It is said, however, that my Lord Chief Justice was bound to answer the abstract question put by the jury, but I am of opinion that a judge is not bound to answer any question put by the jury, except so far as it is material to the matter which the jury have to decide ; and in this case if the jury were satisfied, from the answer given, that it was to be presumed that the defendant intended the consequences which would naturally follow from his act, they must at the same time have been satisfied there was sufiicient proof of malice, and therefore there can be no ground for disturbing the verdict. Best, J. The paper set forth in this information is most correctly called by it a false, scandalous, and malicious libel. We have been told by the defendant's counsel, that malice is the gist of this prosecu- tion. I accede to this, but we must settle what is meant by the term malice. The legal import of this differs from its acceptation in com- mon conversation. It is not, as in ordinary speech, only an expression of hatred or ill-will to an individual, but means any wicked or mis- chievous intention of mind. Thus, in the crime of murder, which is 516 CASES ON CRIMINAL LAW. [CHAP. XLIV. always stated in the indictment to be committed with maUce afore- thought, it is neither necessary, in support of such an indictment, to show that the prisoner had any enmity to the deceased, nor would proof of absence of ill-will furnish the accused with any defence, when it is proved that the act of killing was intentional, and done without any justifiable or excusable cause. Malice, in the law relative to libels, means legal malice. The only question which the jury had to decide was, whether a paper which falsely represented that the sovereign of the country was insane and, so, incapable of discharging the duties of his office, was a mischievous paper ; no men, whose minds were not disordered, could hesitate how to decide such a question. It is not possible to imagine any publication more calculated to produce irritation and disorder throughout the couutry, and the publishers must be taken, according to legal reasons, to have intended to produce those consequences which it was calculated to produce. The defend- ants were not charged with a libel published from motives of personal hatred to the king, but with a false report of the state of his Majesty's mind, made with a view to disturb the peace of the country. It was admitted at the trial that the libel was false, but it was at the same time insisted, that the defendants, at the time when they published it, did not know it was false. They say they publish from authority, and thereby undertake to be responsible for its truth. But whether'a publication be true or false is not the subject of inquiry in the trial of an information for a libel, but whether it be a mischievous or innocent paper. In the position in which this case now stands, it is not necessary to decide whether the defendants would have been justified had the statements been true. But it must not be taken for granted that if such a dreadful affliction had happened to the country as the insanity of the king, the editor of a newspaper would be justified in publishing an account of it at any time, and in any manner that.he thought proper. It is fit the time and mode of such a commu- nication should be determined on by those who are best able to provide against the effects of the agitation of public feeling which it is likely to produce. A reasonable time should be left to the constituted authorities to give the nation such afflicting intelligence. During that time decencj' requires that all persons should be silent. If such a com- munication should be improperly delayed, the fair liberty of the press would allow any person to call the attention of the nation to the cir- cumstance. But such a communication, rashly made, although true, might raise an inference of mischievous intention, for truth may be published maliciou.sly. Abbot, C. J. My learned brothers having delivered their opinion, that nothing which fell from me, in my address to the jury, furnishes CHAP. XLrV.] HOAEE V. SILVEELOCK. 517 sufficient ground for granting a new trial, it is perhaps unnecessary for me to say anything ; I cannot, however, forbear making one or two observations. If it be true that a malicious intention be necessary to render amenable to the law a person who publishes defamatory matter, — I say that unless that malicious intent may be inferred from the publication of the slander itself, in a case where no evidence is given to rebut that inference, the reputation of all his Majesty's sub- jects, high or low, would be left without that protection which the law ought to extend to them. I will say further, with regard to the par- ticular expression contained in this publication, that if any writer thinks proper to say that he speaks from authority when he informs his readers of a particular fact, and it shall turn out that the fact so asserted is untrue, I am of opinion that he who makes the assertion in such a form may be justly said to make a false assertion. I am not a sufficient casuist to say that to call it an untrue assertion would be a more proper mode of expression. Hule refused. HOAEE V. SILVEELOCK, 12 Q. B. 625 [1848]. Case. The third count stated that defendant, further contriving, etc., afterwards, to wit, etc. (25th July, 1846), in a public newspaper called The Nautical Standard and Steam Navigation Gazette, falsely and maliciously composed and published, and caused and procured to be published, of and concerning plaintiff, and of and concerning her said application to the said Society, another false, scandalous, malicious and defamatory libel, containing amongst other things, the false, etc. , matter following, of and concerning the plaintiflF, and of and concerning her said application to the said Society, viz. : " The Eoyal Naval Benevolent Society. We were sorry to perceive, by a report of last Monday's proceedings at a meeting of the above Society, that the case of Miss Hoare (meaning the plaintiff), which we imagined had been entirely dismissed by the unanimous decision of a large body of officers of high rank and distinguished position in the service at the last quar- terly court, had been reopened, and that too by an officer distinguished no less for his illustrious services against the enemy than his noble descent. The gallant Rear Admiral, the Earl of Cadogan, has happily been a stranger to those scenes which have occurred at the former meetings of this society when the case of the above misguided woman has been brought forward. But, if he has escaped the exhibition of such conduct on the part of one or two officers who would by the dis- 618 CASES OK CKIMINAL LAW. [CHAP. XLIV. play be certainly very much lowered in his estimation, his lordship has unfortunately also missed the hearing of an overwhelming mass of evidence which is a complete justification for the Society's decision with respect to the claims of Miss Hoare, to say nothing of the recan- tation of some who were her warmest friends, and who, in giving up their advocacy of her claims, stated that they had realized the fable of The Frozen Snake." " Let the noble Earl go to the Society's offices and examine carefully the documents, and make himself acquainted with the whole of the proceedings of the secretary and the Society in this matter, and he must come to the conclusion that the case of Miss Hoare is a most forlorn hope, and that, unfortunately', many much more worthy objects of the Society's benevolence are excluded from partici- pation in it by the limited state of its funds." The fourth count charged, with the same averments as were made in the third, publication in the above-mentioned newspaper by defend- ant on August 8th, 1846, of a libel containing the following passages : ' ' Sir, having attended the meetings of the Royal Naval Benevolent Society, and witnessed the painful and strong disputes in the case of Miss Hoare, I am led somewhat reluctantly to address these few ob- servations to you in justice to our worthy secretary-, and on behalf of our charitable institution, which has been upon recent events the scene of much discord and so very disreputable to the Society. The impor- tunities of Miss Hoare and her supporters, although they have been upon every occasion outvoted bj' a very large majority of the members of the institution, have nevertheless operated in no small degree to suppress the contributions of several benevolent persons who, opposed to strife, would have added their pecuniary assistance to the naval widow and orphan but for our calamitous disunion. For one, I am determined to withdraw my subscription should any of our funds be granted to Miss Hoare : but I hope and trust the good sense of the members at our next meeting will, as heretofore, prevail, and reject forever the unworthy claims of Miss Hoare." "JBold and strong measures ought to be adopted to prevent the reopening of Miss Hoare's case which, in other words, means the renewal of an unjustifiable anc^ apparently vindictive attack on the secretary. Who is this woman, that she is to engross almost the whole of the time of the Society? She is not entitled, as the descendant of a subscriber or in her own right, to relief ; and it is avowed by her friends that she squandered away the money which she did obtain from the benevolent, in printing circulars abusive of Commander Dickson. Really, it is time that all this twaddle about humanity, and this display of knight-errantry in defence of a slanderous and forlorn damsel, should be laid aside." " The charge must be made against Commander Dickson, and, if it CHAP. XLIV.] HOAEE U. SILVEftLOOK:. 519 be not made, then let the case of Mis9 Hoare be buried in oblivion, and let not the discord which it has caused longer prevent the benevolent from subscribing for the widow and orphan," etc. There was a fifth count, for another libel. On the trial, before Coleridge, J., at the sittings in Middlesex after Michaelmas term, 1847, a verdict was found for the plaintiff, and damages assessed generally, on the last three counts. Lord Denman, C. J. There is no ground for our interference. The third count is certainly good. We are not called upon here to take judicial notice that the term " Frozen Snake " had or had not the meaning ascribed to it by the plaintiff, but to say, after verdict, whether or not a jury were certainly wrong in assuming that those words had the particular meaning. They are words well understood ; there is no doubt that they are commonly known in a libellous sense ; it must, here, have been left to the jury to say whether they were used in that sense or not ; and we must take it that thej' considered them as so applied. None of the cases sustain the objections here made. In Eobinson v. Jermyn* the supposed libel alleged only that the pro' prietors of a subscription-room did not think the plaintiff a fit person for their company, and therefore excluded him from their room, which might be rather a compliment than a reproach. The " Friday" alluded to in Forbes v. King " was a very respectable person ; black men have not been declared to be criminal by any act of parliament. The fourth count is certainly injurious to the plaintiff ; for it describes her as an applicant to the Society for charity, but unfit to receive it, because she employs the money she obtains from the benevolent in circulating abuse of the secretary. Patteson, J. The principal question before us has been whether these words, — "to say nothing of the recantation of some who were her warmest friends, and who in giving up their advocacy of her claims, stated that they realized the fable of the Frozen Snake — " could im- port, on the face of them, anything slanderous. If they could not, I am not prepared to say that judgment should not be given for the defendant on the third count, as upon demurrer. But, if they are capable of a libellous sense, it rnay be material that the jury has found that they were used in that sense. Then as to the question whether an innuendo was necessary, I think it was not. Any ordinary person would be able to say what the allusion was ; and the jury have found it. As to the fourth count ; the expression " unworthy" claims " alone, is strong ; and then it is added " Who is this woman, that she is to engross almost the whole of the time of the Society? She is not en- 1 1 Price, 11. " 1 Dowl. P. C. 672. 520 CASES ON CRIMINAL LAW. [CHAP. XXIV. titled, as the descendant of a subscriber or in her own right, to relief: and it is avowed by her friends that she squandered away the money which she did obtain from the benevolent, in printing circulars abusive of Commander Dickson." These words manifestly infer misconduct, and tend to bring the plaintiff into contempt, and set the readers against her as a person who has misconducted herself towards this Society. CoLEKiDGE, J. As to the necessity of an innuendo, the jury and court in such a case as this are in an odd predicament, if they alone of all persons are not to understand the allusion complained of. Sup- pose the libel had said the plaintiff acted like a Judas: must the history of Judas have been given, and referred to by innuendo? We ought to attribute to a court and jurj' an acquaintance with ordinary terms and allusions, whether historical, or figurative or parabolical. If an expression, originally allegorical, has passed into such common use that it ceases to be figurative and has obtained a signification almost literal, we must understand it as it is used. Half of our lan- guage is founded upon allegorical allusion : " vinegar" is talked of in describing a bad temper; even the word "sour" is figurative. We must understand such terms according tb the sense which has become familiar. Eaele, J. In this case the jury had decided on the sense of the words mentioned in the third count ; and we cannot arrest the judg- ment unless we see, on reading the whole passage complained of, that there could be no ground for the construction they have adopted. Nothing is easier than to bring persons into contempt by allusion to names well known in history, or by mention of animals to which cer- tain ideas are attached ; and I maj^ take judicial notice that the words "Frozen Snake" have an application very generally known indeed, which application is likely to bring into contempt a person against whom it is directed. I also think the fourth count libellous by the tendency it has to lower the plaintiff's character. Mule discharged. COX V. LEE, L. R. 4 Ex. 284 [1869]. The cause was tried before Pigott, B., at the Leicester spring assizes, 1869. The publication by the defendant of the libels was proved,' and it appeared that the facts with respect to the alleged loan were as fol- lows : The plaintiff conducted the Advertiser in partnership from 1850 to 1857 ; in the latter year he bought out his partner, and on that ' The gist of the libellous charges was ingratitude. CHAP. XLIV.] COX V. LEE. 521 occasion (as he swore) an offer of assistance was made to him by Mr. Frewen, but (as Mr. Frewen swore) a request for assistance was made by him to Mr. Frewen ; no monej', however, was then advanced, but in 1863 the plaintiff requiring money to pay off a sum which he had borrowed to enable him to work the paper, did obtain a loan of £300 from Mr. Frewen, which was to be paid off by instalments of £100 per annum, with 5 per cent interest ; in 1865, however, the plaintiff hav- ing privately remonstrated with Mr. Frewen on his political conduct, and urged him to retire from the then impending election contest, Mr. Frewen required the whole of the remaining debt to be paid off at once, and this was accordingly done. A verdict was found for the plaintiff, damages £20. In Easter Term a rule was obtained to arrest the judgment, on the ground that none of the counts in the declaration disclosed any cause of action ; or for a new trial on the ground that the learned judge ought to have directed the jury to find for the defendant on both issues, and also on the ground that the verdict was against the weight of the evidence, and that the damages were excessive. Kellet, C. B. The verdict being for general damages not appor- tioned to the several counts, if any one bad count is joined with the others the verdict cannot stand. We are, therefore, called on to deter- mine, not whether a libel was in fact published, but whether what the plaintiff has published has been so stated that it was competent to the jury to find a verdict and give damages upon that statement. The allegation in the counts most questioned is, that when the plaintiff wanted to purchase a newspaper he had no money to buy it with, and made one or more urgent applications to Mr. Frewen for a loan, which had since been honorably repaid. It is impossible to consider the ques- tion raised on this statement fairly without putting one's self in the po- sition of the plaintiff, and seeing whether it would not be painful to his feelings to have such statements made at a public meeting, in the county where he resides and publishes his newspaper, by a gentleman of considerable standing and position in that county. Without refer- ence to the bearing of that statement on the charge of ingratitude, and the question whether it would or would not lead those who heard it to the inference that a person so acting as was described was guilty of ingratitude, to say of a man, prosperous and in independent circum- stances, that when he wanted to purchase the property he now owns he had not money to pay for it, and made urgent application for a loan to another person, does in itself convey a reflection on the person thus spoken of, not only likely to be painful to his feelings, but also likely to impair his credit and reputation in the country. A charge pointing to anything like inability in respect of pecuniary resources would, to 522 CASES ON CEIMINAL LAW. [CHAP. XUV. persons reading such a statement in a public newspaper, tend to injure his position in the world. [After referring to the question of damages, which he held not excessive, the learned judge proceeded] : "We are further called upon, on the facts actually proved, to determine, not only whether the publication could or could not be libellous, but to say that it was of such a nature that the question ought not to have been left to the jury. But it is only when the judge is satisfied that the pub- lication cannot be a libel, and that, if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognizance. Here, on the contrary, I am of opin^ ion that the learned judge was fully justified in leaving the question to them, and that their finding is according to the evidence. Bramwell, B. I also think this rule must be discharged. The libels complained of charge the plaintiff with ingratitude ; for though facts are added, j'et the obvious meaning of the statements is to make this accusation. It is clear that if ingratitude is charged generally, without any reason being given, it is libellous ; and the validity of the first count is not questioned. But with respect to the other two it is said that they disclose no cause of action, because Mr. Frewen shows what it is that he calls ingratitude, and thereby shows that it is not such in fact. But though it is true that he states some reasons which induce him to come to the conclusion that the plaintiff was ungrateful, there still remains the charge of ingratitude, and any one hearing it might well say : " The facts stated no doubt existed, but inasmuch as they do not show any ingratitude, that charge must be made because of some- thing else not mentioned." But, further, I think the libels not only contain a charge of ingrati- tude, but also show its existence, supposing the facts truly stated. For, though it is easy to say that it is the duty of a patriot, if he sees an unfit man aiming at the possession of a public post, to say he is un- fit, this is, like gratitude itself, a duty of imperfect obligation, and not such as would necessarily relieve him in its performance from the charge of ingratitude. Suppose that, having applied with great urgency to Mr. Frewen to lend him money, Mr. Frewen had done so, and then, without any further circumstances, the plaintifl" had with- drawn his support from Mr. Frewen, and said that he was not a proper person to stand for the county, would it not have been ungrateful? I think it would. But supposing it was his duty to point out Mr. Frewen's unfitness, it might have been done in another Way than that adopted, which casts ridicule upon his candidature and charges him with indis- cretion. I think that it would have been ungrateful in the plaintiff to write thus of one to whom he was under the obligation I have sup- posed ; the defendant's argument therefore fails, even on this ground) CHAP. XLIV.] COX V. LEE. 523 for the libel stated in the declaration not only charges ingratitude, but shows that it exists. Then it is argued that in that case the libel is at any rate justified, because the statement it makes is true. But this is not so ; and, on the contrary, if the true facts had been stated, they would have shown that there was no ingratitude at all, for it appears that, on the plaintiff telUng Mr. Frewen that he would no longer support him, Mr. Frewen required the repayment of the money, and thereupon the money was, in fact, repaid. Now, I think that cancelled the former obligation, and left the plaintiff at liberty to write as he did. If these facts had been stated, the case would have gone a long way to raise the point insisted on by Mr. Bulwer, for then, at the same time with the charge of ingratitude it would have been shown that there was nothing un- grateful in the plaintiff's conduct ; the added circumstances would have qualified the charge of ingratitude, not in the sense of making it justifi- able, but in the sense of diminishing the probability of its injurious effect. Therefore the defendant's case fails : first, on the ground that a charge of a moral offence is made, and assuming that the circum- stances stated in support of it do not warrant the opinion founded on them, it does not cease to be a libel, for it raises a doubt whether there are not some other facts which would justify the charge ; and, secondly, because if no further facts existed than were stated, a case of ingrati- tude was shown ; and, though the facts might be true, so far as they were stated, other facts were not stated, which existed and which would have shown that the plaintiff was not open to the charge of ingratitude. I may say that these observations are directed partly to that portion of the rule which seeks to arrest the judgment, and partly to that por- tion which asks for a new trial. Channell, B. I am of the same opinion. A judge would do wrong if, in an action for libel, he told the jury distinctly that the plaintiff had a cause of action, or if he told them distinctly that the plaintiff had not a cause of action. In Parmiter v. Coupland, 6 M. & W. 105, Parke, B., after referring to Mr. Fox's Act,^ by which, as he observes, indictments for libel were put upon the same footing as other criminal charges, says,'' " It has been the course for a long time for a judge, in cases of libel, as in other cases of a criminal nature, first, to give a legal definition of the offence, and then to leave it to the jury to say whether the facts necessary to constitute that offence are proved to their satisfaction ; and that, whether the libel is the subject of a crim- 1 32 Geo. m., c. 60, § 2. 2 6 M. & "W. at p. 107. 524 CASES ON CRIMINAL LAW. [CHAP. XLIV. inal prosecution or civil action." My Brother Pigott has therefore given the proper direction to the jury ; and certainly when, at a public meeting, words are used which are repeated in a public newspaper, and which charge the defendant with ingratitude, that sufficiently raises a question for the jury, whether they were not made use of under such circumstances, and in such a manner, as to make them libellous. There can be no doubt that the charge is in itself as opprobrious" as any that can be made. Therefore, although you couple it with other matters, which tend to explain the charge, it is still a question for the jury whether the language was made use of in such a mode and under such circumstances as to justify a verdict for the plaintiflf. Pigott, B. At the trial I exactly followed the rule laid down by Parke, B., in the passage cited by my Brother Channell defining to the jury what in law amounted to a libel, and leaving the question of libel or no libel to them. My Brother Bramwell has clearly pointed out that the charge was made, not in such a manner as to disprove it, but rather to add to it force and point ; and much must always depend upon the attendant circumstances. As to the charge of ingratitude being in itself calculated to bring into contempt and disrepute, no one can deny it who considers in what light it is regarded by poets and moralists, who are the mirrors and exponents of the universal feelings and judgment of mankind. I think, if I committed any error, it was an error rather in favor of the defendant. Mule discharged. COMMONWEALTH v. CLAP, 4 Mass. 163 [1808]. The defendant was indicted for making and publishing the following malicious libel against one Caleb Hay ward, an auctioneer, and posting it up in several public places in State Street, in Boston, viz., "Caleb Hayward is a liar, a scoundrel, a cheat, and a swindler. Don't pull this down." Upon the trial at the last November term before Parker, J., the counsel for the defendant insisted upon their right to prove the truth of the matters charged in the libel, and stated that if permitted, they could prove that, in a course of dealing between the defendant and Hayward, the latter had defrauded the former ; and particularly that, upon a reference of certain disputes between them, Hayward had, by means of misrepresentations and suppressing evidence, recovered a much larger sum against the defendant than he, Hayward, knew to be due ; and further, that in his dealings with other people, Hayward had CHAP. XLIV.] COMMONWEALTH V. CLAP. 525 in many instances acted unfairly. The motion was overruled by the judge, and the defendant, being found guilty, moved for a new trial, because evidence to the foregoing effect was rejected. This motion came on now to be argued by Bidwell, Attorney-Gen- eral, and Davis, Solicitor-General for the Commonwealth, and Otis and Selfridge for the defendant. The opinion of the Court was afterwards delivered by Parsons, C. J. The defendant has been convicted by the verdict of a jury of publishing a libel. On the trial, he moved to give in evi- dence, in his defence, that the contents of the publication were true. This evidence the judge rejected, and for that reason, the defendant moves for a new trial. It is necessary to consider what publication is libellous, and the reason why a libellous publication is an offence against the Commonwealth. A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule. The cause why libellous publications are offences against the State, is their direct tendency to a breach of the public peace, by provoking the parties injured, and their friends and families, to acts of revenge, which it would not be easy to restrain, were offences of this kind not severely punished. And every day's experience will justify the law in attributing to libels that tendenc}'^ which renders the publication of them an offence against the State. The essence of the offence consists in the malice of the publication, or the intent to defame the reputation of another. In the definition of a libel, as an offence against law, it is not considered whether the publication be true or false ; because a man may maliciously publish the truth against another, with the intent to defame his character, and if the publication be true, the tendency of it to inflame the passions, and to excite revenge, is not diminished, but may sometimes be strengthened. The inference is, therefore, very clear, that the defendant cannot justify himself for publishing a libel, merely by proving the truth of the publication, and that the direction of the judge was right. If the law admitted the truth of the words in this case to be a justi- fication, the effect would be a greater injury to the party libelled. He is not a party to the prosecution, nor is he put on his defence ; and the evidence at the trial might more cruelly defame his character than the original libel. Although the truth of the words is no justification in a criminal prosecution for a libel, yet the defendant may, repel the charge, by proving that the publication was for a justifiable purpose, and not malicious, nor with the intent to defame any man. And there may be 526 CASES ON CRrMINAL LAW. [CHAP. XLTV. cases where the defendant, having proved the purpose justifiable, may give in evidence the truth of the words, when such evidence will tend to negative the malice and intent to defame. Upon this principle a man may apply by complaint to the legislature to remove an unworthy officer ; and if the complaint be true, and made with the honest intention of giving useful information, and not mali- ciously, or with intent to defame, the complaint will not be a libel. And when any man shall consent to be a candidate for a public office conferred by the election of the people, he must be considered as putting his character in issue, so far as it may respect his fitness and qualifications for office. And publications of the truth on this subject, with an honest intention of informing the people, are not a libel. For it would be unreasonable to conclude that the publication of truths which it is the interest of the people to know, should be an offence against their laws. And every man holding a public elective office may be considered as within this principle; for as a re-election is the onlj' way his con- stituents can manifest their approbation of his conduct, it is to be pre- sumed that he is consenting to a re-election, if he does not disclaim it. For every good man would wish the approbation of his constituents for meritorious conduct. For the same reason, the publication of false- hood and calumny against public officers or candidates for public offices, is an offence most dangerous to the people, and deserves pun- ishment, because the people may be deceived, and reject the best citizens to their great injury, and it may be to the loss of their liberties. But the publication of a libel maliciously and with intent to defame, whether it be true or not, is clearly an oflfence against law, on sound principles, which must be adhered to, so long as the restraint of all tendencies to the breach of the public peace, and to private animosity and revenge is salutary to the commonwealth. The defendant took nothing by his motion, and was afterwards sen- tenced to two months' imprisonment, with costs. EEGINA V. BROOKE, 7 Cox C. C. 251 [1856]. The defendant was indicted for unlawfully publishing a false, scan- dalous, and malicious libel of and concerning Edward Mostyn Baron Mostyn. The indictment alleged that it was against the peace of our Lady the Queen ; but there was no statement of its tendency to pro- voke a breach of the peace on the part of the prosecutor. CHAP. XLTV.] SHEFPILIi V. VAN DEUSBN, 527 The libel was contained in a letter addressed to the prosecutor, which letter was received by him, but there was no evidence of publication to any otLer person. The Recorder. I am of opinion that it is not necessary to allege in the indictment that the publication of the libel had a tendency to provoke a breach of the peace. It is not suggested that the indictment is bad on the face of it, but merely that it is not supported by the evi- dence adduced. But the case cited (R. v. Wegener, 2 Stark, 245) by no means bears out that proposition. There the first count alleged that the libel was sent to the prosecutor, and that it was intended to injure him in his character of a solicitor. The second count alleged a pubUcation generally, but with the same intent and tendency ; and the court held that the averments were not supported by mere evidence of a letter sent to the prosecutor and received by him. That case rather strengthens the view I am disposed to take here, and I therefore decide that there is evidence of publication to go to the jury. SHEFFILL V. VAN DEUSEN, 13 Gray, 304 [1859]. BiGELOW, J. Proof of the publication of the defamatory words alleged in the declaration was essential to the maintenance of this action. Slander consists in uttering words to the injury of a person's reputation. No such injury is done when the words are uttered only to the person concerning whom they are spoken, no one else being present or within hearing. It is damage done to character in the opin- ion of other men and not in a partj''s self-estimation which constitutes the material element in an action for verbal slander. Even in a civil action for libel, evidence that the defendant wrote and sent a sealed letter to the plaintifl' containing defamatory matter was held insuflScient proof of publication ; although it would be otherwise in an indictment for libel, because such writings tend directly to a breach of the peace. So, too, it must be shown that the words were spoken in the presence of some one who understood them. If spoken in a foreign language which no one present understood, no action will lie therefor. Edwards V. "Wooton, 12 Co. 35; Hicke's case, Pop. 139 and Hob. 215; Wheeler and Appleton's Case, Godb. 340 ; Phillips v, Jansen, 2 Esp. 624 1 Lyle v. Clason, 1 Caines, 581 ; Hammond N. P. 287. It is quite immaterial in the present case that the words were spoken in a public place. The real question for the jury was, were they so spoken as to have been heard by third persons ? Msceptions sustained. 528 CASES ON CEIMrN-AIi LAW". [CHAP. XLV. CHAPTER XLV. Perjuby. HENDEESON TUTTLE, Plaintiff in Eeeok, v. THE PEOPLE, Defendants in Ekkor< 36 N. Y. 431 [1867]. Writ of eeeor to the Supreme Court. The plaintiff in error was tried and convicted at the Jefferson Sessions on an indictment for per- jmy, in proving as subscribing witness the execution of a deed to his wife from one Stephen G-ifford. It appeared on the trial that Bennett Rice, the father-in-law of the prisoner, died intestate in 1857, and that his wife, and her sister, Mrs. Otis S. Gifford, succeeded to portions of his property, embracing lands in the town of Watertown. In January, 1859, Mrs. Tuttle and Mrs. Gifford released to Stephen Gifford, for a nominal consideration, their respective interests in the real and personal estate of their de- ceased father. On the 30th of April the grantee and his son, Otis S. Gifford, were at the oiBce of John Clarke, a lawyer at Watertown, when Mr. Clarke, who had been present at the execution of the release, suggested a re- conveyance, and drew up a deed to Mrs. Tuttle with that view. Stephen Gifford signed it, Mr. Clarke subscribed it, as attesting wit- ness, and the deed was handed to Otis S. Gifford, who was present at its execution, to be delivered to his sister-in-law. He subsequently gave it to Mrs. Tuttle, when she was at his house. The prisoner after- ward got it away from his wife, and she could not get it back. Her brother-in-law, in July, 1860, saw him and requested him to return it to her. Tuttle replied that the deed was good for nothing, blamed Otis for taking such a deed, and said that he never would have taken it if he had been there. He retained the conveyance as late as the spring of 1862, when he showed it to his brother. His wife, however, after- ward regained possession of it, and, in the fall of 1863, she delivered it to Mr. Moore, of Watertown, who was her attorney in the prosecution of three civil actions against her husband. It remained in his posses- sion, tied up in the bundle of papers relating to those suits, until shortly before the prisoner presented it for record, when it was surreptitiously taken from his office. He was unable to trace it, until on inquiry he found it with the county clerk. In the meantime it had been taken by CHAP. XLV.] TUTTLE V. THE PEOPLE. 529 the prisoner to the office of Jesse T. Reynolds, his attorney in the. defence of these suits, who was also a justice of the peace. It appeared on the trial, by the testimony of the prisoner's brother,, who was one of the witnesses in his behalf, that in the spring of 1862,, and before the difficulties, between Tuttle and his. wife resulted in a. separation, the brother took a mortgage from her, covering propertj' she inherited from her father, to secure to him the payment of $900. The witness expressed the opinion that the loan was made to her, but he admitted that, though she was present, and was the party executing the mortgage, he paid the money, in fact, to her husband, and not to her. The brother borrowed the money from the bank, on his own note, indorsed by the prisoner and his father, and left the mortgage as col- lateral security for the payment of the note. He afterward negotiated a transfer of the mortgage to a Mr. Paddock. When the abstracted deed was taken bj' the prisoner to Reynolds in the spring of 1864, he explained to him, as Reynolds admits in his testimony, that the mortgage taken from his wife by his brother had been sold to Paddock, who made it a condition that the prisoner should give a collateral mortgage ; that he gave such a mortgage ; and that the reconveyance by Gifford to her needed to be on record to perfect her title to the land she had mortgaged. The matter seems to have remained some time under advisement ; as Reynolds testifies that the deed was in his hands at least six weeks or two months before it was acknowledged. At some time during this period and shortly before the day on which the prisoner proved its exe- cution by his own oath, Rej'nolds drew a certificate at the foot of the deed, reciting proof of its execution by Mr. Clarke, the subscribing wit- ness, and went to him to take such proof. Mr. Clarke at once assented ; but recalling, on second thought, the difficulty between Tuttle and his wife, he asked where the paper came from. Reynolds replied, from Tuttle. Mr. Clarke said, under those circumstances he could not con- sent ; but if it came from Mrs. Tuttle, he would. Reynolds afterward reported the result of this interview to Tuttle. He says the prisoner then asked him if he could not acknowledge it, and he states his reply as follows : "I told him if he was present and saw it signed and acknowledged, he might acknowledge it in place of Clarke. I erased Mr. Clarke's name in the body of the certificate, and put in his, and he thereupon sat down and wrote his name under Mr. Clarke's name. I think I said to him that if he saw the deed signed, sealed and acknowledged and delivered, he could then put his name to it and ac- knowledge it in place of Mr. Clarke." On being asked why he did not take the proof himself ^ the witness answered : ' ' For the reason that Mr. Clarke had. said he thought there was something wrong about 34 530 CASES ON ceiminaij law. [chap, xlv. the defendant's having the deed ; and I thought if there was anything wrong I might be implicated." He testifies that the partial erasure of Mr. Clarke's signature as subscribing witness, which afterward appeared on the paper, was not then made, but his name stood plain and full ; and that the prisoner took the paper and did not return it. The deputy clerk swears that the prisoner delivered it to him the same day ; and Mr. Clarke testifies that he found it in that condition at the clerk's oflSce, and that the erasure was not made by him, nor was it there when Reynolds brought it to Mm to be proved. After leaving the office of his attorney, the prisoner went before a magistrate and testified to the following specific facts: "That he resided in "Watertown ; that he knew Stephen Gifljord, the individual described in and who executed the conveyance ; that he was present and saw Gifford sign, seal, and deliver it as and for his act and deed, and that Gifford then acknowledged its exepution, whereupon he (Tuttle) became the subscribing witness thereto." The fact last stated was proved to be false by the witnesses on both sides. There was evidence which would fully justify the jury in finding that the prisoner was not present when the deed was executed. The grantor, the lawyer who proposed its execution and drew the instru- ment, and the party to whom it was delivered, were all sworn. Each testified that the other two were present ; and though two of them could not swear positively that Tuttle was not there, neither of them remembered that he was ; and their testimony tended strongly to con- firm the truth of the prisoner's subsequent declaration that he was not present, and the positive oath to that effect of Otis S. Gifford, to whom, as all agree, the deed was delivered for Mrs. Tuttle, though this was before the date of the difficulties between her and her husband. Spence, a witness called by the prisoner, gave testimony tending to show that he saw the accused at Mr. Clarke's oflSce on some occasion of that nature, when old Mr. Gifford was there, and when Otis S. Gifford was not ; but his statement was of a vague and unsatisfactory character, and it did not appear that any deed was executed on that occasion. Various questions were raised as to the sufficiency of the indictment, the validity of the deed, the admissibility of evidence, the materiality of the facts proved by the prisoner's oath, the absence of one of the justices for a few moments from his seat, and the instructions of the court to the jurj', which are adverted to in the opinion so far as they are deemed material. The jury found the prisoner guilty, and the conviction was sustained, at the General Term in the fifth judicial district, the opinion of the court being delivered by Mr. Justice Mullen. PoETEE, J. The deed was not the property of the prisoner. He CHAP. XLV.] TUTTLE V. THE PEOPLE. 531 was at variance with the grantee, and had an interest in having it recorded. He desired to have a debt collected from her property, for which he had collaterally mortgaged his own. To secure this end, it was not enough that the title with which she had once parted had been afterward reinstated, unless he could establish that fact by legal evi- dence. Having clandestinely obtained the deed, he encountered, in the refusal of Mr. Clarke, an unexpected impediment in the waj' of having it proved and recorded. He could not compel the subscribing witness to make the proof, as he did not hold under the grantee. The device to which he resorted, was the only available mode of securing the record evidence he desired. The grantor resided in the same town, but he could not apply to him for an acknowledgment, without the risk of detection and exposure, before the deed surreptitiously taken from the office of Mr. Moore could be recorded and returned. It was not enough, however, that he was ready to personate the char- acter of subscribing witness, which he supposed he could do with safety, under cover of the justice's advice. The statute required an oath of the truth of the facts, essential to satisfy the officer taking the proof, and to justify the clerk in recording the instrument. To attain the desired end, he complied with this condition. The oath was admin- istered in due form and by a competent officer. The facts to which he testified were material to the inquiry, which it was the duty of the magistrate to make ; and if his testimony was wilfully and corruptly false, he was guilty of the crime of perjury. There is no force in the objection, that the deed which he proved was void for uncertainty. That was a matter over which the magis- trate had no jurisdiction, and as to which the prisoner gave no testi- mony. The object of the proceeding was to secure evidence of the execution and contents of the instrument ; and if the facts to which he swore were material to that issue, the ultimate failure of his purpose through any inherent defect in the description would not mitigate the turpitude of his crime. But the deed was valid and effectual, as a reconvej'ance of the property inherited by Mrs. Tuttle from her father. Jackson v. DeLancey, 4 Cow. 427. It is claimed that the indictment is bad, in charging that the oath was administered to the prisoner on " the Holy Scnptures" instead of the " Gospels," the term used in the statute. The Scriptures include the Gospels, and the statute is complied with when the oath is admin- istered either upon the Evangelists, the New Testament, or the Bible, which embraces the whole gospel of revealed religion. It was un- necessary in the indictment to specify the particular mode in which the prisoner was sworn ; and the averment that the oath was administered by the magistrate in due form of the law is amply sufficient, even 532 CASES ON CEIMIKAI, LAW. [CHAP. XLY. if the clause in question were to be rejected as surplusage. Dodge v. State, 4 Zabriskie, 455; People w; Phelps,. 5 Wend. 9); People v.. Warner, id. 271 ; People y. Cook, 4 Seld. 84, 85. It was also unnecessary to aver in the indictment the antecedent circumstances connected with the, title of Mrs. Tuttle to the property, embraced in the deed, though, it was proper to prove them on the trial, for the purpose of shewing the relations which subsisted between her and the prisoner, and the motives which led to the commission of the crime. It was sufficient to. allege the substantial and specifle facts^ constituting the offence, without setting forth the evidence by which the truth of the averments was to be maintained. There was no error in permitting the witnesSj Clarke, to testify to his refusal to prove the execution of the deed, when applied to for that purpose by Reynolds. The application was made at the request of the prisoner, and the resuh was reported to him by the messenger. It was pa7"t of the res gestae, and it was material as matter of inducement; Evidence was properly received, showing that the deed was surrep- titiously taken from the office of Mrs. Tuttle's attorney. It had a legitimate bearing on the question of the prisoner's, good' faith, and reflected light on the motives wbich governed his subsequent action. Hennequin v. Naylor, 24 N. Y. 139 ; Hendrickson v. People, 10 id. 31 ; People v. Larned, 7 id. 452. The motion to strike out the cross-examination of the prisoner's brother was properly denied. His testimony showed the facts in rela- tion to the two mortgages, and the inducement to the commission of the oflence. The statement of the prisoner to Rej'nolds, the justice, was admissi- ble for the same reason ; and as he sought to shield himself under the advice of this witness, it was the right of the prosecutor to ascertain the state of facts on which that advice was obtained. The judge was right in refusing to instruct the jury in accordance with the various propositions submitted by the prisoner's counsel. The only one calling for particular observation is the request to charge that " if the jury believe the defendant was present, and saw the deed executed and delivered, then, if he thereafter set his name to it as a witness, and made the proof of acknowledgment, believing he had the right to do so, no conviction can be had." Such an instruction would have been inapplicable to the facts, and could only have tended to mislead the jury as to the law. There was no evidence on the trial that the prisoner was present, and saw the deed executed and deliv- ered. No such fact was proved by the witness Spenee. On the occa- sion to which he refers, Otis S. Gifford, the party to whom the deed in question was delivered, was not with his father ; Mr. Clarke, the elder CHAP. XL V.J TUTTLE V. THE PEOPLE. 533 " Gifford, and Spence were the only persons there ; and it does not appear that any deed was executed at that time. The evidence for the prosecution might not be sufficiently conclusive to satisfy the jury that the prisoner was absent, when the deed in question was executed and delivered to Otis S. GiflEbrd, but there was no evidence to justify ithem in finding affirmatively that he was present at such execution and delivery. The judge had no right to submit to them a mere matter of speculative belief, not arising upon the proof. The proposition was also objectionable, as tendering to the jury a false issue on the princi- pal question in the case. A mistaken belief by the prisoner, that he .had a right to substitute himself for the subscribing witness at a sub- sequent period, without the knowledge of the parties, and that he could thus make himself a competent witness to prove the instrument for his own pecuniary benefit, could not justify him in falsely swearing that he became the subscribing witness, in fact, at the time the deed was executed. If he had testified to what he now claims to be the truth, on his examination by the magistrate, and had frankly stated ■that Mr. Clarke was the subscribing witness, who became such at the time of its execution, .and that, four years afterward, without the knowledge or consent of the parties, he erased the name of the sub- scribing witness, &nd. became such in his place, the proposition of the defendant's counsel would have been more pertinent to the issue. The judge, ;however, gave him, in another form, the substantial ibenefit of the instruction. He charged the jury " that if the defendant made the proof pursuant to the advice of his counsel, believing he might lawfully do so, the element of a corrupt intent would be want- ing." He added a very appropriate caution to the jury, against over- looking the essential ingredient of good faith, in determining whether he really entertained that belief. "If you see," said the learned judge, " that there was a motive to induce the defendant to want the deed on .record, by reason of Mrs. Tuttle's mortgage to T. F. Tuttle, and of the defendant's desire to have the mortgage foreclosed to relieve the collateral ; if the advice was given by Reynolds to fall back upon ; if you believe it was arranged between the defendant and Reynolds that Reynolds should so advise for such purpose, then the advice would be of no avail as a defence." The soundness .of this as a legal proposition is too clear for argument. So far as it was commentary upon the ten- dency of the evidence, on a question of fact, which the judge fairly submitted to the jury, it was not the subject of legal exception. Peo- ple v. Vane, 12 Wend. 78 ; People v. White, 14 id. Ill ; Commis- sioners of Pilots V. Clark, 33 N. Y. 267. It is quite apparent that the hypothesis of bad faith, suggested by the judge, is more in harmony with the proof than that of good faith, suggested by the counsel for 534 CASES ON CKIMmAIi LAW. [CHAP. XLV. the defence. The possession of the abstracted deed by the prisoner; the delivery of it to his own attorney, with the avowed purpose of putting it on record, to promote his private advantage ; the unex- plained delay for several weeks before the attempt was finally made ; the application, through his attorney, to the subscribing witness, whom both of them recognized as the proper party to make the proof; the omission, when that attempt failed, to ask an acknowledgment by the grantor, who resided in the same town ; the suggestion, originating with the defendant, that he should himself become a subscribing wit- ness to the deed, and prove its execution ex parte in his own behalf; the guarded and hypothetical form of the opinion expressed by his attorney when that suggestion was made; the apprehension of the latter, after his interview with Mr. Clarke, that he might be impUcated in the wrong connected with the possession of the instrument, and the consequent substitution of another officer to take the proof; the par- tial erasure, without his suggestion or sanction, and after the deed was taken from his office, of the name of the subscribing witness, — all these were circumstances worthy of grave consideration by the jury, in determining the question whether the prisoner, in good faith, entertained the belief which he professed, as an excuse for the falsity of his oath ; and we see no reason to doubt that their conclusion was rational and just. It is due to the attorney to say, that it appears by the proof that he was inexperienced as a magistrate ; that he had been withdrawn for some time from professional pursuits bj' military services during the rebellion ; that he gave his assent hastily and without reflection to the suggestion of the prisoner ; and that before it was finally acted on he was led to withdraw from further participation in the matter, by the circumstances of suspicion which surrounded it. Davies, C. J., Hunt, Weight, Scrugham, and Parkee, J.J., con- curred in the foregoing opinion. Geovbe, J., concurred in the result. BocKES, J., was for reversal. Judgment affirmed. STATE OF IOWA v. RAYMOND, 20 Iowa, 582 [1866]. Appeal from Jackson District Court. The defendant was indicted, tried and convicted and sentenced to two years' imprisonment in the penitentiary, for the crime of perjury. The offence is charged to have been committed by the defendant, in testifying as a witness in behalf of the State, on the trial of Peter CHAP. XLV.] IOWA V. BATMOND. 535 Martin,- before a justice of the peace, upon an information for larceny of corn from the field of one Jason Pangborn. The defendant, having taken exceptions to certain instructions and rulings of the court, prosecutes this appeal. William E. Leffingwell, for the appellant. F. E. Bissell, Attorney-General, for the State Cole, J. The court gave to the jury very full and elaborate instruc- tions. As a whole, they are quite as favorable to the prisoner as he had any right to ask ; and in some particulars the instructions were more favorable than the law, as found in the books, would require. Peter Martin was on trial for the larceny of corn, at the time the prisoner is alleged to have committed the perjury charged. On the trial of the prisoner Peter Martin was called as a witness for the State, and contradicted the alleged false matter sworn to bj' the prisoner upon which the perjurj' is assigned. The only corrobora- tive evidence to that of Martin was the testimony of two witnesses, that they had together examined that portion of the cornfield where the prisoner had sworn he saw or heard Martin gather corn ; that their examination was made the second day after the alleged larceny, and they saw no tracks, or corn missing in that part of the field, although the ground was soft and their tracks very apparent. And the furtlier testimony of Martin's wife, that she and her husband went to bed before the time at which the prisoner swore he saw Martin get the corn, and that although she slept soundly, she knows her husband did not go out that night, because no one could either go out or come in without her knowing it. The sufficiency of this corroborating evidence as well as the instructions in relation to it constitute one of the main grounds upon which defendant's counsel relies for a reversal. The court, inter alia, instructed the jury, that " to support an indict- ment for perjury, the State must prove, 1st, the authority to admin- ister the oath ; 2d, the occasion of administering it ; 3d, the taking of the oath by the defendant ; 4th, the substance of the oath ; 5th, the materiality of the matter sworn to ; 6th, the introductory averments of the indictment ; 7th, the falsity of the matter sworn to ; 8th, the corrupt intention of the defendant ; and unless each and every one of these necessary elements of the crime of perjury is established to your satisfaction, and beyond any reasonable doubt, the defendant cannot be convicted." It might, perhaps, be questionable whether the " reasonable doubt " should not arise upon the whole case instead of any one element or more of the crime ; but this of course was not error to the defendant's prejudice, if it was error at all, which is a question we do not decide. The court also instructed the jury that " the matter testified to 536 CASES ON CEanvHKAL XAw. [chap. xlv. must be established by fevidence greater than that of one witness. Two witnesses, or one witness and strong corroborative proof, are required to establish the falsity of the matter alleged to have been sworn to by the defendant on the trial before the justice of the peace ; mid the corroborative evidence must be of such a character as to show in some degree the falsity of the matter sworn to by defendant, or to con- vince the jury that such matter was false. But it is only in proof of the falsity of what was testified to that more evidence than of a single unsupported witness is required." The italicized portion of this instruction is that .upon which the defendant bases his objection. The old rule was, that two witnesses were required to prove the falsity of the matter upon which the perjury was assigned. This ,Tule, however, 'has long since been repudiated, and the testimony of one witness and strong corroborative circum- stances have been held suflflcient. But evidence confirmatory of that one witness, in some slight particulars only, is not sufficient to warrant a conviction. Rex v. Yates, 1 Car. & Mars. 132. It must be at least strongly corroborative of the testimony of the accusing "witness. Woodbeck v. Keller, 6 Cow. 118. And the cor- roboration must be by independent circumstances, tending to show the same results and not merely that the account is probable. 1 GreenL on Ev. §§ 2,57 to 259, and authorities cited in notes ; 2 Whart. Am. Or. Law, §§ 2275 to 2280, and authorities cited in notes; 2 Euss. on Cr. 544, 545. There is possibly a doubt as to the meaning of the language, objected to, in the instruction. If the court intended by it to instruct the jury that any corroborative evidence which should show in some degree the falsity of the matter sworn to, would be sufficient to authorize them to convict, the instruction was clearly erroneous. But if by it was meant (which is more probable) that the corroborative evidence must ■show in some degree the falsity of the matter sworn to, as distinguislied from evidence corroborating the witness as to other matters stated by ihim, it was not necessarily erroneous. That this latter construction is not only the more reasonable, from the language itself, but the one evidently intended by the court and understood by the jury, is apparent from a following instruction, to wit: " The jury will consider the character of the alleged corroborat- ing facts and circumstances in the case, and unless they are such as could not exist consistently with the innocence of the defendant, the defendant must be acquitted." Upon the instructions as a whole, given by the court, there was not error to the prejudice of the defendant. Affirmed. CHAP. XLV.] COMMONWEALTH V. GRANT. 537 COMMONWEALTH v. THEODORE L. GRANT, 116 Mass. 17 [1874]. Indictment for perjury. The indictment set forth at length that at a session of the Police Court of Charlestown, on March 6, 1873, one Lydia L. Grant was in due form of law tried under the name of Lydia L. Linnell on a complaint charging her with larceny from one Theodore L. Grant, within the jurisdiction of said Police Court \ that at the trial aforesaid, said Theodore L. Grant did appear as a witness for the Commonwealth, and then and there was sworn to speak the truth, the whole truth, and nothing but the truth, as such witness ; that at and upon said trial of the said Lydia, upon the complaint afore- said, it then and there became and was a material question and subject of inquiry whether the said Theodore L. Grant was not then, or had not been before then, married to the said Lydia; and whether the said Theodore L. Grant had not before then gone through the marriage ceremony with the said Lydia ; and whether the said Theodore L. Grant had not represented himself as the husband of the said Lydia ; and whether the said Theodore L. Grant and the said Lydia had not before then lived and cohabited together as man and wife ; and whether the said Theodore L. Grant and the said Lydia had not before then gone to a minister together and been married to each other by said minister ; and whether the said Theodore L. Grant had not before then entered into an agreement of separation with the said Lydia ; that the said Theodore L. Grant being so sworn as afore- said, in the premises, then and there " as such witness as aforesaid, upon the trial as aforesaid, and whilst it was such material question and subject of inquirj' as aforesaid, unlawfully, falsely, knowingl}', wilfully, and corruptly did depose, swear and give evidence among other things in substance and to the effect following, that is to say, that the said Theodore L. Grant was not then, nor had ever before then, been married to the said Lydia ; that the said Theodore L. Grant had not before then gone through the marriage ceremony with thfe said Lydia ; that the said Theodore L. Grant had never represented himself as the husband of the said Lydia ; that the said Theodore L. Grant and the said Lydia had never before then lived and cohabited together as man and wife ; that the said Theodore L. Grant and the said Lydia had not before then gone together to a minister and been married to each other by said minister ; and that the said Theodore L. Grant had not before then entered into an agreement of separation swith the said Lydia. Whereas in truth and in fact the said Theodore 538 CASES ON CEnnNAi law. [chap. xlv. L. Grant, at the time he so deposed and swore as aforesaid, well knew that he was then and for some time before then had been married to the said Lydia ; whereas in truth and in fact the said Theodore L, Grant had before then gone through the marriage ceremony with the said Lydia ; and whereas in truth and in fact the said Theodore L. Grant had represented himself as the husband of the said Lydia ; and whereas in truth and in fact the said Theodore L. Grant and the said Lydia had before then lived and cohabited together as man and wife, and whereas in truth and in fact the said Theodore L. Grant and the said Lydia had before then gone together to a minister and had been married by said minister to each other ; and whereas in truth and in fact the said Theodore L. Grant had before then entered into an agree- ment of separation with the said Lj-dia, as the said Theodore L. Grant then and there well knew, but the said allegations were so sworn to and given in evidence as aforesaid by the said Theodore L. Grant for the purpose of unlawfully, wickedly, and maliciously causing the said Lydia falsely to be convicted on the said complaint charging her with larceny from the said Theodore L. Grant, and for no other purpose whatever ; " that Grant accordingly committed perjury. At the trial in the Superior Court, before Pitman, J., it appeared that on February 28, 1873, the defendant procured a search warrant to search for some articles of personal property alleged to be in the house occupied by Lydia L. Linnell, in Charlestown ;"and that the officers made the search and found some articles of personal propertj- which the defendant claimed as his property, and that thereupon one of the officers made a complaint in the Police Court of said Charlestown charging Lj'dia with the larceny of said property ; that the case came on for trial before the justice of said court, and that the said Lydia L. Linnell set up in defence that she waS the lawful wife of the defendant, and therefore could not be convicted of the larceny of his property ; that the defendant was called and sworn as a witness for the govern- ment, at the trial ; and was asked the questions set forth in the indict- ment, and made the answers set forth in said indictment. The only direct evidence of a marriage between the defendant and said Lydia was a marriage certificate signed by one Henry Duncan, and the testimony of Lydia that she and said defendant went to Provi- dence on Jaly 26, 1871, and were there married at the house of the Rev. Henrj' Duncan, who gave her said certificate, and that the de- fendant caused their marriage to be inserted in a Providence daily paper the afternoon of the same day, which paper she produced ; that they returned to Boston, where they lived together a few days, and then removed to the house of the defendant, where they resided together until September 12, 1872, when they separated and did not CHAP. XLV.] COMMONWEALTH V. GBANT. 539 live together thereafter. There was other evidence tending to show that the parties had been together, and that the defendant had intro- duced the said Lj-dia as his wife before the separation. Lydia swore that she was not married at any other time or place than at Providence as aforesaid, and that there never had been any other ceremony of mar- riage between them. The defendant testified that he never went to Providence with Lydia as alleged, and that no ceremony of marriage was ever performed between him and Lydia; that he had lived with Lydia, but not as husband and wife ; and it was admitted by the district attorney that tlie certificate produced was not a genuine certificate, but was made by a man named Henry Duncan who resided in Chelsea or Charlestown. It appeared that the defendant could neither read nor write. It also appeared by his own testimony that he had a wife living in Boston to whom he was married more than twenty years ago. The defendant asked the court to instruct the jury as follows : — 1. Unless the jury find that the parties were actually married or went through the form of marriage before some person supposed to be authorized to perform the marriage ceremony, this indictment cannot be maintained. 2. If the defendant had a lawful wife living other than Lydia Linnell, this indictment cannot be maintained. 3. The other allegations of perjury contained in the indictment are not material to the issue before the Police Court, if in point of fact the defendant and Lydia Linnell were not married or had not gone through the form of marriage. The Court declined to give any of the instructions asked for, but instructed the jury as follows : " That it was admitted that in the trial upon which the alleged perjury was charged to have been committed, it, was a material question whether the defendant was married to Lydia Linnell ; that if the defendant then swore wilfully, falsely, and cor- ruptly, as set forth in the indictment in relation to any matters therein assigned which were material to this issue, — that is, which tended to prove the marriage, though such matters were only circumstantial, — then he was guilty ; that it was not necessary for the jury to find that the defendant was in fact married to, or had gone through with the form of marriage with said Linnell, if he had sworn falsely as aforesaid in relation to matters material, in the consideration of such question of marriage at said trial." The jury returned a verdict of guilty, and the defendant alleged exceptions to the rulings and refusals of the Court. G. A. Morse, for the defendant. C. S. Train, Attornej'-General for the Commonwealth. 540 CASES ON CEIMIISrAIi LAW. [CHAP. XLV. Devens, J. The request made by the defendant was properly declined by the presiding judge. A party not only commits perjury bj- swearing falsely and con'uptly as to the fact which is immediately in issue, but also by so doing as to material circumstances which have a legitimate tendency to prove or disprove such fact. He cannot in the latter case exonerate himself from the offence, because, while the cir- cumstances to which he thus swore did not exist, the fact sought to be established by them did exist. Even if the defendant was not married to Linnell, if he corruptly and falsely swore that he had not so repre- sented, that he had not lived with her as his wife, and had not made an agreement of separation from her, this testimony was material in the decision of the issue as presented to the Police Court, ;and might there- fore be properly included in the assignments of perjury contained in the indictment. The offence of the defendant consisted in making false statements intended to corrupt the administration of justice, by induc- ing the magistrate to render a decision based thereupon, and it is riot the less an offence because the decision was in fact correct. Mceeptions overruled. JAMES D. AVERY v. JESSE M. WARD, 150 Mass. 160 [1889]. ToET for slander, in accusing the plaintiff of subornation of perjury. The declaration in various counts alleged, in substance, that Peter Borlin was insured against loss by fire, under a policy issued by an insurance company doing business in this Commonwealth, upon a barn as well as upon a portion of its contents owned by him ; that the barn and such contents, as well as three valuable cows belonging to the plaintiff and in the barn at the time, were burned ; that after the loss Borlin prepared and rendered to the company a statement in writing, which he signed and made oath to setting forth the value of the prop- erty insured and his interest therein, with other facts required by the company in the policy, in order that he might recover from the com- pany the damage he had sustained ; and that the defendant pubUcly, falsely, and maliciously accused the plaintiff of the crime of attempting or endeavoring to incite and induce Borlin to commit the crime of per- jury, by words spoken of the plaintiff substantially as follows: He [meaning the plaintiff] tried to make or get Peter Borlin to swear that the cows owned by the plaintiff which Borlin was keeping for him were his [Borlin's] cows, so that the plaintiff might get the pay for his cows from the insurance company through Borlin and by means of his [Borlin's] perjury. CHAP. XLV.] AVEEY Vi WAED. 541 At the trial in the Superior Court, beforB Dewey,. J., it also appeared in evidence that the insurance policy referred to in the declaration was in the form known as the Massachusetts Standard Policy, prescribed by the Pub. Sts. c. 119, §, 139 ; and that the defendant spoke the words, of and concerning the plaintiff, substantially as alleged. The defendant requested the judge to rule, that, upon all the evidence,, the. action could not be maintained, inasmuch as the oath to be made,, in order to make a " statement on oath " as required on proof of losa by the insurance policy, was not an oath which if falsely taken could, subject the person so taking it to punishment for the crime of perjury. The judge declined so to rule, and ruled that, if there was a loss sus- tained by fire under the policy by Borlin, and the provisions of the, policy relating to the. manner of proving the loss by a statement on oath, had not been waived by and were required by the insurance company,, such an oath as would be for the proof of loss under the policy was an oath required by law, within the meaning of section 2 of chapter 205 of the Public Statutes, and if falsely taken, would subject the person so taking such false oath to punishment for the crime of perjury. The jury found for the plaintiff; and the defendant alleged exceptions. 0. G. Conant and S. D. Conant, for the defendant. S. T. Field, for the plaintiff. Knowlton, J. The principal question in this case is whether the oath taken by a policj^-holder to the truth of a statement in writing, setting forth the particulars of a loss under his policy of insurance against fire, is an oath " required by law," within the meaning of the Pub. Sts. c. 205, § 2. This section is as follows: "Whoever, being required by law to take an oath or affirmation, wilfullj' swears or aflBrms falsely in regard to any matter or thing respecting which such oath or affirmation is required, shall be deemed guilty of perjury." The St. of 1887, c. 214, § 60, which follows closely the Pub. Sts. c. 119, §. 139, prescribes the form of policy to be used by all firerin- surance companies doing business in this Commonwealth, and requires a provision in the policy that in case of loss " a statement in writing, sio'ned and sworn to by the insured, shall be forthwith rendered to the company, setting forth the value of the property insured," etc. In the absence of any modification of this provision by the parties or waiver of it by the company, a policy-holder whose property has been burned is "required by law" to make such a statement under oath before he can maintain a suit to recover for his loss. The policy referred to in the present case contained this provision, and, under the instructions of the iudge, the jury must have found that there was no waiver of it. What interpretation should be given to the words Krequired by law," 542 CASES ON CEIMINAl LAW. [CHAP. XLV. in the statute first quoted, is a question by no means free from diflS- culty. It has been said that the provision " might seem from its very general language to embrace all cases where an oath had been lawfully administered in the execution of official duty." Jones v. Daniels, 15 Gray, 438. But in the same case it is suggested that the language of the original statute from which it is derived (St. 1829, c. 56) seems to have had reference to oaths required by special provisions of statute. Both of these remarks were entirely outside of the question involved in the case then decided, and we are not aware that the statute has ever been before the court for construction. The fact that in so general a revision of our laws as that of 1835, the language was consider- ably changed, and the further fact that the law has been twice re- enacted in substantially the form in which it was put in that revision, make the original statute of less importance than might otherwise be attached to it. Eev. Sts. c. 128, § 2 ; Gen. Sts. c. 163, § 2 ; Pub. Sts. 205, § 2. The oath referred to in the plaintiff's declaration was essential to the preservation of the legal rights of the assured. Although not taken "in any proceedings in a course of justice," so that if false it would have subjected the affiant to punishment for perjury at the common law, or under section 1 of chapter 205 of the Public Statutes, it was within the reason of the rule of the common law, for it was taken in a preliminary proceeding which lay at the foundation of proceedings in court, and which would be subject to review in those proceedings. It was required under a contract which embodied the requirement in conformity to an express provision of the law. We think the spirit and purpose of the statute will best be conserved by so construing it that the requirement in the present case shall be deemed to have been a requirement "by law," such that it would have subjected the assured to punishment for perjury if he had wilfully sworn falsely. The words alleged to have been spoken of the plaintiff were sufficient to impute to him the crime of attempting to induce and incite Borlin to commit the crime of perjury. Such a crime could be committed by the use of words alone. Meceptions overruled. CHAP. XI,\a.] KNOX V. MAYOE, &C. OF NEW YOEK. 643 CHAPTER XLVI. Nuisance. KNOX V. THE MAYOE, &c. OF THE CITY of NEW YOTIK, 55 Baeboub, 404 [1868]. This was a suit in equity, brought by the plaintiff for the abatement and removal of an alleged public nuisance, claimed by the plaintiff to be specially injurious to himself. The alleged nuisance was a bridge across Broadway, at the junction with Fulton Street, in the city of New York. The plaintiff was lessee for a term of years of certain premises situated on the corner of Broadway and Fulton Streets, upon which he had erected a building at an expense of $75,000, which build- ing was occupied in part by the plaintiff as a store, and in part it had been leased out to, and was occupied by, his under tenants. SamiUon W. Robinson, for the plaintiff. Andrew J, Hogers, for the defendants. Daniels, J. The structure which the plaintiff in this action alleges has been erected and is now maintained by the defendant in violation of his rights as tenant and occupant of the premises mentioned, is a bridge elevated at the height of eighteen feet over the junction of Fulton Street and Broadway. This bridge is reached by stairs pro- vided for that purpose at each of its corners, resting upon the sidewalks on Broadway. They extended to such a distance along the sidewalks, from the sides of the top of the bridge, as to aflbrd proper means of ascending to, and descending from the bridge itself. In front of the plaintiff's store the sidewalk is thirteen feet in width, and the stairs to the bridge have been so constructed as to occupy just one half of this space. The northeasterly stairs ascend from the walk to the bridge across a considerable portion of the front of the store occupied by the plaintiff, obstructing the free passage of the light into the store, and rendering the rear portion of it so dark as to require the gas to be lighted, for a part of the day at least, in order to enable the plaintiff to carry on and transact his business. The evidence also quite satisfac- torily showed that the upper portion of the building, which the plaintiff had previously leased for offices and other similar purposes, had been so far injured by this bridge being in front of them, and the obstruction 544 CASES. ON CKEMmfAIx LAW. [CHAP. XLVI. to the approaches to it caused by pedestrians passing along the walks, that they had been deserted by the tenants, and he was unable to procure others to occupy them. And in addition to that, the persons who passed along the streets at this point, on account of the diminished capacity of the sidewalk by the erection of the stairs to the bridge, blockaded the front of his store, renderihg it inconvenient for goods to be taken to and removed from it, and for his customers to pass in and out, and frequently driving the persons collected upon the walk, ' through the inside of his store, for the purpose of passing and repassing between Broadwa}' and Fulton Street. No reason exists, under the evidence given, for doubting the truth of these statements. And assuming them to be true, as the Court is bound to do, even though they may be somewhat colored, they exhibit such a clear case of special injury to the pla/intiflf as will enable Mm to maintain the present action. If the structure complained of can justly be declared to be a public nuisance, it is necessarj- that it shall be shown to have been erected and maintained in violation of law, and that it shall be found to render the enjoyment of the rights obstructed by it inconvenient, unwholesome, or uncomfortable. On account of the large amount of travel upon the streets and on the walks at this point, the former frequently became so completelj' obstructed and blockaded by vehicles as to render it impossible, for the time being, for pedestrians to effect a crossing ; and when that was not the case, cross- ing these streets by persons on foot was frequently diflScult as well as dangerous. It was to relieve pedestrians from these inteiTuptions and dangers that the defendant erected and has since maintained this bridge. When the streets have been very wet and muddy, and in the winter season when the melting snow or ice has rendered a passage over them troublesome and difficult, then the evidence shows that this bridge has b«en used, but even then not to such an extent as to justifj' the conclusion that it has afforded any great or substantial relief to the walks themselves, or the persons using them. Even at those periods the bridge does not appear to be used to such an extent as to accommodate a number of people equal to that which the stairs obstruct, bj- contracting and reducing the capacity of the walk. During the ordinary weather which prevails, a much smaller proportion of people make use of it, and for much of the time its chief purpose seems to be that of affording convenient accommodation for persons desirous of observing the movements upon the streets. The obstacles interposed by the stairs themselves to the free and unobstructed use of the sidewalks at all times are much greater than the convenience and facilities afforded to persons using them by the bridge. The latter, therefore, constitutes a positive obstruction to CHAP. XLVI.] KNOX V. MAYOB, &C. OP NEW YOKK. 545 those who are entitled to the enjoyment and use of the sidewalks at this part of the city, instead of adding to or promoting their con- venience. And such appears to be the manner in which it is commonly regarded, for pedestrians seem to prefer encountering the delay, diflSculty, and danger of crossing upon the surface of the streets them- selves, to the performance of the labor required to make a combined ascent and descent of thirty-six feet, for the purpose of securing freedom from these obstacles by crossing over the bridge. Of the two, the journey over the bridge, in the judgment of those using the walks, appears to be regarded as the most difficult to be made. For these reasons the bridge is not such a structure as can, in any proper or legal sense, be pronounced an improvement promoting the convenient use and enjoj'ment of the streets. It not only impairs the value and usefulness of the adjacent property, but beyond that, it renders it exceedingly inconvenient to use it for some of the ordinary purposes of business, and deprives pedestrians of thirteen feet of side- walk that previous to its erection was capable of being freely used by them, without affording or providing them any corresponding or adequate advantage for the obstacles placed in their way. It is attended with those consequences, therefore, which in a legal sense constitute a public as well as a private nuisance. But whether that can be held to be its legal character, will depend entirely upon whether it was properly and lawfully placed there. The land upon which Broadway, at this point, has been constructed, was shown upon the trial to have been dedicated, by those under whom the plaintiff has derived his estate, for the uses and purposes of a public street. In this respect it differs from many of the streets of the city where the fee of the land was in the public at large, and by legisla- tion was afterwards transferred to the citj', and also from those streets to which the city acquired title in fee bj' proceedings taken for opening them. In these cases the streets may be devoted to many public pur- poses that would be entirely unwarrantable and unjustifiable, where a simple dedication of the land for the purposes of a street was all that had taken place. Hence, in the former, the legislature of the State may authorize the construction of railways over the streets, without the consent of, and without compensation to, the adjacent owners of the property (The People v. Kerr, 27 N. Y. Rep. 188) ; while in the latter case, neither the legislature nor the common council of the city can authorize or sanction such an appropriation of the street, without obtaining the consent of, or making compensation to, such owners. Williams v. N. Y. Central Railroad Co., 16 N. Y. Rep. 97. In this case it was held that the legislature had no such authority over the public streets of a city as would permit it to authorize such a use of 35 546 CASES ; ON CRUCENAL LA-W. [CHAP. XLVI. them. This authority also holds that the;,publio acquire only, such an: interest in land appropriated hy dedication to the uses and purposes of a highway as will entitle them to use it for that objecti And subject to that right, which is denominated an easement, the person or persons making the: dedication, and those acquiring -the property under them, still retain the fee of the land. For this reason, persons improperly appropriating or using the street for purposes not legitimately appertaining to it as a street, may be successfully prosecuted by the owner of the fee subject to the ease- ment, and made to respond for the act in damages^ or to surrender the property itself, as the . particular case may require. The right which the public acquire by means of the dedication and the acceptance of it, is that of using the land simply as a street and for nothing whatever beyond that. Incidental to thisj and as a necessary part of it, the public possess the right of rendering the street as convenient, useful, commodious, safe, and wholesome, as it can be by means of such improvement and regulations as experience has discovered to be adapted to those ends. To accomplish those results it ;may be graded, curbed, paved, and sewered, and provided with the requisite gas. and water pipes to light and clean it ; . and the manner in. which excavations may be made or maintained in or under it, may>be suitably and safely con- trolled by the public authorities, having charge of the easement for the benefit of the public. But all this is done and permitted for one end and purpose, and that is, to render the streets as convenient, safe, useful, and wholesome as they niay be, for those having occasion to use them for the purpose of passing' over them. Many other improvements in this respect may, and undoubtedlj' will, be discovered, and made to increase the safety and facilities of the public in the use of streets ; but it ma}' very well be questioned whether experiments like the one in controversy will be found to have sufficient tendency in that direction to justify a repetition of it;. Beyond thisi right of improving and regulating the manner; in which the streets may be used, where the public have acquired only the easement secured by the dedication, the public have no right to make use of the land over which the streets may be lawfully maintained and presert'ed. It was claimed, upon the tiial, that the provisions in the early charters conferred upon this city would authorize a more un- restricted use than that of the land devoted to the purposes of a streets But even if these statutes were themselves capable of being, so con- strued, which certainly would admit of very great doubt indeed, such a construction could not be sanctioned at the time when this bridge was erected, for the constitution of this State had long before that intervened with its potent .injunctions that no person should be deprived of his CHAP. XLVI.]' KNOX V-. MAYOR, &0. OP NEW YOBK. 547 property without due process of law, and that private property should only be taken for public purposes by properly and justly compensating the owner for it. Constitution of 1822, art. 7, §§ 1, 7 ; 1 E. S. 44, 45, 5th ed. And these provisions have been prominently placed in the constitutions formed in this State since that time. The interest which the owners of the fee had in the land dedicated to the use of the street was property, in the legal as well as popular signification of that term, recognized and protected as such, the same as the other property of the owner, by laws of this State, and therefore within these constitutional provisions. And even if the statutes previously existing within the city were of themselves so comprehensive as to allow the owner to be deprived of it without compensation and without due process of law, as long as the right secured by them was not resorted to, or in any manner rendered available, until after these constitutional limitations had prohibited that from being done, they will not and cannot in any manner impair the rights of the owner in this respect. Those rights are now, and were when this bridge was erected, within the restrictions imposed upon the public authorities by these salutary provisions of the constitution. And it was not, therefore, within the power of the common council or of the legislature, or both combined, to deprive the defendant of them, unless the measures for doing so were taken in conformity to its requirements. These measures onlj' could be effectual in this respect which would provide compensation for the property taken, or would result in the assent of the person entitled to its enjoyment. Without one or the other, the act of appropriating the property in question would necessarily be illegal and unjustifiable, if it has imposed an additional easement or burden upon the property beyond that in- cluded in the dedication. If that be its character, the provisions of the Act of 1866, authorizing a certain amount to be raised by taxation for the purpose of paying for the erection of the bridge, would not deprive the plaintiff of any of his rights for redress on account of it. Laws of 1866, p. 2060. An act of the legislature is not itself due ^process of law, within the contemplation and meaning of the constitution. And this Act provided no compensation for the owner whose propertj' has been rendered subservient to the maintenance of this structure. An attempt was made, on the part of the defendant, to show that the present plaintiff consented to the erection of this bridge, but no evidence was given which warranted that conclusion as a matter of fact. The right of the owner of this corner to the fee of the land in the street, subject to the easement of the public, has been acquired by the plaintiff by virtue of the lease executed and delivered to him. That bounds the land leased on the street, which, by a well-settled 548 CASES ON CKIMLNAL LAW. [CHAP. XLVI. rule of construction, extended the line to the centre of the street. Bissell V. N. Y. Central Railroad Co., 23 N. Y. Eep. 61 ; Perrin v. Same, 36 id. 120. The plaintiff, therefore, is legally entitled to complain of this, if it has imposed a new burden or servitude upon his land in the street, beyond' that devoted to the use of the public, which in substance was one of passage merely. This bridge is a structure permanently erected over the streets, appropriating for its support, and the avenues to it, thirteen feet, in the aggregate, of that part of the street which had been devoted to the use and convenience of pedestrians. It was not done for the purpose of improving the easement upon and over the land itself, which the public were and are entitled to enjoy, and it has no tendency whatever to produce any such improvement ; but for the purpose of creating a new and distinct servitude above the streets and above the land upon which the public easement was created. The fact that a portion of the street has been exclusivelj' devoted to the support of this structure is suflSlcient to show that it can be no development or improvement of the pre-existing easement, for that actually deprives the public of the use of so much of the easement itself as the bridge requires for its own support. If the appropriation of a portion of the street or sidewalks can be justified for this purpose, it may also be for the support of any other device that can be made useful in transferring persons from one side to the other side of a blockaded or crowded street. If the object in view is sufficient to justify the exercise of the power, it may be used in anj' manner that either ingenuity or fancy may suggest. And if a bridge is found to fail in fulfilling the expectation in this respect of those who designed and erected it, hoist- ing apparatus, with cranes and engines for its use, may be substituted in its place. And this may be done not only where the streets are liable to become blockaded and dangerous, but whenever that condition may be reasonably apprehended. If this may be done, nothing would appear to be in the way of a raised walk, not only across, but along the streets themselves. The power over the streets that will authorize and sanction one, will permit the existence of the others. If it could be sustained, it is capable of being used in such a manner as not only to seriously impede, and impair the public utility of streets as avenues for travel, but beyond that, it would be in danger of rendering them not only annoying, but useless to those who should endeavor to carry on business upon them. Within the well-settled principles of law applicable to the government and improvement of public streets, no such erection as the one com- plained of can constitute a proper exercise of the power over them that has been confided to the public authorities. It is so entirely CHAP. XLVI.] STATE V. KASTEE. 549 unadapted to the improvement or enjoyment of the street as to be incapable of promoting the utility of the easement which the public have in it, in any respect whatever. On the contrary, it is a permanent obstruction, in the way of existence and enjoyment of the easement, and to that extent deprives the public of the use of that which has been dedicated and designed for their convenience and accommodation. As such it is a public nuisance, which may be and should be abated and removed. People v. Cunningham, 1 Denio, 524 ; People v. Van- derbilt, 28 N. Y. Rep. 396. And as the structure' has necessarily appropriated for its support the land which the plaintiff is entitled to have maintained open and unobstructed, subject onlj'^ to the right of the public to pass and repass over it, and temporarily to occupy it for the improvement and more perfect enjoyment of that right, and special injury has been occasioned to him in consequence of it, he has made out and sustained his right to insist upon such abatement and removal. He cannot, however, recover in this action the damages he has sustained by reason of such injury, because he did not present his claim for them to the comptrol- ler for adjustment, as he was required to do by the statute, before he commenced the action. Laws of 1860, p. 645, § 2. If the action had been for their recovery alone, it would have been plainly within the language of this statute. The fact that further relief of an equitable nature has been also demanded, cannot have the effect of excluding from the operation of the statute that which would otherwise have been so plainly within it. The plaintiff must have judgment directing the removal or abate- ment of this bridge as a nuisance, within ninety days after service, upon the proper oflacer of the defendant, of a certified copy of the judgment, without prejudice to the plaintiff's right to maintain an action at law for the recovery of the damages sustained by him. As both parties have succeeded in part, neither is entitled to recover costs as against the other. THE STATE v. KASTER, 35 Iowa, 221 [1872]. Appeal from Henry District Court. Indictment for erecting and maintaining a nuisance. Verdict of guilty. Judgment that the nuisance be abated, and that defendant pay the costs thereof and of the prosecution. Defendant appeals. 550 CASES ON CMMINAL LAW. [CHAP. XLVI. The further facts are stated in the opinion of the Court. Amblers and £abb, for the appellant. M. E. Cutis, Attorney-General, for the State. Miller, J. The indictment in this case charges that the defendant, J. W. Kaster, on , etc., " at the County of Henry and State of Iowa, in Center township in said county, near unto divers public streets, being the common highway, and also near unto the dwelling-houses of divers citizens of the State, there situate and being, unlawfully and injuriously did make, erect, set up, continue, and use, and did cause and procure to be made, erected, set up, continued, and used, a certain enclosure, pen, or lot of ground, in which cattle and hogs were confined, fed, matured, and retained, and the excrements, decayed food, slop, and other filth retained upon and within said enclosure," etc., " which employment or use of said enclosure," etc., " for said purpose, and permitting of said excrement, decayed food, slop, and filth to re- main upon and within said enclosure," etc., "occasioned noxious exhalations, offensive smells, unwholesome smells, so that the air was then and there greatly corrupted and infected thereby, and other annoyances becoming and being dangerous to the health, comfort, and being a common and public nuisance to the good people of the State of Iowa there passing, repassing, being, or residing," etc. On the trial the Court, against defendant's objection, admitted wit- nesses to testify that the noise made by hogs in the enclosure or pens of defendant was very great and annoj'ing at night to persons residing in the neighborhood ; and this ruling is assigned as error. Our statute (Rev., § 4409) provides that " The erecting, continuing, or using any building or other place for the exercise of any trade, employment, or manufacture which, by occasioning noxious exhalations, offensive smells, or other annoyances, becomes injurious and danger- ous to the health, comfort, or property of individuals or the public; the causing or suffering offal or noisome substance to be collected or remain in any place to the prejudice of others — are nuisances." Under this statute and the indictment in this case, the annoyances resulting from the erection and maintenance of the nuisance charged constituted the gist of the offence ; and while it was not competent, under the general charge of " other annoyances " in the indictment, to prove that the people of the neighborhood were annoyed at night by the noises made by hogs in defendant's pens, yet we are of opinion that the testimony objected to was properly received as part of the facts connected with the nuisance charged, and also as corroborative of the fact that hogs were kept and retained in the pens at night. If the evidence was competent for any purpose, its admission was not erroneous. CHAP. XliVI.] STATE V. KASTEB. 551 The defendant called as a witness one Hugh McClure, and pro- posed to prove by him that the enclosure cterged as a nuisance "was a great and essential accommodatioii to the public ; that, owing to the lay of the ground and locality of the premises, they were less offensive to the community than any other premises could be that would accom- modate the shipping public ;, and that they were as well kept as they could be." This evidence was objected to by the State and excluded by the Court, and this ruling is assigned as error. In Eex y. Russell, 6 Barn. & Cress. (Eng. Com. L. R., vol. 13, p. 254) 566, it was held by Mr. Justice Bayley, at nisi prius, that where a great public benefit accrues, from which arises the abridgment of the j:ight of passage, that abridgment is not a nuisance, but proper and beneficial. But in Rex v. Ward, 4 Adolph. & E. 384 (31 Eng. Com. L. 92), Russell's case was expressly overruled by the Court of King's Bench, and it is there held that a defendant indicted for nuisance " will not be permitted to show that the public benefit resulting from his act is equal to the public inconvenience which arises from it." In support of this doctrine, see, also, Respublica v. Caldwell, 1 Dall. 150 ; Angell on Tide-waters, "chap. 8 ; Roscoe's Cr. Ev., pp. 568, 790 ; Hart V. The Mayor, etc., of Albany, 9 Wend. 571, 582 ; Wharton's Am. Cr. Law (3d ed.), 799, and cases cited ; 3 iGreenl. on Ev., § 187. There was, therefore, no error in the exclusion of the proposed evidence. It is next urged that the second and fourth instructions given by 'the Court were erroneous. These instructions are almost in the pre- cise language of section 4409 of the Revision defining the crime of nuisance, and clearly mean the same thing, and, fairly construed, could not have misled the jury. Also it is Urged that the evidence is insuflScient to support the Verdict, because the alleged nuisance is not shown to have been an annoyance to the public generally ; and it is claimed that section 4409 of the Revision, under which defendant is indicted, provides no remedy "for any public nuisance. This section defines what acts constitute nuisances, and section 4412 (of the same chapter) provides, that " Whoever is Convicted of erect- ing, causing, or continuing a public nuisance br common nuisance as described in this chapter or at common law, When the same has not been modified or repealed by the statute, shall be pun- ished by a fine not exceeding $1000, and the court, with or without such fine, may order such niiisance 'to be held abated, and issue a warrant," etc. We need not determine whether each of the nuisances defined in sec- tion 4409 is not to be considered a public nuisance, and as sucb 552 CASES ON CEIMINAIi LAW. [CHAP. XLVI. indictable, for it is clear that the acts charged in the indictment in this case constitute a public indictable nuisance, both under this section and at common law. The indictment charges that the act's specified occasioned noxious exhalations, offensive and unwholesome smells, so that the air was then and there greatly corrupted and infected thereby, becoming and being dangerous to the health, comfort, etc., of all the good people of the State there passing, repassing, being, or residing. It also alleges that the enclosure from whence issued these noxious exhalations and offensive and unwholesome smells is situated near to divers public streets and highways. The evidence shows that the pens are within a few rods of a public street, and that persons passing thereon have been greatly annoyed by oflfensire smells issuing therefrom. It also appears that the pens are situated in a populous neighborhood. These facts established the public character of the nuisance. Affirmed. COMMONWEALTH v. PERRY, 139 Mass. 198 [1885]. Indictment charging that the defendant on June 1, 1884, and on divers other days and times between that day and December 2, 1884, at Needham, "near the dwelling-houses of divers good citizens of the said Commonwealth, and also near divers public streets and common highways there situate, then and there did keep and maintain, and yet doth keep and maintain, a large number of swine, to wit, five hundred ; by reason whereof divers large quantities of noisome, noxious, and unwholesome smokes, smells, and stenches, on the daj's and times aforesaid, then and there were emitted, sent forth, and issued, and the air thereabouts on the days and times aforesaid was greatly filled and impregnated with many noisome, offensive, and unwholesome smells, stinks, and stenches, and has been corrupted and rendered very insalu- brious to the great damage and common nuisance of all the citizens of said Commonwealth there being, inhabiting and dwelling, passing and re-passing to the evil example of all others in like case offending against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided. In the Superior Court, before the jury were impanelled, the de- fendant moved to quash the indictment, for the following reasons : " 1. The indictment sets forth no crime or offence known to the law. 2. No offence or crime is fully, plainly, substantially, and formall}' set forth therein. 3. It is not therein alleged that the neighborhood in CHAP. XLVI.] COMMOKWEALTH V. PEEBY. 553 which said alleged nuisance is located, is a populous neighborhood." This motion was overruled; and the defendant excepted. The defendant was then tried before Bacon, J., who allowed a bill of exceptions in substance as follows: The government introduced evidence tending to show that the defendant, between the dates men- tioned in the indictment, kept and maintained, in the town of Needham, on his premises consisting of about twenty-five acres of farming land, swine, to the number mentioned in the indictment ; that on said premises, and within a few feet of the marked Tree Road, a public highway, which bounded them on the west, there was a building used as a boiler-house, wherein the food for the swine was cooked, parts of which building were used as dwellings by the defendant's employees and their fami- lies ; that on the east of said building was a large building arranged for keeping swine, similar to the other, each of said buildings being con- nected with the next one west of it. Each of the buildings in which swine were kept was about two hundred and fifty feet in length, di- vided into about seventy-five pens, with wooden floors ; that the swine were during the latter part of said time all kept in said buildings, but during the rest of said time some had been allowed to range through a lot or field of about three acres, adjoining said buildings, some had been kept in pens adjoining said buildings, and some in the buildings ; that Great Plain Avenue, a public highway, bounded said premises on the north, and intersected with said marked Tree Road at a distance of eight hundred to a thousand feet from the place where said swine were kept ; that the nearest dwelling-houses were about five hundred or eight hundred feet from said place ; that on either side of Great Plain Avenue, both east and west of said intersection, and also on streets leading off of said avenue, there were, within a radius of one fourth of a mile from said place, a number of dwelling-houses, and a larger number within a radius of half a mile ; that odors were borne on the wind from the said place, and were noticeable on said highways ; that said odors produced discomfort, sickness, and disgust to some of the occupants of said dwelling-houses ; that at times they were so in- tense that some of said occupants were obliged to close their doors and windows ; that said odors were the odors natural to swine, described by one witness, as " pig odors," and by another as " the odor of one pig multiplied five hundred times," and by one other as " the odor of a piggery." It was conceded that no swill, slops, or unclean food was fed to said swine, but that they were fed only on good grains, beets, and other vegetables. It was also in evidence that farming and the raising of swine were largely carried on at various parts of the town ; in some cases, near the defendant's premises. 554 CASES ON CEIMINAL liAW. [CHAP. XLVI. The defiendant introduced evidence tending to show that said odors did not emanate from his premises; that there were other sources and places in the vicinity from which they might proceed; and that such odors as were emitted from his premises were merely the natural odors of swine, and were not offensive in character or degree. The defendant offered to show, as bearing upon the question whether the establishment xK)mplained of in the indictment was a nuisance, on account of its proximity to highways and dwelling-houses, that through- out the Commonwealth It had been and was customary to locate and conduct such establishments, containing similar or greater numbers of swine, in much more populous localities, and nearer to dwelling-houses and travelled streets ; that such establishments have so existed for j-ears, and are tolerated by the usage and customs and habits of society in the present day in this Commonwealth. The judge ruled that such evidence was inadmissible. The defendant requested the judge to instruct the jury as follows : " Evidence of the natural odors which come from the bodies of domes- tic animals (however annoying to certain persons) will not sustain an indictment for a nuisance. The keeping of swine to the number Of five hundred near dwelling-houses and streets of a town is not per se a nuisance." The judge refused. so to rule, but on this branch of the case instructed the jury as follows : "The natural odor of one animal might not be a nuisance, but the natural odor of five hundred might be. It is for the jury to say whether it was so in this case. Five hundred swine kept in the vicinity of roads and dwelling-houses might become a nuisance, where one would not. People residing in the neighborhood of this piggery have a right to have the air free and uncontaminated by odors, smells, and stenches offensive to the senses. It is not necessary for the government to show that the contamination of the atmosphere is to such an extent as to cause actual injurj' to health, but it will be suf- ficient for it to show that the smells and stenches are so offensive as to render the residences and habitations in the vicinity uncomfortable. The keeping of swine to the number of five hundred near dwelling- houses and streets of a town will become a nuisance-, if smells and stenches actually emitted from such keeping are such as to render such dwelling-houses uncomfortable for residents, or to render the passing in said streets uncomfortable." The jury returned a verdict of guilty ; and the defendant alleged exceptions. H. J. Boardman and S. S. Tyng, for the defendant. H. N. Shepard, Assistant Attorney-General, for the Commonwealth. CHAP. XLVI.J COMMONWEALTH V. MH^LER. 555 Holmes, J. A piggery in which swine are kept in such numbers that their natural odors fill the air thereabouts, and make the occupa- tion of the neighboring houses and passage over the adjacent highways disagreeable, or worse, is a nuisance. Commonwealth i;. Kidder, 107 Mass. 188, 192 ; Regina v. Wigg, 2 Salk. 460 ; s. c. 2 Ld. Eaym. 1163. See Commonwealth v. Oaks, 113 Mass. 8 ; Commonwealth v. Upton, 6 Gray, 473. The indictment was sufficient, and the instructions asked were erroneous. See, further, Commonwealth v. Rumford Chemical Works, 16 Gray, 231 ; Commonwealth v. Sweeney, 131 Mass. 579 ; Commonwealth v. Brown, 13 Met. 365. No defect has been pointed out in the instructions given. It would have been well if they had im- pressed more fully on the jury that the question was one of degree ; but that was implied by what was said, and the defendant asked nothing more specific. Evidence of the practice throughout the Commonwealth was inad- missible. See Cutter v. Howe, 122 Mass. 541, 549. Exceptions overruled. COMMONWEALTH v. MILLER et al., 139 Pa. St. 77 [1890]. Appeal by defendants from the Court of Quarters Session of Alle- gheny County. Before Paxton, C. J., STEEEErr, Geeen, Williams, McCullum, and MiTCHEL, JJ. On October 4, 1889, the grand jury returned as a true bill an indict- ment charging A. D. Miller, A. D. Miller, Jr., and R. B. Miller, with erecting and maintaining a common nuisance. The indictment was in four counts, charging in substance : 1. That the defendants, on August 1, 1889, at a certain place in the city of Allegheny (describing a certain square), near to divers public streets and to the dwellings of divers citizens of said countj-, unlaw- fully and injuriously did make, erect, and set up certain buildings to be used as an oil refinery ; and the said buildings, from that day contin- uouslj' until the taking of the inquisition, did and still do maintain, to the Common nuisance, etc., and contrary to the form of the act of assembly, etc. 2. That the defendants on that day and year aforesaid, at a certain place in the city of Allegheny, etc., unlawfully and injuriously did erect and set up certain buildings, wherein were then, and yet are, stored and kept large quantities of explosive and inflammable oils, and 556 CASES ON CEIMIKAIi LAW. [CHAP. XLVI, did erect, set up, and maintain certain tanks, stills, etc., used in the refining and distillation of crude petroleum ; by reason whereof divers noxious, unwholesome, deleterious, and explosive smells, stenches, vapors, and gases did and do arise, and in consequence thereof the air in the neighborhood was and is yet greatly impregnated with the noxious, etc. smells, and was and is rendered unwholesome and insalu- brious ; and the defendants, from the day and year aforesaid continually until the taking of this inquisition, the said buildings, tanks, stills,, etc., unlawfully and injuriously did and still do maintain, to the common nuisance, etc, contrary, etc. 3. That the defendants, on the day and year aforesaid, unlawfully and injuriously did erect and set up certain buildings, tanks, stills, etc., employed in refining oil located in the city of Allegheny, at a certain place, etc., in which stills, etc., were placed divers large quantities of explosive and inflammable oils, etc., and did on said day and year and continually thence until the taking of this inquisition, and yet do con- duct their said business of refining and storing oil at the place afore- said, in such a manner as to cause vast quantities of offensive, noxious, dangerous and explosive gases, vapors, and odors, to issue therefrom ; by reason whereof the air there and thereabouts was greatly filled with unwholesome, etc., vapors; to the great damage and nuisance of all the good citizens, etc., contrarj', etc. 4. That the defendants, on the day and year aforesaid, and on divers other days between that day and the day of the taking of this inqui- sition, with force and arms, at a certain place in the city of Allegheny, etc., near to the dwellings of divers good citizens of this county and to divers public streets, unlawfully, negligently, and improvidently did and still do keep, in certain stills, tanks, etc., divers large quantities of dangerous, inflammable, and explosive oils, to wit, certain crude petro- leum, benzine, etc., whereby divers good citizens of said county there residing, passing and repassing, are in great danger; to the great damage and common nuisance, etc., contrarj', etc. The defendants pleaded not guilty. At the trial on November 26, 1889, the following facts were shown : The oil refinery of the defendants, the subject of the indictment, was erected upon a tract of about four acres of land in the sixth ward of the city of Allegheny, bounded by the Ohio River, Adams Street, and Preble and Washington Avenues. It was built originallj' by one Hutchinson some time prior to 1862. In 1872 it was purchased by the defendants, and they have since operated it. The Pittsburg & Western Railroad track passes between the refinery buildings and the river, and the Cleveland & Pittsburg Railroad is laid upon the street which bounds the opposite side of the property, both railroads having switch CHAP. XLVI.] COMMONWEALTH V. MILLEE. 557 connections with the refinery premises. About seventy-five men were employed by the defendants in connection with their business. A large number of witnesses testified, for the Commonwealth, to the emission by the defendants' refinery of offensive and noxious smells. The greater number of them testified that they did not notice such smells after August 1, 1889, at least to any considerable extent. There was testimony, also, relating to dangers to surrounding buildings from fire and explosions in the refinery. It appeared that in August, 1889, a part of the refinery was destroyed by a fire, the extinguishment of which required the efforts of the city fire department for nearly twenty-four hours. The jury rendered a verdict finding the defendants guilty in manner and form as indicted. Thereupon the defendants made a motion in arrest of judgment. Mr. Justice Williams. The defendants own and operate a refinery where crude petroleum and its products are prepared for market. There are four acres within the enclosure fronting on the Ohio River. The Pittsburg & "Western Railroad passes in front of it, along the river's edge. The Cleveland & Pittsburg Railroad runs upon the street directly in the rear. The city of Allegheny, like its sister city Pitts- burg, owes its growth and prosperity to the extent of its manufactur- ing interests, and the river front is almost wholly given over to the great industries. The indictment charges that the defendants' refinery is a public and common nuisance, because of the emission therefrom of certain noxious and offensive smells and vapors, and because the oils and gases stored and used therein are infiammable, explosive, and dangerous. The jury, under the instructions of the Court, found the defendants guilty, and the sentence which has been pronounced requires the abatement or destruction of a plant in which some three hundred thousand dollars are said to be invested, and which gives employment to seventy-five men. The assignments of error are quite numerous, but the important questions raised are few. The first four assignments, the sixth, ninth, tenth, and sixteenth, may be considered together, as they relate more or less directly to the same subject. The learned judge had his attention directed by the written points to the definition of a public nuisance, and to the circum- stances under which the defendants' refinery had been established and njaintained for many years ; and he instructed the jury that the char- acter of the location where the refinery was established, the nature and importance of the business, the length of time it had been in operation, the capital invested, and the infiuence of the business upon the growth and prosperity of the community, were no defence to an indictment for nuisance. Among other expressions used by him are the following : 558 CASES OK CRIMINAL LAW. [jCHAP. XLVL "It is no defence to an indictment for a common nuisance that the business complained of has been in operation many years." "I do not think the size of an establishment makes any diflference." And again : " Neither is it a defence in any measure that the business is a useful one," etc. If it had been an admitted or an established fact that the business of the defendants was a common nuisance, and they have attempted to justify its maintenance, these instructions would have been appropriate; but the question before the jury was whether the business was a nuisance. The. decision of that question depended upon a knowledge of all the , circumstances peculiar to the business, the place, its surroundings, and the employments of the persons in the vieinitj'. While no one of these, nor all together, would justify the maintenance of a nuisance, they might be sufficient, and they certainly were competent evidence from which the jury might determine whether the defendants' refinery was a common nuisance at the place where it was located, and this was the question to be determined by the triaL' They might make, therefore, or contribute to make, a defence to the indictment trying. This distinction between an effort to justifj' an admitted or established nuisance, and a denial that the business com- plained of amounts to a nuisance, was evidently in the mind of the learned judge; but in the haste that attends jury trials, he failed to place it clearly before the jurj'. He did say that the facts referred to had " weight, and are to be considered in determining the degree of the injury pronounced, and whether the effects are so annoj'ing, so pro- ductive of inconvenience and discomfort, that it can be said to be really so prejudicial to the public as to be a nuisance," but, following an explicit statement that these same facts were "no defence to an indict- ment for erecting and maintaining a nuisance," such as they were then trying, the jury was left without an adequate presentation of the defence. That such f&,cts are proper for consideration and may make a defence, has been long and well settled. Wood on Nuisance, § 430. The same rule was applied in this State in Huckenstine's App., 70 Pa. 102, and in Commonwealth v. Reed, 34 Pa^ 275. The character of the business complained of must be determined in view of its own peculiar location and surroundings, and not by the application of any abstract principle. Wood V. Sutcliffe, 8 Eng. L. & E. 221. In the case last cited. Lord Cranworth referred to a case at nisipHus, in which he had instructed the jury to consider, not only whether the quantity of smoke complained of would amount to a nuisance, considered abstractly, but " whether it is a nuisance 'to a person living in Shields," which was the name of the town in which the business vras conducted. It was in this respect that the instructions complained of in the filrst, second, and third specifi- CHAP. XLVI.] COMMONWEALTH V. MILLEE. 659 cations were inadequate. They gave the general rule without the qualification which the situation of the defendants' refinery entitled him to. The right to pure air is, in one sense, an absolute one, for all persons have the right to life and health, and such a contamination of the air as is injurious to health cannot be justified, but in another sense, it is relative, and depends upon one's surroundings. People who live in great cities that are sustained by manufacturing enterprises must necessarily be subject to many annoyances and positive discomforts, by reason of noise, dust, smoke, and odors more or less disagreeable, produced by and resulting from the business that supports the city. They can only be relieved from them by going into the open country. The defendants had a right to have the character of their business determined in the light of all the surrounding circumstances, including the character of Allegheny as a manufacturing city, and the manner of the use of the river front for manufacturing purposes. If looked at in this way, it is a common nuisance, and should be removed ; if not, it may be conducted without subjecting the proprietors to the pecuniary loss which its removal would involve. Judgment reversed. INDEX. ACCESSORY. principal and accessory, 137, 138-139. aid and advice, giving, 1 78. liability, where instructions exceeded, 138 note 1. intent of, not to be extended by construction beyond its plain extent, 179-181. one laying a trap to catch a thief not an accessory (no felonious intent), 328, 329. accessory of accessory, 462. court must have jurisdiction of principal, 69. acts of accessory in different jurisdiction, 129-130, 130 note 1. ADMIRALTY JURISDICTION. limited to the sea and tide-waters, ordinarily, 26. tidal rivers in foreign countries, 429-436. when concurrent with common-law jurisdiction, 19. over acts done on ship-board, 151-152. in the United States before the Revolution, 14. in the United States, generally. {See United States.) AGENT: AGENCY. responsibility of principal for acts done by innocent agents, 126, 128, 129, 506. innocent agent not necessarily ignorant of principal's criminality, 131-133. unconscious agent, 133-134. AIDING- AND ABETTING, parties, are principals, 460. ANIMALS. poisoning, as a common-law offence, 9. as subjects of larceny. (See Larceny, I.) "unlawfully" killing pigeons, 391-393. ARREST. Resisting illegal arrest. (See Illegal Akkest.) ARSON. what constitutes a burning, 484-485. burning, by wife, of husband's house, 485. ASSAULT. outward demonstration, not secret intention, constitutes the offence, 155. putting in fear, 154. pointing firearm, 153. 36 562 INDEX. ASSAULT — continued. consent. (See Assault and Battery.) with intent to commit rape, 208. with intent to carnally know and abuse a young girl, 211-214. doctrine of incapacity to consent, 153, 213. ASSAULT AND BATTERY. force, mode of application not material, 157. by administering drugs, 156-157. actual physical force not necessary. Fraud, 156. consent on the part of the person injured, how far an excuse, 162. when justifiable. to recapture chattels wrongfully taken, 157-160. degree of force allowable, 159. ATTEMPT. (5ee Solicitation.) where completion of crime is impossible, 117. AUTREFOIS CONVICT. rule not applied, where offences distinct, ,325. BAILMENT AND BAILEE. taking by bailees. (See Larceny, IV. (J), Embezzlement,) BATTERY. (See Assault and Battery.) BETTING, property in wager does not pass, 316-320. BIGAMY. intent, 89-90, 91-92. honest belief of death or divorce of former husband or wife, 88-BO, 90 note 1, 90-92. presumption of death, 89. bigamy committed from religious conviction of duty, 95-100. BREAKING BULK. (See Larceny, IV. (J).) BUILDING. (See Burglary.) larceny from. (See Larceny.) BURGLARY. breaking into a building, 474-482. church as a building, 476. tomb, 474-482. in the night-time, 476. with intent to commit a felony therein, 110, 207, 482-484. breaking with intent to commit mere trespass, 109-110, 111. Aamsocna, 474 note 1, a, b. statutory breakings in New York, 476-482. BURNING. (See Arson.) CANTHARIDES, administering, 111-114, 155-157. CARNAL ABUSE OF YOUNG GIRLS. statutory provisions regarding, do not repeal the law of rape, 210. But see 210, note. INDEX. 568 CARNAL ABUSE OF YOUNG GIRLS — continued. consent, lack of consent makes the offence rape also, 210. doctrine that the ofience is statutory rape, regardless of consent, 211, 212. doctrine of incapacity to consent, 153, 213, 214. CHEATING, as a common-law offence, mere lying by words, without false tokens, etc., 11-12. COMMON LAW OF ENGLAND. to what extent a part of American criminal lawj 1-3, 3-5, 6-9. adopted by State Constitutions, 4, 5. (See United States.) adjudication prior to Revolution unnecessary, 5. COMMON LAW OF AN AMERICAN STATE, what constitutes, 2, 4-5. {See Common Law of England, Statutes (Early English), Usage.) COMMON LAW OF THE UNITED STATES. {See United States.) CONSENT. {See Rape, Carnal Abuse, Assault, Assault and Battery, Larceny, IV. (6), (e).) CONSPIRACY. what evidence is sufficient to show association, 13. proof of overt act done in pursuance of, 13. intent of prosecutor to cheat prisoner, 142-145. CONTRIBUTORY GUILT, of person injured, as excuse, 142-145, 146-147, 148-149. CONTRIBUTORY NEGLIGENCE, of person injured, 149-150, 150. CONVERSION, of realty into personalty. (See Larceny, I.) COUNTERFEITING. {See Forgery.) counterfeiting foreign securities within the United States, 32-38. counterfeiting coin of United States. Jurisdiction, 63-67. uttering counterfeit United States coin. Jurisdiction, 63-67. intent of uttering, 145. CRIMINAL INTENT. {See Intention.) CUSTODY. (See Larceny, II. III., Master and Servant.) DEFINITION OF A CRIME, what constitutes a definition of a crime by statute, 23-30, 38. DESTROYING PROPERTY, whether larceny. {See Larceny, V. (a).) DISTRICT OF COLUMBIA. (See United States.) DRUNKENNESS. voluntary, as an excuse for crime, 77, 78, 81-82, 188, 189. involuntary, 77. in its bearing on questions of intention, malice, etc., 79, 189. on the question of degree in murder, 78, 190, 191. on questions of provocation, hot blood, etc., 79, 79-80. delirium tremens, 81-82. 664 INDEX. EMBEZZLEMENT. 1. Distinction between embezzlement and larceny, 310-314, 408-409. embezzlement viewed as species of larceny, 407 note 1, 467. II. Questions of possession. (See Larceny, Master and Servant.) IIL Embezzlement statutes in England, 399 and note 1, 401 and note 1. in Massachusetts 407, note 1. origin of, and reason for, 408-409. do not cover cases of common-law larceny, 402. IV. The fiduciary relation. necessity for, 408-409. how proved, 393-394. "clerks, servants," etc., who are, within meaning of embezzlement statutes, commission agents, 402-404. clerks, servants, etc., paid in commissions, 405-407. equitable fiduciary obligations. insolvent and trustee for creditors, 394-395. V. T-Jje possession of the servant, agent, etc. goods passing through the servant, etc., to the master, 310-312, 395, 395-397. money paid to a servant at the master's request, to test the servant's honesty, 401-402. (See Master and Servant.) possession must be acquired under ordinary course of duty or authority as servant, agent, etc., 397-398, 398-401. taking proceeds of unauthorized employment of the master's prop- erty, 397-398, 398-401. ENTERING UPON REAL ESTATE. (See Forcible Entry.) EVIDENCE. of deliberation necessary to murder in the first degree, 191, 192. of conspiracy, 13. of fiduciary relation in embezzlement, 393-394. possession of stolen goods evidence of what, 470. FALSE IMPRISONMENT, authority to imprison, where valid, 151-152. FALSE PRETENCES, OBTAINING BY, CHEATING BY. distinguished from larceny, 271-272, 318, 410-411. intention to pass property. failure of meeting of minds, otherwise than as to false inducement, 318-319, 410-411, 411 note 1. parting with goods induced by threats, 324. goods parted with by servants having only limited authority, 321-324. dominion obtained must be property. custody insufficient; case of stealing a ride, 411-413. but property not inconsistent with ultimate return to original owner, 413-414. generally. (See Table of Contents.) obtaining, etc., as an offence against United States bankruptcy laws, 58-60. FALSE WEIGHTS, MEASURES, OR TOKENS. (See Cheating.) INDEX. 665 FELONY, what amounts to, 105, 110. FIGHTING. by mutual agreement, when an assault and battery, 160-163. distinguished from self-defence, 193. unintentional killing in fight, 193. FINDING. {See Larceny, VI.) FORCIBLE ENTRY. indictable at common law, 471 note 1, 472-474. Stat. 5 Rich. II. c. 7, 472. what constitutes force and violence, 472-474. title in the defendant, 471-472. FORGERY. L Definition, 494, 505. II. Must be of some writing, 488, 491. trade-marks, trade-labels, etc., 486-492. signature not necessarily a " writing," 486-488. character of the " writing," 492. "false instrument," what is, 494, 496. false and fraudulent statements of fact in writing, 494. signing one's own name, falsely importing authority, 495, 495-497, fictitious signatures, 497-506. assumption of character and credit, 498, 503-506. no such assumption of credit of supposed" signer, 501-503. signing one's own name may be forgery, 503-506. III. Fraudulent intent may be solely in one who procures the signing, 503-506. IV. Uttering the forged writing. mere exhibition, to gain credit thereby, 508. to accomplice alone, insufficient, 507. to innocent agent, to utter, 127-128. intent to gain credit thereby, what is, 509-511. knowledge of the forgery necessary, 22-24, 126. uttering, in one jurisdiction, of instruments forged in another, 125-126. posting forged writings to another jurisdiction, an uttering, 127-128. V. Forging foreign securities within the United States, 32-38. FRAUD vitiates consent. {See Larceny, Rape.) GAS, larceny of, 381-383. HAMSOCNA. (See Burglary.) HOMICIDE. I. Mode of inflicting death ; cause of death, direct physical contact unnecessary, frightening, 163. starving, 165. procuring false conviction and execution, 167. killing by unconscious agent, 133-134. intervention of other influences, as improper medical treatment, 168- 172. 566 INDEX, HOMTCTDE — continued. II. Intention to kill. (See Manslaughter, Murder.) actual design unnecessary. "culpable negligence," 101, 106, 115, 173. (See Negligence.) omission to supply medical treatment, from honest opinion, 100-< 103. homicide in commission o£ other unlawful act, 104-106,, 164. provocation, 175. III. Excuses for homicide. self-defence, as excuse, 193, 197-199. defence of other persons, 195. under what exigency, 195. other forms of necessity, 194-202. homicide by mistake, 85. contributory negligence of person killed, 149-150, 150. HUSBAND AND WIFE. burning, by wife, of husband's house, 485. stealing by wife from husband, 359-361. wife receiving stolen goods as agent, 457-458. (See Bigamy.) IGNORANCE OF LAW, 83-85. acting under bona fide claim of right, 83-85. IGNORANCE OF FACT, as an excuse, showing absence of criminal intent, 85. in cases of mala prohibita, 86-88. bigamy, 88-92. (See Bigamy.) honest, but mistaken, belief in a fact, 90 note 1, 90-92. INCITEMENT TO CRIME. (See Solicitation.) INDICTMENT. statutory crime, not necessarily sufficient to set out offence in word^ or statute, 22-24. rape, in Massachusetts, need not state woman's age, 211, 212. allegation of ownership in larceny. (See Larceny, III.) INFANT: INFANCY. presumption of capacity in rape, 117. INSANITY. when an excuse for crime, 73-77. irresistible impulse, homicidal tendency, moral insanity, 73-77. INTENTION: CRIMINAL INTENT. I. Generally an essential of crime, 89, 100. inferred from nature and results of act, 90, 156. natural consequences presumed to be intended, 170, 188. unintended consequences of unlawful acts, 106-109. (See Unlawful Act.) unintended consequences of felonious acts, 183-187. recklessness of probable results, 104-106, 121-122. INDEX, 567 INTENTION: CRIMINAL INTENT — continued.- crimidal negligence generally, 105-106, 115. comeidenee witli act necessary, 69. intent not alone sufficient without act, nor intent with act insufficient to constitute crime, 111-114. but ability to complete act unnecessary, 117. II. Actual criminal intent. religious belief tending to show absence of, 100-102. doing a prohibited act as a religious duty, 95-100, 102-103. III. Criminal intent in rrtala prohibita, 90, 91-92, 93-94. (See Statutory Offences. See II. above.) IV. Intention, on part of prosecutor, to defraud, 142-145, 146-147, or join in defeating the law, 148-149. V. See also under names of specific offences. INTOXICATION. (See Drunkenness.) JURISDICTION. in country, state, etc. where crime committed, 126, 129. (See Admiralty.) over foreigners, 152. crime committed at a distance, by agent, 125-126. receiving by innocent agent within jurisdiction, 129. jurisdiction over acts of accessories, 69', 129-130, 130, note 1. Uttering committed by posting within jurisdiction, 127-128. of tribunals constituted by statute, 2-3, 15-16. of justices of the peace by usage, 9-11. of United States courts. (See United States.) in admiralty; (See Admiralty.) (See also names of particular offences'.) KNOWLEDGE. (See Ignorance.) LARCENY. I. The thing taken, whether subject of larceny. articles affixed to and part of the realty, 2S7, 241. statutes relating to, 237 note 1. what degree of physical connection necessary, 240-242. conversion into chattels by severance. severance to be distinct from taking; 253-256. water in underground pipes, 238. animal's. dead domestic animals, 239, 240. animals /ercB naturce, 248-252. though actually tame and valuasble, 248. dogs, 248-251. when reclaimed, 251-253. See 248 note 1. when killed, 256-263. non-tangible articles. illuminating gas, 381-383. written papers. which pass with the realty, 242-244, 245, note 1. 568 INDEX, LARCENY — continued. court records, government documents, etc., 246, 350-352. unsatisfied securities for money, 244-245, 246, note 1, note 2, 365- 366. stocks and bonds, 429-436. returned checks and paid notes, 245, 247, 312. post letters, 346-349. money, 83, 316-320, 361, 364. II. Interests in the thing, the subject of larceny, property and possession. (See III. below.) depositing wager at a race, 316-320. actual possession and right to possession, 295-296. actual possession and constructive possession, 290, 291, 310. possession and custody, 232-236, 287. (See Master and Servant.) theory that actual possession of the exterior casing of goods is not ne- cessarily possession of the goods, 214-220, 299. abandonment of possession, what is, 240. III. The taking, an invasion of possession, 267, 268. "owner" must have possession, 267, 268. actual or constructive, 232-236, 310. possession of bailees, 321-324. "owner" need not have title, 273-278, 421-426. indictment properly alleges property, 36 V. right to possession supports indictment, 273, 276, 278. where defendant has title, 273, 275. alone or jointly with others, 276-278. possession of "owner" not necessarily lawful, 366-368. stealing out of one's own lawful possession, 293-296. steahng in one's own house, etc., 137, 303, 389, 390. an invasion of mere custody insufficient, 263-267, 336. invasion, by one having custody, of possession also, 232-236, 247, 268-269, 281, 282, 282-291, 310. an invasion and acquisition of property also not larceny, 270-272, 356- 358,410-411. (See False PretenCes.) distinguish intention to pass title on condition, 363. IV. The taking, as a trespass, a cepil. planning theft, being present, sharing proceeds, 385, 386. mere refusal to deliver, as in duty bound, 361-366. withholding change, 361-364. conversion by bailee, purpose of bailment over, 364-365. (See IV. {b), below.) holding lost property for reward, 365-366. Asportavit, what constitutes, 352-356, 380-386. case of illuminating gas, 381-383. instantaneous taking, 380-381. interruption of control, forwarding by rail, 458-460. continuing trespass, 281. (a). Taking by bringing goods into another county, 368, 369, 458-460. into another State, American rule, 368-375, 377, 436-441. into England, from abroad, 373, 378-379, 379-380, 428-436. INDEX. 569 LARCENY — continued. into England, after theft on high seas, 373. into an American State from abroad, 376-378. bringing by officers of the law, 375-376. forwarding by agent, 458-460. (J). Taking to be against owner's will. possession obtained by consent, subsequent appropriation. possession of bailees. for purposes of bailment only, 216, 307. subsequent appropriation, 290, 291-309. purpose of bailment over, 364. larceny by breaking bulk, 296-309, 339-343. causes and origin of rule, 299. taking entire contents of package, 300. taking part of mass : no proper package, 304. taking part of several separate packages consigned to- gether, 301-303. taking part of several separable articles originally packed in one parcel, 308, 309. authority to open the parcel and deal with each article separately, 309. theory that unauthorized dealing terminates the bail- ment, 307, 308, 309. bailees' larceny statutes, 332, 339. (c). Possession obtained from servants who have authority to part with it. authority to be complied with strictly, 321-326. deceiving servant, 321-326. (rf). Possession obtained without knowledge of either party, 219, 225-228. mistake as to identity of thing transferred, 220-228, 229-231. mistake as to act of transfer, 279. interest originally acquired in such cases, 226, 280. time of actual invasion of possession, 220, note 1, 220-228. theory of continuing trespass, 280, 281. analogy of finding lost goods, 219, 223, 224. (e). Consent, when invalid. consent obtained through misunderstanding, 331-332. consent obtained by trick or fraud, 306, 314-31.5. possession received animo furandi, 293, 316-320, 364-365. consent obtained by threats, 324. __ .taking allowed, to detect thief, 326-331. owner not made accessory thereby, 328, 329. (/). Taking under color or show of title or authority, 83-84, 84-85, 111, 218. V. Animus furandi. The intent of taking. must coincide with taking, 225, 229-231, 281, 342-343. (See cases below, on finding lost goods.) intent to take absolute dominion, 266, 277. intent to take permanent dominion. intention absolute to return, 263-267, 358. temporary holding for reward, 365-366. intent to use temporarily and abandon, 350. 6T0 INDEX. LARC'E'NY — continued. intent to return, but only for value, 268, 269, 282-284. to use stolen railrgad tickets, 335-337. goods pawned, with intent to redeem and replace,. 337-838, i note 1, 338-339. intent must correspond in time with taking, 342-343. (a.) Self-beneflt not necessarily intended, 344-356, 350, 350-352. lucri causa : civil law rule, 347-349. lucrum, what is, 245, 346, 348, 349, 352-356. avoidance of penalty or inquiry, 346-349, 352-356. inducing owner to follow goods, 358. destruction of property, 344, 346-349. VI. Finding and taking lost goods. when larceny from the beginning, 219, 332-334. mislaid goods distinguished, 334-335. taking originally innocent becomes larcenous, when, 280, 333. VII. Stealing from oneself, out of one's own lawful possession, 293-296. by one in actual possession. (See Lakceity, III.) stealing by wife from husband, 359-361. where husband has possession, but only joint property, 360. from husband by paramour of adulterous wife, 359. Vni. Larceny from the person. protection of the person includes, what, 386-387, 389. IX. Larceny from a building. statute for punishing, 388. property intended to be covered by the Act, 387-389, 389. stealing in one's own house, 137, 389, 390. X. Larceny from a ship, 303. XI. Larceny of mail from the post-office, 352-356. LAW OF NATIONS, offences against. United States jurisdiction over, 28-30. nature and requirements of the law, 32-38. LIBEL. what constitutes, 511. malice in, 512-517. use of words in libellous sense, 519-520. innuendo, 520. truth no defence, when, 524-526. allegations of indictment, 526. publication, 527. LOCALITY, as affecting jurisdiction. (See Jurisdiction.) LOST PROPERTY. (See Larceny, VI.) holding for reward, 365-366. LUCRI CAUSA. (See Larceny,, V. (a) . ) MAGISTRATES, corrupt abuse of authority by, 6. MALICE. (See Malicious Mischief.) wilfulness distinguished: — inference from, 118-119. malice against person injured inferred from general malice, 122-124. how affected by intoxication. (See Drunkenness.) ESDEX. 571 MALICE AFORETHOUGHT. {See Murder, Intent.) deflnitiou, 188. carrying out of specific intent unnecessary. as to person intended, 176-178, 183. as to any intent to kUl, 183-187. MALICIOUS MISCHIEF: MALICIOUS INJURIES TO PROPERTY, malice in, 118-120. intention to injure, 106-109, 120-122. recklessness of probable results, 108, 122. MANSLAUGHTER. {See Homicide.) homicide in resisting illegal arrest, 175. unintentional killing in fight, 198. culpable negligence, 101, 106, 115, 173. MASTER AND SERVANT. servant having custody merely, 290, 291. money given by master to servant to pay over, 290, 310,811, 312. constructive possession of master, 290, 291, 310. servant having possession. case of money, etc., passing through servant to master. when possession in master, 232-236, 311-814, 395, 395-397. case of money paid to servant to try honesty, 401-402. taking by servants. {See Embezzlement, Larceny, III., IV. (6), (c).) transfers of possession by servants with authority. {See Larceny, IV. (c).) MAYHEM. {See 482-484.) not felony in Massachusetts, 109-110. MISDEMEANORS, what are, 7-8. all parties principals in, 69. preparatory steps toward accomplishing, 141. MISTAKE. {See Larceny, IV. (rf).) overpayment by mistake, 229, 407-409. MURDER. {See Homicide.) definition, 184, 188. distinguished from manslaughter, 188. intent. {See Malice aforethought.) to kill some reasonable creature, 178, 183. not necessarily the one actually killed, 176-178, 183. to commit some felony, 185. limitation of the rule discussed, 185, 186. to do grievous bodily harm, 188. wilfulness or negligence, 166-167. not necessarily deliberate and premeditated, 190: except to constitute statutory murder in the first degree, 190-192. statutory degrees. murder in the first degree. ,^general requisites, 190. deliberate premeditation, 190. drunkenness, as bearing on, 190, 191. evidence of deliberation, 191, 192. 672 INDEX. NATIONAL BANKS. jurisdiction as regards embezzlement of funds, 67-70. larceny of funds, 70-72. NECESSITY. to what extent an excuse for homicide, 194-202. for larceny, 198. NEGLIGENCE, NEGLECT. omission of duty, 115, 116. criminal negligence, 105-106, 115. (See Intention.) neglect of mere private duty, 116. neglect to furnish medical treatment, 100-103. (See Contributory Negligence.) NUISANCE. what is a public, 543. improper use of streets, 543-549. unwholesome odors, 549, 552. noise, 550. public benefit equal to public inconvenience will not justify, 551. proximity to public streets, 552. locality, 554. discomfort enough ; injury to health unnecessary, 554. question one of degree, 555. manufacture of dangerous commodities, 555. situation to be considered, 558. that business a useful one no defence, 558. what must be considered, 558. surrounding circumstances, 559. PARTIES IN CRIME. (See Accessory, Agent, Principal.) PENSIONS, embezzlement of, 55-57. PERJURY. false swearing that a subscribing witness to a deed, 528, 533. what constitutes, 535. what is sufficient corroborative evidence, 536. as to facts in issue, 538. material circumstances, 540. what is an oath required by law, 541. PERSON, larceny from. (See Larceny, VIII.) PHYSICIANS AND SURGEONS, prescribing a dangerous drug without due care, are guilty of culpable negligence, 173. " maltreatment " not necessarily wilful, 171. PIRACY. what it Is, 30-31. United States jurisdiction of piracy, 28-31. POLYGAMY. (See Bigamy.) POSSESSION. (See Larceny, II., III., Master and Servant.) PRINCIPALS IN ■ CRIME. (See Accessory, Agent.) joint principals ; knowledge of each other's share in the crime immaterial, 135-136. INDEX. 573 PRIJfCIPALS IN CRIM^ — continued. principal and accessory, 138-139. principal in larceny, and receiver, 137. persons present aiding and abetting, 460. all principals in misdemeanorj 69. RAPE. definition, 208. " force " does not mean violence, 203, 204. fraud as a substitute for force, 204, 20.5, 208, 209. personation of husband, 203-206. taking advantage of unconsciousness, 205. " without consent; " meaning of " consent," 205, 206. doctrine that fraud vitiates consent, 206. doctrine of incapacity of young girls to give consent, 213. presumption against infant's capacity to commit, 117. law of rape not repealed by statutes providing for punishment of carnal abuse of young girls, 210. (But see 210, note.) REALTY, as subject of larceny. (See Larceny, I.) KECEIVING STOLEN GOODS. statutes, 461, 462. originally considered as accessory offence to larceny, 367, 461, 462. now treated as substantive crime, 70-72. co-operating in securing stolen goods, 452-454, 455. co-operating in theft, 137. I. The preceding larceny. must be a technical " stealing," 417, 467. {See Stealing.) receiving embezzled goods, 467. receiving from obtainer by false pretences, 467-468. must have been committed within the jurisdiction of the receiving, 428-441. as mere conventional taking, 436-441, 458-460. conviction of thief, 461-462. may have been in another jurisdiction, 436-438. record establishes ownership of goods, 368. IL The goods received. to be technically " stolen " goods, 417. (See Stealing.) character not to be lost before receiving, as by recapture and resump- tion of control, 417-427. III. The possession of the receiver. control, not manual possession, necessary, 442-445. aiding and abetting in receipt, 458-460. receiving by wife as agent, 457-458. control with thief's consent, 441-442. whether necessarily direct from thief, 460-462, 461, note 1. statute in England, 463-464. control exclusive of control by thief, 445-456. joint possession with thief, 444, 445-456. possession as agent of thief, 444. co-operating to secure goods, 445-456. bargaining with thief for goods, 445-456. 674 IJJDEX. RECEIVING STOLEN GOODS —continued, IV. Guilty knowledge essential to receiving, 440, 457-458^ knowledge of facts which constitute larceny, 359, 466-469. mistaken belief as to effect of facts, 467. evidence of knowledge, possession of other stolen goods, 470. certainty of knowledge not required, 469. need not include knowledge by whom stolen, 434. V. Intent. Malus animus essential, 440. intent to derive profit unnecessary, 453, 465, 465-466. to aid the thief, 3,3 by concealing or otherwise securing the goods, 440, 453, 445-456, 465, 465-466. RELIGIOUS CONVICTIONS, as excuse for crime of bigamy, 95-100. as excuse for neglect to furnish medical attendance, 100-103. REPEAL OP STATUTE. (See Statute.) RESISTING ARREST, homicide in, -where arrest illegal, 175. RIVERS, BAYS, etc. (See Admiralty Jqeisdiction, United States.) ROBBERY. person robbed must have had possession, 267, 268. ' extorting signature of note, 267, 268. there must he animus furandi, 84-85. SEAS. (See Admiralty Jurisdiction, United States.) meaning of term " high sea," 50. SELF-DEFENCE. distinguished from fighting, 193. as excuse for homicide. (See Homicide.) SHIPS. ((See Admiralty, United States.) larceny in. (See Larceny, X.) SOLICITATION, to commit larceny, 139-140. to commit a misdemeanor, 141. STATUTES. rules of construction. simple repeal of repealing statute revives pre-existing law, 4. references to crimes adopt common law, 22-24. definition of crime by statute, 29-30, 38. STATUTES, EARLY ENGLISH. how far part of American common law, 2, 9-12, 462. STATUTORY OFFENCES, intent. (See Intention.) knowledge of unlawfulness. (See Ignorance.)' ' where statute prohibits " unlawful " doing of act, 391-393. (See names of particular crimes.) STEALING. meaning of word when used in statutes, 347, 348. " stealing a ride," 411-413. SUICIDE, attempt to commit, 79, 104-105. INDEX. 575 TAKING. (See Larceny.) TERRITORIES OF THE UNITED STATES. (See United States.) THREATS, money obtained by, 324. ' TOKEN, false. (See Cheating.) TRESPASS. (See Larceny, IV.) UNITED STATES, judicial power of, over crimes, arises wholly by concessions of the States, 15. reserved rights of States, 17-22, 51-55. none by common law, primarily, 14-17. statutory adoption of common law in District of Columbia, 22. statutory adoption of Spanish law in Florida, 46. adoption of common-law requirements by use of common-law terms in statutes, 22-24. adoption, by Constitution and statutes, of the law of nations, 29-31, 38. judicial power, how conferred upon Federal courts, 15. judicial powers exercised directly under Constitution, admiralty and maritime, 24-28. (See Admiralty.) how far affecting jurisdiction of States, 17-22, 55. judicial power over particular offences. offences against the law of nations, 28, 32-38. piracy and felonies committed on the high seas, 28, 49. statutory offences against pension laws, 55-57. frauds against United States bankruptcy laws, 58-60. offences under police regulations, 60-63. alleged offences against State laws, 63. jurisdiction over crimes in certain localities, under acts in regulation of commerce, 27. generally, over high seas, 28-31, 49-50. (See Admiralty.) three-mile belt, 50, note 1. rivers, bays, etc., of the United States, 17-22, 51, 51-55. rivers in foreign countries, 49-50, 49, note 1. United States ships-of-war, 17-22. United States forts, docks, arsenals, etc., 20. places ceded by States, 39-42. District of Columbia, 22. territories, 43-48, 95, 99. jurisdiction as between Federal and State courts, reserved jurisdiction of States, 15, 17-22, 51-55. jurisdiction not conferred by Constitution on the United States, 63-67. jurisdiction conferred, but not exercised, 19, 17-22, 67-70, 70-72. jurisdiction of United States courts excluding jurisdiction of State courts, 67-70. jurisdiction concurrent in appearance, 63-72. UNLAWFUL ACT, responsibility for unintended consequences of, 104-109, (See Intention, Negligence.) 576 INDEX. UNLAWFUL ACT — continued. recklessness as to probable results, 106, 108-109. homicide in commission of, 104-106, 164. {See Homicide.) where the unlawful act is a mere civil wrong, 106. belief of lawfulness, 391-393. (See Ignorance.) intervention of other influences, 168-172. USAGE, how far a part of the common law, 2. UTTERING. (See Forgery, Counterfeiting.) VENUE, in larceny. articles stolen in railway carriages, 335. taking goods into new county, etc. (See Larceny, IV. (a).) WATER, larceny of, 238. COMPARATIVE INDEX TO MAY'S CRIMINAL LAW, SECOND EDITION, AND CHAPLIN'S CASES ON CRIMINAL LAW. Mat. Sections. Accessories , , . 70 none in misdemeanors 72 Accident 237 negligence 29 Accidental Injury 216 Acquiescence for detection, effect of 22 Act and intent must co-exist 6 intent presumed from unlawful 27 Arson, malice 254 Assault 205 and battery 206 consent 208 < consent secured by fraud 209 mode of application 211 putting in fear 212 menace, but no intent to commit a battery , 213 Assistance must be personal . 75 Attempts 18 preparation, intent 183 Battery 206 Bigamy 196 Bribery 140 Burglary, actual breaking 257 dwelling-houses 260 intent 267 time 266 statutory breakings 268 By-laws and police regulations 65 Carnal knowledge 242 without consent 244 Character, evidence of 129 Cheating 818 Concurrent jurisdiction 83 Consent, assault 208 < 37 CauLiH. Paoes. 69, 129, 130, n. 1, 137, 138, and n. 1, 178, 179, 328, 329, 462. 69, 492. 103. 105, 115, 116. 85. 167, 326, 328, 329. 69, 111, 117. 90, 156, 168. 106, 120, 484, 485. 153-155. 155-157. 153, 160, 162, 205, 206, 210-214. 155, 156, 206. 155, 157. 153, 154. 153, 165. 70. 117. 140. 155-157. 88-91, 95. 6. 474, 476. 474. 109-111, 207, 482. 476. 474, 476. 86, 90, 91, 93. 203-205, 208, 209. 205, 206, 213. 466. 11, 486. 17, 19, 63, 67, 70. 153, 160, 162, 205, 206, 210-214. 578 INDEX. Mat. Sectiohs. Consent — continued. eSect of . . Criminal Law of the United States secured by fraud 209 Conspiracy 186 Constructive intent 28 | specific intent ^^1 Contributory negligence, effect of 24 Counterfeiting 336 Crime, by what law defined 1, 2 commission of a different 71 continuing crime 80 statutory 3 justification for 60 Custody and possession 299 i Defence 63 of self 64 of another person 65 of property . 66 Delirium tremens 48 Description, pleading 106 Detainer and forcible entry 167 what may be entered upon or detained . . . 169 Detection, effect of acquiescence for 22 Drunkenness, voluntary 46 Embezzlement i . . . 298 custody and possession 299 clerk, servant, agent, officer 300 agency 301 employment 302 Evidence of character 129 Execution, impossibility of 184 Ohaplih. Fages. 153, 160, 162, 205, 206, 210-214, 306, 314, 324, 331. 155, 156, 206. 13, 142. 104-106, 114, 174, 176, 182, 183. 90, 91, 93, 106, 120, 122, 391. 149, 150, 168. 32, 63, 145. 1-6, 9, 32, 462. 179. 51, 281, 368, 369, 373, 876-379, 428, 429, 436, 458. 3, 4, 22, 28, 29, 38. 151. 14-17, 19, 20, 22, 24, 27-29, 32, 38, 39, 43, 46, 49, 50 n. 1, 51, 55, 58,60,63,67,70,95,99. 70,232,247,287,310-312, 395, 397, 398, 401. 192. 193, 197, 194, 195. 157, 169. 81. 273, 276, 278, 367. 471 ii., 472. 471. 167, 326, 328, 329. 77, 79, 81, 188, 189. 310, 399 and n. 1, 401 and n, 1, 402, 407 and n, 1, 408, 467. : 70,232,247,287,310-312, 395, 397, 398, 401. ■ 397,398,402. 394. 393, 397, 398, 408. 466. 117. Fact, mistake or ignorance of 50 False imprisonment 240 False pretences 305 pretence must be false 306 subject matter 307 85, 86, 88, 90. 151. 11,58,271,818,410,411a 415, 416. 416. implied representations 809 415. DTOBX. 579 Mat. Sections. raise pretences — continued. intent to defraud 310 fraud in both parties 812 delivery with knowledge ; ordinary prudence 313 remoteness of the pretence 315 property obtained 316 differs from larceny 317 Force and violence 168 Forcible entry and detainer 167 what may be entered upon or detained . . . 169 Forgery 829 must be material 330 legal capacity, fictitious name 331 the alteration 332 intent to defraud 334 uttering 335 Government, offences against 13 authority of, justifies crime 60 Guilty participation by injured party, effect of . 25 High seas, jurisdiction on 78 Homicide, justifiable 218 Husband and wife 74 Ignorance of law, specific intent 52 Ignorance or mistake of fact 50 Impossibility of execution 184 Impulse, irresistible 41 Indictments upon statutes 109 Infants, criminal capacity 36 Injured party, effect of guilty participation by . . 25 Injury, accidental 216 Insanity 39 test of 40 emotional 42 moral 43 Intent and act must co-exist 5 presumed from unlawful act 27 constructive 28 specific 32 constructive specific 34 necessity of, a question of interpretation . . 54 general required, when 57 attempt, preparation 188 statute may ignore {see Specific intent) . . 53 Interpretation, necessity of intent a question of . 54 Intoxication, specific intent 47 involuntary 49 Irresistible impulse 41 Chaplin. Faqes. 273-275, 415. 415. 416. 416. 410-414. 472. 471 n., 472. 471. 486, 488, 491-498, 503. 492. 495, 497, 498, 501, 503. 495, 506. 503. 22, 125-127, 131, 507- 509, 511. 6. 151. 142, 145, 146, 148. 28, 51, 151. 193-197. 268. 83, 84. 85, 86, 88, 90. 117. 73. 22. 117. 142, 145, 146, 148. 85. 73. 76, 189. 189, 195. 73. 59, 111, 117. 90, 156, 168. 104-106, 114, 174, 176, 182, 183. 90, 91, 93, 95, 100, 102, 118, 142, 146, 148, 156. 90, 91, 93, 106, 120, 122, 391. 88. 88-90, 100. 140. 86, 88, 93, 95. 8R 78, 79, 189-191. 77. 78. instraments in writing 272 580 INDEX. Mat. CHAPtiK. Sections. Pases. Jurisdiction on high seas 78 28, 61, 161. / 17,20,22,27,28,32,39,43, of United States courts 82 ) 49 and n. 1, 60 and n. 1, I 51,55,88,60,63,95,99. concurrent 83 17, 19, 63, 67, 70. Justifiable homicide 218 193-197. Justification for crime, government authority . . 60 161. Larceny, personal goods 271 238-240, 381. 83, 242, 244, 245 and notes, 246, 247, 312, 316, 346, 350, 361, 364, 865, 429, 484. real estate 273 i 246 n 1°' ' ' wild animals 274 248 and n. 1, 261, 266. conversion into chattels by severance from ) oco oca nan realty and by killing 275 f ^53, 256, 260. ( 88, 244, 245 and notes, value 276 < 316, 361, 364, 365, 429, ( 438. f 240, 267, 268, 316, 352, taking and carrying away 277 5 361, 380, 381, 383, 385, ( 386, 458. ( 267, 268, 270, 314, 316, obtaining of title 278 ^ 321, 323, 326, 356, 358, ( 410. taking of custody merely 279 263, 336. finding lost property 280 217, 219, 280, 832, 333. property left by mistake 281 334. property delivered by mistake 282 220, 229, 279. , . . „„„ { 232, 247, 268, 281, 282, takmg by servant 283 -J g-^Q g-^g ( 216, 290, 291, 293, 296, by bailee 284 J 299-301, 304, 307-309, ( 332, 339, 364. , ,. ,.,. „„, ( 232, 247, 268, 281, 282, temporary delivery upon conditions .... 285 i g'jQ ' ' ' taking by owner 286 273, 277. by wife 287 359,360,417. intent to steal, claim of right 288 83, 84, 111, 263. 183, 263, 266, 268, 269, 277, 282, 335, 337, 338 n., 339, 342, 344, 346, 350, 358, 365. concealment 290 279, 346. lueri causa 291 344-360,352. „„„ ( 267, 268, 273, 276, 278, ownership m \ 366,867,421. from a vessel, etc 293 303, 352. from the person 294 886, 889. from a building 295 137, 386-390. Law, ignorance of, specific intent 52 83, 84. Libel, defined 172 511. malice in 173 512-617. publication of, what 174 527. INDEX. 581 Mat. Chaplih. Sections. Paqes. Libel — continued. privileged communication in 175 Locality in crime 79 Malice 33 express and implied 221 arson 254 malicious mischief 322 aforethought 222 imputed 223 Malicious mischief 822 Manslaughter 226 i mitigating circumstances 227 proYocation 228 unlawful arrest 229 death must be direct result of unlawful act . 280 unlawfulness 281 negligence, carelessness 232 < neglect of duty 233 | self-defence, necessity - 234 proper mode 235 accident 237 prevention of felony 289 Mayhem 217 Misdemeanors 11 no accessories in 72 Misprisions 19 Motive immaterial , 26 Murder 220 degrees of 225 Necessity 68 Negligence, effect of contributory 24 when criminal 30 what is culpable 81 accident 29 carelessness 232 i neglect of duty 233 | Nuisance, defined 178 no prescription for right to maintain . . . 182 public benefit no excuse 182 hindrance to a public right a 179 time and place sometimes decisive of . . . 180 Perjury, defined 147 535. evidence in, amount required ...... 162 536. Piracy 388 28, 30. 524-526. 126, 129. 118, 122. 188. 106, 120, 484, 485. 106, 108, 118, 120, 122. 176, 183, 188. 122, 176, 182, 183. 106, 108, 118, 120, 122. - 101, 106, 115, 173, 175. 193. 175. 175. 174, 175. 165, 167, 168. 104, 106, 108, 164, 165. 100, 101, 106, 115, 116, 165, 173. 101, 106, 115, 116, 165, 173. 193, 194, 197. 193. 103. 194. 109, 482. 6, 7, 8, 109, 482. 69, 492. 189, 141. 95, 102, 114, 174. 184, 188. 190. 194, 195, 198. 149, 150, 168. 105,114-116,174. 100, 114. 105, 115, 116. 100, 101, 106, 115, 172, 173. 101, 106, 115, 116, 165, 173. 64.3. 554. 546-548, 551, 558. 544-549. 663-669. 582 INDEX. Mat, Chaplin. Sections. Pages. Pleading, description 106 273, 276, 278, 367. indictments upon statutes 109 22. Police regulations 55 86, 90, 91, 93. Possession and custod. 299 { 70,232.247,^^,^3^-312, Preparation, attempt, intent 183 140, Principals 69 i Procedure, prosecution by another sovereignty . 119 63, 70. Property, offences against 17 11. defence of 66, 215 157, 159. Provocation 228 175. unlawful arrest 229 174, 175. 131, 133, 135, 137, 138, 460. Rape 241 203. i 70, 72, 137, 367, 440, 445, 452, 453, 455, 461, 462. 359, 417, 438, 442, 446, 458. Beceiving stolen goods 324 ] receiving 325 i when goods cease to be stolen goods ... 326 i ^*I:,/tL ^Jok tVa *^^' ; ( 42o, 42o, 4oD, 4oo. knowledge 327 359, 440, 457, 466-469. evidence 328 434, 469, 470. Robbery ! 245 84. putting in fear 247 167. the taking 248 248,267,268,386. Self-defence 64, 214 193, 197. necessity 234 193, 194, 197. proper mode 235 193. Solicitations 19, 185 79, 104, 139, 141. Sovereignty, prosecution by another 119 63, 70. Specific intent 32 | constructive ^* 1 intoxication 47 78, 79, 189-191. ignorance of law 52 83, 84. Statute, may ignore intent 53 86, 88, 93, 95. indictment upon 109 22. Statutory crimes 3 3, 4, 22, 28, 29, 38. statute may ignore intent 63 86, 88, 93, 95. Statutory breakings 268 474, 476. Suicide 219 79, 104. 90, 91, 93, 95, 100, 102, 118, 142, 146, 148, 156. 90, 91, 93, 106, 120, 122, 391. United States, f 14-17, 19, 20, 22, 24, 27- . . , , . , J 29, 32, 38, 39, 43, 46, crimmal law of 4 S 49, 50 „. i, 51, 55, 58, t 60, 63, 67, 70, 96, 99. { 17, 20, 22, 27, 28, 32, 39, jurisdiction of courts 82 < 43, 49, andn.l, 50 n. 1, ( 51,55,58,60,63,95,99. INDEX. 583 Mat. Ghaplht. Sectiohs. Paoeb. Unlawful act, intent presumed from 27 90, 156, 168. Uttering 335 5 22,125-127,131,607-509, ~- ( 611. Violence 168 472. Wife, as accessory 74 268.