Ofontdl IGaw drifiuil IGibranj Cornell University Library KF 9218.B47 v1 A selection of leading cases in criminal 3 1924 020 139 048 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020139048 110 Washington St., Boston. Mabch 1, 1864. A LIST OF LAW BOOKS, PUBLISHED BT LITTLE, BROWN AND COMPANY, 110 WASHINGTON STREET, BOSTON. Any of the following books will be sent by mail, free of postage, on receipt of the publication price. We invite ike attention of the Profession to our extensive and continually increas- ing stock of Law Books, both Foreign and Domestic, embracing every branch, and Department of Jurisprudence. Catalogues will be sent on application. ABBOTT (Charles, Lord Tenterden). — A Treatise of the Law relative to Merchant Ships and Seamen. The Eighth English Edition, by William Shee. Eighth American Edition. 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Publica judicia ncque per aetiones ordinantur, neqne omuino quidquam simile habent cum ceteris judiciif de quibus locuti sumus, magnaque diversitas est eorum et instituendis et in esercendis. — Justiniani Ihstitutiohis, De PuMicis Judiciis. VOLUME I. BOSTON: LITTLE, BROWN AND COMPANY. 1856. Entered according to Act of Congress, in the year 1856, by Benjamin F. Butler, Edmund H. Bennett, and P. F. Heard, In the Clerk's Office of the District Corfft of the District of Massachusetts. RIVERSIDE, CAMBRIDGE: PRINTED BT H. O. HOUGHTON AND COMPANY. TO THE HONORABLE GEORGE TYLER BIGELOW, LL. D., ONE OF THE JUSTICES OF THE • SUPREME JUDICIAL COURT OF MASSACHUSETTS, THIS YOLUME IS RESPECTFULLY INSCRIBED BY THE AUTHORS. PKEEACE. The selection of important Cases on different branches of the Law, and the elucidation and development of the principles involved in them, in the form of Notes, has become an acceptable method of presenting legal subjects to the Profession. The great value and acknowledged usefulness of Smith's Leading Cases, and the Amer- ican Leading Cases by Messrs. Hare and Wallace, has induced the Authors to attempt to follow in their footsteps ; sed longo intervallo, as they are well aware. This is believed to be the first application of this plan of discussing legal questions, to the Criminal Law. A few subjects, not strictly criminal in their character, such as the Law of Arrests, the Doctrine of Merger of a Civil Injury, etc., may be found in the following pages ; but they are so inti- mately connected with the Criminal Law as not to seem out of place in this work. In preparing the Notes on the Law of Burglary, free use has been made of Wilmot's very excellent Digest of the Law of Burglary, London, 1851. M Several Cases have been reprinted from " Reports of Cases in Criminal Law, argued and determined in all the Courts in England and Ireland," by Cox, London, 1846, to the present time, for the reason that those Reports are not generally accessible to the Profes- sion in the United States. It was originally intended that Mr. Butler should prepare a portion of this volume ; but, after collecting materials for that purpose, his professional engagements prevented him from writing them out. Boston, June, 1856. LIST OF CASES SELECTED. Page Berrian v. The State. Indictment — Figures . . . 500 Broome v. Regina. Indictment — Commencement — " The Jurors for" etc 600 Commonwealth v. Chace. Larceny — Pigeons kept in a Dove- cot with liberty of ingress and egress .... 66 Commonwealth v. Cummings. Same v. McGinnis. Writ of Error — Only for Defendant 429 Commonwealth v. Eastman. Indictment — Pleading — Conspiracy 264 Commonwealth v. Elwell. Indictment — Averment of Knowledge 549 Commonwealths. Grey. Indictment — Pleading — Allegation in the Disjunctive 598 Commonwealth v. Hart. The Pleading of Exceptions and Pro- visos in Statutes 250 Commonwealth v. Marsh. One Defendant — when a Competent Witness for another . 124 Commonwealth v. McKie. Burden of Proof — Reasonable Doubts 34T Commonwealth v. Neal. Feme Covert — Criminal Liability of — Coercion 76 Commonwealth v. Rogers. Insanity — Delusion — Medical Tes- timony 87 Commonwealth v. Wright. Indictment — Pleading — Written In- struments 296 Vlll LIST OF CASES SELECTED. ' Page Ledwith v. Catchpole. Arrest by Officer — Reasonable Suspicion of Felony 158 Moore v. The Commonwealth. Adultery — Indictment — Plead- ing .......... 519 Price v. Seelet. Arrest by Private Persons — Justification — Breach of the Peace .....■• 143 Regina v. Badger. Bail in Criminal Cases — Character of Per- sons offered . . . . ' . . . • • 236 Regina v. Birmingham and Gloucester Railway Company. Cor- porations — Criminal Liability — Nonfeasance . . 127 Regina v. Bond. Larceny — Indictment — Evidence . • 553 Regina v. Boulter. Perjury — Corroborative Evidence . 494 Regina v. Cheafor. Larceny — Pigeons kept in a Dove-cot with liberty of ingress and egress ...... 64 Regina v. Clarke. Rape — Consent — Carnal Connection under circumstances which induce the woman to believe that the man is her husband ......... 232 Regina v. Davis. Indictment — Name of Prosecutor — Rule Idem Sonans 346 Regina v. Duffy. Indictment — Demurrer — Respondeat Ouster — Pinal Judgment ..%.... 326 Regina v. Evans. Felony — Recent Possession — Reasonable Account .......... 363 Regina v. Featherstone. Larceny — Delivery of Money by Wife to Adulterer 199 Regina v. Hill. Evidence — Lunatic — Monomania' . . 414 Regina v. Holmes. Indecent Exposure — Public Place — Ad com- mune nocumentum . . . . . . . 452 Regina v. Ion. Uttering Forged Receipts .... 400 Regina v. Keith. Forgery — Engraving part of a Note — Mean- ing of words " purporting to be part " .... 591 Regina v. Longbottom. Criminal Negligence — Negligence of both Parties 54 LIST OP CASES SELECTED. IX Page Regina v. Lowe. Criminal Negligence — Omission and Commis- sion .......... 49 Regina v. Mears. Conspiracy' — Defilement of Women . . 462 Regina v. Petcherini. Blasphemy — Evidence — Bible Burning 563 Regina v. Radford. Forgery — Uttering Forged Receipts . 397 Regina v. Radley. Indictment — Allegation of Property — Sur- plusage . . . . . . . . . . 574 Regina v. Smith. Indictment — Fraudulent Conveyance . 191 Regina v. Smith. Receiving Stolen Goods — Manual and Con- structive Possession . # 576 Regina v. Stubbs. Evidence — Practice — Conviction on Uncor- roborated Testimony of Accomplice ..... 545 Regina v. The < Great North of England Railway Company. • ' Corporations — Misfeasance — Appearance of . . 134 Regina v. Vodden. Wrong Verdict by Mistake — Correcting the Error — Reasonable Time 547 Regina v. Webb. Indecent Exposure — Public Place — Ad com- mune nocumentum , . 442 ' Regina v. Wiley. Receiving Stolen Q-oods — What amounts to a Receipt — Manual and Constructive Possession . . 582 Regina v. Wilson. Forgery — Filling a Blank . . . 477 Re Strahan, Paul and Bates. Pleading Doubh . . 570 Rex v. Almon. Principal — Criminal Liability of, for the Acts of his Agent 241 Rex v. Cabbage. Larceny — Lucri Causa .... 436 Rex v. Delaval. Conspiracy — Defilement of Women . . 457 Rex v. Gibson. Indictment — Abatement — Respondeat Ouster — Final Judgment ' . 322 Rex v. Hart. Forgery — Filling a Blank .... 468 Rex v . Harrison. Burglary — Breaking .... 524 Rex v. Hodgson. Rape — Evidence — Character of Prosecutrix 228 Rex v. Hull. Criminal Negligence — Manslaughter — Misadven- ture 42 X LIST OF CASES SELECTED. Page Kex v. Jackson. Rape — Consent — Carnal Connection under circumstances which induce the woman to believe that the man is her husband '234 Rex v, M'Kearney. Burglary — Breaking out of a Dwelling- Souse 540 Rex v. Morfit. Larceny — Lucri Causa .... 438 Rex v. Mosley. Indictment for Murder — Pleading — Dimensions of the Wound 58 Rex v. Nichol. Indecent Assault — /Schoolmaster and Pupil 513 Rex v. Russell. Burglary — Breaking .... 525 Rex v. Wheatly. Crimes — Private Injuries — Distinction be- tween 1 Rex v. York. Infants — Criminal Liability of — Confessions 68 Samuel v. Payne. Arrest by Officer — Justification — Ctorge of Felony 157 Simmons v. The Commonwealth. Larceny — Bringing Stolen Property into the State . . .... .212 The King v. Bourne. Sentence — Illegality of — Writ of Error 376 The King v. Ellis. Sentence — Illegality of — Writ of Error 372 The King v. Peace. Indictment — Variance by Proof of tjuuo Per- sons of the same name , 226 The King v. Whiley.* Counterfeit Bills and Coin — Evidence of ■ Chiilty Possession 185 p The People v. Corning. Writ of Error — Only for the Defendant 425 The State v. Berrian. Indictment — Figures . . . 511 The State v. Freeman. Indictment — Need not be certified to be " A true Bill " 202 The State v. Merrick. Larceny — Evidence — Recent Possession 360 The State v. Weed. Arrest by Officer — Voidable Warrant — Justification 164 The United States v. Drew. Drunkenness — Effect of — Crim- inal Intent ■ . 113 The United States v. Wood. Perjury — Corroborative Evidence 482 LIST OF CASES SELECTED. xi Page Weight v. Clements. Indictment — -Pleading — Written Instru- ments 312 White v. Fort. Felony — Merger — Civil Remedy . . 27 Whitakek, v. Wisbet. Conviction of Prisoner, date of — Estoppel' by Record 205 LIST OF CASES CITED. Aaron v. Alexander 155 Abbot of St. Bennett v. Mayor of Norwich 141 Abbott v. Fost 181 Adams v. Barrett 37 v. Carlisle 352 Allard v. Bingham 26 AEen v. Ford 26 v. Gray 180 Alison v. Bank of Virginia 38 Anderson v. Commonwealth' 154 Ann v. State 8 Apothecaries Co. v. Bentley Armstrong v. Timmons Arnold v. Stuvea Attorney-General v. Bowman v. Lockwood ■ v. Parnther v. Radloff t7. Kiddell 356 104,424 184, 185 25 25 111 23, 247 86, 247 ■ v. Siddon and Binns 247 B. Ballew v. Alexander Baldwin v. State Bakcman v. Bose Barge v. Commonwealth Barnes v. Barber Barney v. State Barry v. Butlin Barton v. Sutherland Baynes v. Brewster Beasley v. State Beckwith v. Philby -v. Sydebotham 38 111 231 844, 345 182, 184 512 355 358 152 76 153, 160 107 37 185 204, 339 22 Belknap v. Millekin Bellows v. Shannon Bennett v. State Black v. State Blackburn v. Minter 37 Blassingame v. Glaves 38 Blatcher v. Kemp 184 Bloodgood v. Mohawk and Hudson K. K. Co. - 141 Bluet v. Needs 263 Boardman v. Gore 37, 40 CRIM. CASES. b Boody v. Keating Booth v. Commonwealth 17. Hanley Boston and Worcester Railroad Dana Bowen v. Shapcott Bowditch v. Balchin Boyden v. Hastings Brennan v. People Bristow v. Wright Britain v. State Broad v. Ham Brown v. Commonwealth v. King Broughton v. Jackson Browning v. Budd Brucker v. Fromont Brady v. Davis Bryant v. Jackson Buck ?7. State Bullock v. State Burgess v. Corey v. Commonwealth Burke v. Bell Burnett v. State Burton v. Henson Calcraft v. Gibbs Camp v. State v. Moseley Carle v. Delesdernier Carlisle v. Baker Carlton v. Commonwealth Carter v. State Cartwright v. Cartwright Caudle v. Seymour Chapel v. White Chase v. Fish Cheyaray v. Jenkins Childs v . Bank of Missouri Chinn v. Morris Churchill v. Churchill Cilley v. Cilley City Council v. Payne v. Van Koven Clark v. Lyman v. State 105, Page 36 395 164 v. 40 340, 341 154, 163 227, 228 8 320 455 157 395 355 155, 156 355 249 181 104 394 394 36 204 185 116 152 25 231 180 182 25 394 105 104 182 25 182 181 141 153, 157 182 355 164 84 358 108, 111 XIV LIST OF CASES CITED. Clary v. Clary v. Commonwealth Cook v. Weatherby Cocks v. Purday Coffee v. State Cohen v. Iluskisson Cole v. Fisher Collier v. Simpson Colman v. Anderson Commonwealth v. Adams v. Andrews v. Bailey v. Beckley v. Betton v. Bigelow r- v. Briggs — , v. Calef v. Call v. Carey v. Catlin v. Chapman : v. Churchill v. Clark v. Cousins v. Cullins v. Dana v. Davis v. Dewitt v. Eastman v. Edwards v. Elwell v. Faris v. Field — - v. Gable v. Gillespie v. Giles v. Goddard v. Green v. Griffin — : v. Harmon v. Harrington v. Harman ■ v. Hawkins v. Haynes v. Hearsey ■■ v. Hill v. Holmes v. Horton v. Houghton v. Hulbert — . »v. Hunt ■ *v. James 190, v. Keagy v. Kimball — : v. Kirby v. Knowlton v. Lanigan v. Leach v. Lewis v. Loud v. Maxwell v. McGarrigill v. McKie 118, Page 108 296 68 105 359 152 19 105 182 321 223 320 321 227 204 189 190 190 457 522 163 457 64 231 6 513 224 223 353 296 224 225 295 296 23 190 522 10 235 154 249, 317 296 343 344 8, 57, 73 262 816 7 859 359 394 8 456 14 424 322 394 394 321 552 295, 457 13 72 858 181 895 73 18, 19 79, 87 896 257 551 353, 855 Page Commonwealth v. McKisson 296 v. McPike 5 7 v. Merriam 190 D.Miller ' 189 v. Millard 3 70 v. Montgomery 370 v. Moore 231 v. Morse 6 v. Mosler 102 v. Mosley 576 v. Murphy 231 v. New Bedford Bridge 141 - v. Newell - ii. Nichols - v. Park - v. Parker - v. Perkins ■ v. Pollard - v. Powell - v. Rand ■ v. Reardon - v. Richards - v. Roark 34 246 249 498, 499 321 500 23 223, 224, 225 521 322 185 - v. Rogers 94, 101, 102, 104, 106, 108, 112 - v. Samuel 357 - v. Sankey 16 -v. Searle 15,320,414 - v. Shedd 295, 296 - v. Shattuck 19 - v. Smith 10, 204 - v. Snelling 296, 320 - v. Stevens 320, 321 - v. Speer 15 - v. Squire 262 - v. Steward 528 - v. Stephenson 527 - v. Stearns 189 - v. Stone 189 - v. Stout 553 - v. Strain 552 - v. Sweney 316 - v. Swift Run Gap Turn- pike Co. 142 - v. Tarbox 822 - v. Taylor 18, 19, 320, 321 - v. Thompson 46 - v. Thurlow 358 - v. Tompson 522 - v. Trimmer 80, 530 - v. Tuck 257, 262 - v. Turner 190 -.v. Walden 21 - v. Walters 204 -u.Ward 181,321 - «. Warren 14 - v. Webb 9 - v. Webster 358, 360 -u.Williams 576 -«). Wilson 105, HI, 190, 320 -v. Wing 19 - v, Woodbury 414 LIST OF CASES CITED. XV Page Commonwealth v. Wright 316 o. York 7, 113, 358 — v. Zard 75 Comstock v. Hadlyme 355 Conner v. Commonwealth 182 Cook v. Nethercote 164 Coomes v. Knapp 26 Cooper v. Witham 34, 40 Cornwall v. State 116, 117 Cowles v. Dunbar 157, 160 Coupey v. Henley 151, 163 Coxe v. Wirral 155 Crawford v. State 354 Cramer v. Crambough 355 Cross v. Guthery 38 Crosby v. Leng 35 > Crawninshield v. Crowninshield 355 Crowell v. Merrick 37 Culver v. Haslam 111 Cummings v. State 223 v. Hodgdon 25 D. Dameron v. State Daniels v. Commonwealth Dater v. Troy Turnpike Co. Davis v. Capper v. Clements v. Russell v. State 85 Dawkes v. Coveneigh Delano v. Bartlett Demarest v. Haring Derecourt v. Corbishley Devoe v. Commonwealth Dew v. Clark DeWitt v. Barley Dias v. State Dicken v. Johnson Dickinson v. Barber Doe d. Bainbrigge v. Bainbrigge d. Sutton v. Reagan Dominick v. Eacker Donald v. Wilkie Donahoe v. Shed Doty v. State Drew v. Commonwealth Drury v. Regina Ducher v. State Duckworth v. Johnston Dugdale v. Regina Dunnaway v. State Duncan v. State Dunn v. Commonwealth v. Regina E. 457 383 141 181 182 156, 163 , 86, 360 35,40 352 7 152, 163 262 100 111 64 108 104, 108 107 108 183 184 182, 183 353 383 383 533 181 6 10 8 395 396 Eagleton and Coventry v. Kingston 110 Eanes v. State 161 Eastern Counties Railway Co v. Broom 141 Eastman v. Commonwealth Eaton v. Eliot Edge v. Commonwealth Edwards v. Ferris Eichorn v. Le Maitre Elkin v. Janson Engleman ti. State Entick v. Carrington Evans v. Commonwealth v. Hittich Favrlee v. People Feargus O'Connor's case Fenwick v. Bell Findley v. Pruitt Finch v. State Fisher v. Mc Gin- Fletcher v. Calthrop Florey v. Florey Foster v. Commonwealth v. Tucker Fowler v. State Fox v. Gaunt Freegard v. Barnes Freeman v. People Frere v. Peacocke Friar v. State Frost v. Thomas Page 576 26 l"42 181 340, 341 356, 358 366 180 339 424 389 107 155, 184 511 181 523 111 38, 345 36 457 154 182 97, 98 100 205 185 G. Gardner v. People Garland v. Carlisle 204 386 Gebhart v. Shindle 424 Gentry v. State 414 Gerrish v. Nason 355 Geuing v. State 356 Gibson v. Gibson 108 111 35 360 ' V, XiilHUL Giles v. State 359 Gill v. Scriyens 256 Gillett v. Mason 68 Gimson v. Woodfull 34, fi Goft v. Mitchell 184 Gold v. Bissell 181 Golightly v. Reynolds 35 Goodspeed v. East Haddam Bank 141 Gould v. Crawford 424 Grant v. Moser 152 v. Thompson 104 111 Gray v. Fulsome 26 v. Regina 335 Graffins v. Commonwealth 10 Grafton Bank v. Flanders 35 Green v. Briggs 181 Greensborough v. Uhderhill 354 Greer v. George 351 Grisham v. State 455 Griswold v. Sedgwick 183 Grumon v. Raymond 181 182 183 XVI LIST OP CASES CITED. Gnppy v. Brittlebank Gurney v. Tufts Gurnsey v. Lovell H. Haile v. State Hall v. Hawkins v. Roche v. State v. Suydam Halsted v. Brice Hampton v. State Handcock v. Baker Hannam v. Mockett Hannen v. Edes Hardy v. Murphy Harris v. Shaw v. County of Sullivan Hartford v. Palmer Hartmann v. Commonwealth Harvey v. Towers Hasbrouck v. Weaver Haskill v. Commonwealth Hathorne v. King Hays v. People Hedges v. Chapman Henry v. Lowell Heys v. Heseltine Higgins v. Butcher Hifer v. State Hill v. Bateman v. State v. Wells Hinman v. Taylor Hinson v. State Hirn v. State Hitchcock v. Munger Hix v. Whittemore Hobbs v. Branscomb Hoge v. Fisher Holcomb v. Stimpson Holley v. Mix Holliday v. State Holloway v. Kegina Holtum v. Lotun Hopkins v. Commonwealth v. Crowe Hooper v. State Horwood v. Smith Howell v. Jackson Hoye v. Bush Hughes v. State Humes v. Taber Hunter v. Commonwealth Hurd v. Seeker Hutton v. Balme Hyde v. Chapin Page 156 181 183 122 156 185 512 156 183 371 153 68 355 164 35 26 424 12, 295 356 86 356 108 518 153 181, 184 249 34,40 359 180 16 25 26 457 345 25, 359 105 161 104, 111 26 153, 161 395 383 153 396,414 164 321 35 152 183 368 182 528 26 I. lilies v. Knight Ingle v. Bell 25 23 152 J. Jackson v. Lewis 231 104, 111 v. Van Dusen 104, 111 Jennings v. Commonwealth 394 Johnson v. State 229 Johnstone v. Sutton 156 Jones v. People 354, 372 Josslyn v. Commonwealth 394 K. Kane v. People 142, 394 Kelley v. State 383 Kelly v. State 395,512 Kennedy v. Way 45 Ketland v. The Cassius 25 Kilp'atrick v. People 16, 18 Kincaid v. Howe 228 King v. Dixon 80 v. Fenner 78 v. Gibson 339, 345 v. Hill 391 v. Jarvis 357 v. Jordan 78 v. Mason 392 v. Powell 390 v. Queen 436 v. Simmonds 436 v. Stapleton 83,85 v. Taylor 345 v. Weir 184 v. Wyer 154 King of the Two Sicilies v. Willcox 141 Kinne v. Kinne 104, 111 Kirlin v. Heacock 181 Kite v. Commonwealth ,395 Knot v. Gray 164 Kreger v. Osborn L. Lake v. People 104, 105 184 108, 111 Lane v. Crombie 352 Larned v. Commonwealth 262 Laughlin v. State 229 Lawson v. Buzines 184 Lawton v. Sun Mutual Ins. Co. 118 Lawrence v. Hedger 161 Lazier v. Commonwealth 64 Ledwith v. Catcbpole 160 Lee v. Lee 111 Le Bret v. Papillon 342 Leigh v. Cole 184 Lester v. Pittsford 111 Levy v. Edwards 164 Lewis v. Baird 105 15 357 Little v.> Thompson Livingston v. Kiersted 424 Lock v. Ashton 153 Loomis v. Edgerton 18 Loring v. Aborn 184. 355 LIST OF CASES CITED. XVU Lough v. Willard Low v. Mitchell Lumng v. State Lyman v. White River Bridge Co. Page 182 26 105 141 M. Maeder v. State Mahoney v. Crowley Malton v. Nesbit Mann v. Trabue Manro v. Almeida March v. People Mariner v. Dyer Markham v. Cobb Marsh v. Keating Marston v. Jenness Martin v. Martin Mather v. Clark Mathews v. Biddulph Maund v. Monmouthshire Canal May v. State Mayo v. Wilson MeAllister v. State McBain v. Smith McCallister v. State McCurry v. Hooper McCloughan v. Clayton McDaniels v. State McDonald v. State McGrew v. Cato McKenzie v. Allen McLean v. State McLellan v. Cumberland Bank McQuoid v. People Mead v. Haws Melvin v. Easley v. Fisher Middleton v. Commonwealth v. Holmes Miller v. Grice v. People ». State Mitchell v. Mims Money v. Leach Moore v. Commonwealth v. Watts Morgan v. Rhodes Monarty v. Brooks Morrison v. Clark Co v. Wright Morse v. Crawford v. Pineo Murdock v. Ripley Mure v. Kaye Murray v. Reginam v. State N. Nash v. Primm Neal v. Farmer Neap v. Allen Needham v. Ide 340 26 107 38 34, 154 296 26 35,40 35 26 37 75 154 141 357 161 104 37 57 108 152, 155 359 204 37 157 104 141 383 183 105 183 436 37 182 456 *394 38 183 521 153, 181 35 152 352 184 111 231 184 155 522 223 38 37 241 111 b* Nicholson v. Hardwicke Nixon v. People Nolan v. Mayor of Franklin Nomaque v. People Norris v. State Norton v. Ladd Norwood v. Marrow O. O'Connell v. Regina Ocean Ins. Co. v. Fields Ooton v. People Orbell v. Ward Overshiner v. Commonwealth Page 156 52 ■ 455 204 111 68 104 384 38 383 344 205 Padfield v. Cabell Paine v. Rochester Panton v. Williams Park v. Hopkins Parker v. Commonwealth Pate v. People Patterson v. Kise Patton v. Freeman Pearce v. Atwood Pease v. McAloon Peaslee v. Robbins Peck v. Regina Peer v. Humphrey Pennybaker v. State Pennsylvania v. Fall v. Lovel v. Myers People (The) v. Abbot : — v. Babcock v. Badgeley v. Brigham v. Burke v. Carnal if. Clark : — v. Comstock v. Corning v. Davis v. Gardner v. Girardin v. Holbrook v. Kendall v. Kingsley v. Mather v. McGee u. Miller v. Pine v. Schenck v. Schuyler r— v. Smith v. Rathburn v. Richards . v. Robinson v. Taylor 333, v. Warren v. Winchell 182 199 155 79 394 359 183 38 182 37 104 294, 35 79, 81 120 79 372 230, 231 14 321 414 223 436 436 435 435 74 223 322 436 72 321 82 229, 230 14 101, 104 223 200 17, 18, 19, 22 414 295 116 383, 895, 322 184 395 XV111 LIST OF CASES CITED. Peters v. State 205 Pettingill v. Rideout 38 Phelps v. Riley 249 Philips v. State 229 Phillips v. Trull 149 Pigman v. State 119 Pirtle v. State 117, 121, 122, 123 Piscataqua Bank v. Furnley 38 Poole v. Richardson 111 v. State 394 Potts v. House 105, 355 Poulk v. Slocum 182 Powell v. Milburn 358 v. State 111 Powers v. Russell 352 Pratt v. Hill 181 Priekett v. Gratrex 181 Prime v. Commonwealth 395 Q. Queen v. Bateman 478 v. Foxby 78 v. Goddard 344 v. Ingram and Wife 391 — v. Lord Ashburton 389 v. Millis 386 v. Muscot 498 . v. Rhodes 390 v. Smith 74 v. Tooley 151 v. Williams 79, 80 R. Rambler v. Tryon 111 Randolph v. Commonwealth 6 Rather and Wife v. State 85 Rawlins v. Ellis 184 Reed u.Rice 183 Regina v. Adams 335 v. Addis 17 - v. Alleyne. 436 r- v. Bants 82 . v. Barrett 53 ' v. Barton 96 v. Bateman 478 v. Bird 80 v. Bird and Wife 343 • v. Birmingham and Gloucester 143, 339 294 102, 190 319 82 334, 335 72 100, 102, 104 82 240, 241 190 85 413* 235 Railway Co. ■ v. Blake - v. Bleasdale - v. Boardman - v. Boober • v. Bowen - v. Brimilow ■ v. Brixey - v. Brooks • v. Broome - v. Butler ■ v. Buncombe ■ v. Camplin Page Regina v. Carlisle 294 v. Case 235,517 v. Charretie 320 . v. Chorley 435 v. Clark 201 v. Clay 231 u.Cole 17 v. Cooke 190 v. Coulson 316 v. Courvoisier 370 v. Cranch 105 v. Crowhurst 365, 366 v. Cruste 80, 119 — v. Cruttenden 367 v. l)adson 157 v. Dalloway 45 v. Daniel 16 v. Dibley 365 v. Dicks 85 v. Doody 7,119 v. Dossett 190 v. Downey 185 — v. Downing 383 v. Draddy 83 v. Drake 317 v. Drury 383, 397 v. Duffy 334, 335, 336, 340 v. Edwards 52 — t v. Faderman 334 v. Peargus O'Connor 389 v. Fernall 25 v. Poster 189 v. Frances 106 v. Gallears 68 v. Gardiner 499 v. Godfrey 441 v. Goddard 340, 341 v. Gompertz 294 — — - v. Gooch 225 v. Good 82, 87 v. Gray 336 v. Great North of England Railway Co. 142 v. Green 191 v. Gruncell 441 v. Guttridge 229, 230 v. Haines 52, 58 v. Hall 367 v. Handley 441 v. Hartnett 383 v. Hendy 334 v. Higginson 95 v. Hinley 869 v. Hogan 49, 52 v. Holland 57 v. Holloway 440 v. Holmes 456 v. Houseman 319 v. Hughes 500 v. Inder 819 v. Ingram 81 v. Johnson 539 v. Jones 12. 440 LIST OP CASES CITED. XIX Regina v, Jordan v. Kenrick v. King v. Langher v. Langley v. Layton v. Leigh v. Lewis ■ v. Lowe v. Mabbett v. Madge v. Mansfield v. Marriott v. Martin v. Matthews v. McDonnall v. McGavaran v. McNaughten v. Meredith v. Middleship v. Mitchell v. Mobbs v. Monkhouse v. Moore v. Murphy v. Murray v. Newton v. Nicholas v. Oddy v. Odgers v. Orchard v. Osborne v. Oxford v. Packard v. Page j>. Pargeter v. Parker v. Pate v. Phelps v. Philpot v. Phillips v. Pitts v. Plummer v. Pocock v. Pollard v. Preston v. Price v. Privett v. Prowes v. Purchase v. Radford v. Radley 11. Read v. Renshaw v. Richards v. Roberts v. Robins * v. Rogers v. Rosenberg -^ v. Roubeyard v. Rowlands . v. Rycroft v. Saunders 72 294, 296 294, 296 82 16 95, 108, 111 435 189 51,53 53 224 369 52 235 368 436 515 104 6 53 334 189 119 118 104 45 320 230 190, 191 334, 335 453 229 104, 105 49 413 53 294, 296, 499 96 333, 334, 335 49, 52 72 57 52 53 83 436 436 440 224 333, 335,* 336 ■ 414 576 235 49,52 441 499 231 319 201 457 13, 294 296 234 Regina v. Scott — i v. Serva v. Sharp v. Simmonds v. Sivey v. Smith v. Spenee .- v. Spicer v. Spilling v. Stokes v. Swindall and Osborne v . S v. Tanner v. Taylor v. Thompson. v. Thristle v. Thurborn v. Tollett 142 332, 335 566 v. Touehett v. Tucket v. Turton v. Vann v. Vaughan v. Verrier v. Walker v. Wallace v. Walters — v. Watson v. Webb v. Welch v. Wheatland ' v. Whitehead v. Whitehouse v. Williams v. Williamson v. Woodrow v. Woodward Reniger v. Pogosa Respublica v. Powell v. Teischer 21 52, 339, 366 61 561,562 48 95, 111, 112 56 10 72, 76 45,112, 190, 335 200, 201 17 440 82, 200 99, 104 105 111 49, 53 95, 319 499 76, 163, 164, 229 " 21 52 445 456, 457 413 500 48 294 234, 319, 320- 57 25 87 115 15 18,19 367 45, 51, 52,357 245, 246, 248 224 Rex v. Adams v. Allen v. Almon v. Anderson and others v. Archer 25, 82 v. Aspinwall 230 v. Atkins 16 . v. Austin 7 — - v. Bailey 8, 227 — : — v. Bainham 10 — — v. Bake 16 v. Ball • 189 v. Barker 230, 231 v. Barnet ~ 225 v. Barton 319 v. Bathurst 19 -j — v. Baxter 258 v. Beach 817 v. Bear 317, 435 — — v. Bennett 530 v. BierS 294 v. Birch and Martin 318 v. Birch 318 XX LIST OF CASES CITED. Bird Botwright Bourne Bowen Bower Bowman Bradford Bright Brooks Brown Bryan Bunce Burdett Burgaine Burrough Burton Butler Cabbage Callan Carr Garrol Carter Chandler Channel Cheesman Clark Clarke Cockin Codrington Cohen Combrune Conner Coogan Corden County Crevy Cross Curvan Davis Dempsey Dewhurst Dodd Dove Downie and Milne Duffield Duke Dunn Dunnage Earl of Devon Earnshaw Edsall Edwards Eldershaw Ellis Esop Farrington Forbes Ford Fowle Friend Fuller Gibson 13, Page 527 13 384 25 12 370 10 163 67 10, 544 11 553 370 13 316 43 7 367 441 529 43 122, 123 i 317 184 12, 13 49,52 200 229,230 366 13 435 12 49 341 523 225 436 79 163 435, 529 394 368 245 257 369 12 395 317 12 341 263 318 225, 240, 241 72 190, 371 8 7 190 163 294 10,52 6 340, 342 Gilchrist Gill Gillet Goldstein Goodhall Green Grindley Groombridge Grout Gutch Halloway Hamilton Hammond Harris Hart Hassal Haynes* Hazv Heath Hewlett Hickman Higgins Hodgson Hood Hough Howell _ Hughes* Hunt Hunter Hurrell Hyam Jackson Jarvis Johnson Jones Jukes Knight Knill Lady Lawly Lara LawlSy Lawrence Lewis Lloyd Long Lyon Maddock Mann Marriott Marshall Martin Mason Matters May Mayhew MeKechnie. an Meakin Medley Millard Miller Morfit Morphes Morris Page 316,318 7, 294, 371 16 318 12 51, 52 122, 123 72 44 245, 248, 249 225 296 79 7, 412, 500 317 86 13 357 '6, 368 57 7 230 183 189 65 84 153 319 78 527 12, 234, 235 259, 263, 264, 357 340, 341 318 551 44, 8f, 85, 86 500 7 12 553 529, 544 13, 528 9,316 47 316 13 435 357 262 230, 819 316 260 317 499 d Tolmie 371 116, 120 16* 19a 224, 225 441 154 84, 576 LIST OF CASES CITED. XXI . Mosley . Mudie . Myddleton . Nehuff . Nicholson . Nisbett . Nutt . Offord . Osborn . Owens .Page Paine Parkin Partridge Peace . Pearce . Peas Pemberton , Penny Pinkney Phillips Pollock Powell Pratten Price Pywell Reading Reeves Reynell Reynolds Richards Richardson Rickman Ridley Rigmaidon Roberts Robinson Rogers Rosin ski Russell Ryan Sargeani Saunders Scofield Searle. Searing Senior Seward Shakespeare Shelderton Shukard Simn^nds Simpson Smith Sparling Spiller Spragg Spriggs Squire Stewart Stone Stonehouse Storr Page Page 63 Rex v. Sullivan 44 499 v. Sutton 6, 72 551 v. Taverner 189 10 v. Taylor 78, 340 11 v. Testick 319 189 v. Timmins ' 44 245, 248 v. Thomas ne, ii9 94, 104, 105 v. Thompson 163, 225 12 v. Tolfree 200 74 v. Tomlinson 63 235 v. Trafford 141 530 v. Turner 8, 63, 356 224 v. Twyning 354 367 v. Upchurch 75 227 v. Van Butchell 46 20, 258 v. Vandercomb and Abbott 223 v. Vane 436 259 v. Ville of Hornsea 142 16 v. Voke 190 11 v. Walker 57 7, 456. v. "Walter 247 424 v. Waters 58 316, 392 v. Watson 104,372 260, 261 v. Wheatly 12, 13 81 v. Wheeldon 526, 542 13' v. Wilcox 319 318 v. Wild 75 318 v. Willis 82 435 v. Wilson 19 103 v. Wright 106 9 v. Yates 499 284 Rice v. State 47 •370 Ripley v. Miller 359 10 Roberts v. State 100, 104 44,45 Robie v. McNeice 26 190 Robinson v. Culp 38 258, 522, 528 v. Dana 26,424 - 357 v. Swett 26 516, 517 Rodman v. Harcourt 181 529, 544 Rodwell v. Redge 358 235 Rohan v. Sawin 154, 161, 163 78 Ross v. State 333 53 Russell v. Commonwealth 395 7 8 182 ') ° 105 1 "" " Urn jL.LU.UUt1. I LI v. Shuster 157 68 i 47 296 S. 342 142 Samuel v'. Payne 153,160 .412 Sanford v. Nichols 183 225 Sartorius v. State 366 47 Savacool v. Boughton 181, 182 189, 527 Sawyer v. Spofford 352 357 351 (/. v ctuguctu 47 Schaller v. State 121 296 Schmidt v. State 356 528 „. "XT "V TT«t/\« r*/\ 359 10, 52 ' — Or J.'l. X* LJ1-1IUU \J\J* Scott v. Ely 183 6 Sharrock v. Hannemer 163 263, 357 Shaw v. State 394 16 Shearer v. State 356 16 Shell v. State 20, 23 LIST OP CASES CITED. Shepherd v. Commonwealth 383 State (The) v. Cochran 359 Shergold v. Holloway 180, 181 v. Coe 204 Shields v. Yonge 154 v. Collins 205 Short v. State 359 v. Connolly • 394 Simmons v. State 321 v. Cooper 154 Simpson v. State 223 v. Council 20, 23 Smith v. Boucher 181, 182 v. Crank 64 TT ] 25 v. Creighton 204 ~—~~~ v. iiayuen v. Herman 162 v. Crowell 356 356 ?j Onrtiq 182, 185 v. Jefferies 113 v. Davidson 204, 394 x • .. 26 , j) T)p TTnrt: 435 v. Moore 255, 257 v. Denton 436 35 38 v Dp Wolf 424 Snyder v. Nations 424 v. Dickins 511 Somervell v. Hunt 182 v. Doherity 75 Son v. People 395 v. Douglass 224 Sparks v. Commonwealth 204 v. Drake 182 Spears v. Forrest 26, 231 v. Elkms 204 Sperry v. Wiloox 855 v. Ellis 223 Spieres v. Parker 256 v. Farnswourth 16 Spratt v. State 204 v. Flowers 17 State (The) u/Aaron 75 v. Floyd 372 v. Adams 368, 371 v. Fort 19 v. Anderson 435 v. Foster 356 v. Arnold 76 v. Gilbej* v. Goin ■ 512 v. Avery 7 71 v. Baker 57 v. Grant 227 v. Baldwin 9 v. Great Works Milling and v. Barker 257, 258 Manuf. Co. 142 v. Barton 191 v. Guild 76 v. Bartlett 223 v. Gustin 316 v. Batchelder 19 v. Haddock 512 v. Bean 317 v. Hand 436 v. Beeler 414 v. Handy 74, 321 v. Bennett 354 367,395 — — v. Harvey 80 v. Bentz 80 v. Hawkins 441 v. Bolkom 576 v. Hayward 498 v. Bonney 316,321 v. Helmes 21, 22 v. Boon 528 v. Henry 537 v. Bostiek 76 v. Henderson 320 v. Boyden 154 v. He'wett , 295 v. Brewster 372 v. Hinton 522 v. Briggs 19, 22 v. Hitchcock 436 v. Brinyea 108 v. Hodgeden 512 v. Brown 223 435, 553 v. Hoit 52 v Brunson . 154 v. Jackson 21 v. Buchanan 295 v. Jefferson 231 v. Bullock 120 o. J. H. 182 v. Burnham 295 v. John 116,117 v. Burris 435, 436 j v. Jones 372,435 v. Burroughs 23 v. Justice a v. Kanouse 14 v. Cagle and Boling v. Calhoon . 455 435 204, 205 v. Keyes 7 v. Caldwell 185 v. Kirby 185 • ' v. Campbell 22 v. Knight 223 v. Carpenter ' 7,553 v. Lane . 5U v. Carr 320 v. Latham 21 r v. Caswell 182 v. Leach 181 v. Chandler 205 v. Mahon 184 v. Chitty 296 v. Mann 182 v. Churchill 356 v. Marler 112, 363 v. Clark 372 v. Martin 436 LIST OF CASES CITED. XXU1 Page State (The) v. Mc Mister 189 v. McCants 120 v. McDonald 181, 183 v. McLeran 15, 16 v. McNally 182 — — v. Mertens 204 v. Merrick 354, 359 v. Middleton 15 v.Mills 17 -v. Millard 457 v. Miller 394 v. Molier 499 v. Moore 455 v. Morris and Essex R R. Co. 142 v. Morrison 356 v. Moses 63 v. Murphy 68 v. Nelson 83, 87 v. Newman 359 v. Noyes 154, 295 v. Owen 63 ' v. Palmer 260 v. Parkerson , 80 — — v. Parker 321 v. Patillo 15 v. Penny 6 v. Phipps 1 7 v. Pierce 21 v. Potts 321 /cRaiford 512 v. Ray 1 7 v. Reed 512 v. Rickey 295 = v. Riley 435 v. Ripley 295, 296 v. Roberts 295 v. Robinson v 20 tt. Roper 455 v. Scott 20 v. Seamons 512 v. Seay 223 v. Shaw 333 v. Shepard 235 v. Simpson 20, 576 v. Smith _ 8, 23, 231, 395, 512 v. Solomons 436 v. Somerville 224 v. Sotherlen 17 v. Spencer 96, 102, 104, 112 v. Squire 204 u.Stark 111,112 v. Stalcup 184 : v. Stedman 205 v. Stroll 15 v. Taylor 435 v. Thompson 1 21, 359 v. Thurstin 521 v. Town : 358 v. Tuell* 183 v. Turner 116, 358 v. 1 witty 316 — r- v. Vaughn 182 v. Vittum 227 State (The) v. Wallace ■ v. Walker • v. Weaver v. Webster v. Weed v. Weston v. Wheeler v. Whittier v. Wilkins v. Williams v. Wilson v. Wolff v. Woodward v. Worley v. Wright Stephen v. The State Stephens v. State v. Wilkins 14, 16, Stebbing v. Spicer Steel v. Smith Stetson v. Packer Stevens v. Commonwealth v. Midland Counties Stoddard v. Tarbell Stocken v. Carter Stone v. Marsh v. State Stonehouse v. Elliott Story v. Hammond Stradling v. Styles Sugg v. Pool Sumner v. State Sutton v. Johnstone Swaim v. Stafford Swallow v. State Swan v. State Sydserff v. Regina Tacket v. State Tarlton v. Fisher Taylor v. State v. Strong T. Teel v. Fonda Thomas v. Russell v. State Thompson v. Fellows Thornton v. Appelton v. Royal Exchange Assur- ance Co. 191 16, 19 317 204 182, 184 372 20, 22 357 339 372 526, 528, 531 372 356 182 435 229 316 181 227 260, 261 185 383 R. R. Co. 141 183 164 35 ■ 64, 394 153 38 347 155, 157 359, 360 156 157 i' 353 120, 121, 122 294 182 182, 183 23 163 260 157 333 182 104 Tibbs v. Smith Timothy v. Simpson Timson v. Moulton Tourtellot v. Rosebrook Tracy v. Williams Tubbs v. Tukev Tuell v. Wrink" U. United States v. Britten : v. Clarke v. Drew v.- Forbes 108 08 149 858 352 180, 181 185 183 321 118 115 115 XXIV LIST OF CASES CITED. United States v. Freeman — v. Gibert ■ v. Hart ■ v. Henman ■ v. Maunier ■ v. Henry Mo Clare 53 436 164 317 63 353 ■v. MeGlue 105,111,118 ■ v. Mingo 359 ■ v. Mitchell 414 • v. Rondenbush 119,189 - v. Sharp 104 - v. Smith 259 • v. Warner 5 7 ■ v. Webber 25 ■ v. Wood 499 V. Vance v. Commonwealth 104 Vavasour v. Ormond 256, 260, 261 W. Wakely v. Hart 154 Walker v. State 26 Wallis v. Mease 68 Warren v. State 68, 367 Wasson v. Canfield 155,. 156, 157 Watson v. Watson 183 Waw-kon-chaw-neck-kaw v. United States 204 Wayner v. Bill 82 Webster v. Commonwealth 383 i'. Watts 152 Webber v. Gay. 183 Wedge v. Berkeley 156 Weierback v.Trone 14 Wells v. Jackson 183 Welch v. Scott 182 Werfel v. Commonwealth 394 West v. Baxendale 155 v. State 394 Wheat v. State 356 Wheeler v. Alderson 111 and Batsford v. Alderson 110 v. Whiting 149, 152 White v. Edmunds 164 v. Spettigue 35, 37, 40 Whiteman v. Wilmington K. K. Co. 141 183 333 181 383, 396 183 25 152, 155 358 257 72 25 157 184 156 156 359 111 205 498 152 76 184, 185 312, 317 184 296 Whitworth v. Clifton Wickwire v. State Wilcox v. Smith Wilde v. Commonwealth Wilks v. Lorck, Williams v. Campbell _ v. Croswell — v. East India Co. v. Higham Turnpike Williamson v. State Wilbur v. Crane Wills v. Noyes Wilmarth v. Burt 4— is. Mountford Winebiddle v. Porterfield Winter v. State Wogan v. Small Woodsides v. State Woodbeck v. Keller Wooding v. Oxley Word v. Commonwealth Wright v. Court ■ v. Clements v. Keith v. Regina Y. Young v. The King Z. Zenobio v. Axtell 392 316 LEADING CRIMINAL CASES. Rex v. Wheatly. 1 February 12, 1761. Crimes — Private Injuries — Distinction between. An offence to be indictable, must be one that tends to injure the public. Defrauding one person only, 'without the use of false weights, measures, or tokens, and without any con- spiracy, is, at common law, only a civil injury, and not indictable. Mr. Norton, for the prosecutor, showed cause why judgment should not be arrested ; a rule for that purpose having been obtained, upon a motion made by Mr. Morton on Monday, 26th January last, in arrest of judgment upon this indictment for knowingly selling amber-beer short of the due and just measure, (whereof the defend- ant had been convicted.) The charge in the indictment was, " That Thomas Wheatly, late of the parish of St. Luke, in the county of Middlesex, brewer, being a person of evil name and fame, and of dishonest conversation, and devising and intending to deceive and defraud one Richard Webb of his moneys, on, &c, at &c, falsely, fraudulently, and deceitfully did sell and deliver, and cause to be sold and delivered, to the said Richard Webb, sixteen gallons, and no more, of a certain malt liquor commonly called amber, for and as eighteen gallons of the same liquor; which said liquor, so as afore- said sold and delivered, did then and there want two gallons of the due and just measure of eighteen gallons, for which the syne was sold and delivered as aforesaid ; (the said Thomas Wheatly then and ther^, well knowing the same liquor so by him sold and deliv- ered to want two gallons of the due and just measure as aforesaid ;) and he the said Thomas Wheatly did receive of the said Richard Webb the sum of fifteen shillings, &c, for eighteen gallons, &c, 1 2 Burrow, 1125 ; 1 William Blackstone, 273. 1 LEADING CEIMINAL CASES. Crimes — Private Injuries — Distinction between. pretended to have been sold and delivered, &c., although there was only sixteen gallons so as aforesaid delivered ; and he the said Thomas Wheatly, him the said Richard Webb of two gallons of, &c., fraudulently and unlawfully did deceive and defraud ; to the great damage and fraud of the said Richard Webb, to the evil example of others in the like case offending, and against the peace of our sovereign lord the king, his crown and dignity." Mr. Morton and Mr. Yates, who were of counsel for the defendant, (to arrest the judgment,) objected that the fact charged was nothing more than a mere breach of a civil contract; not an indictable offence. To prove this, they cited Rex v. Combrtm, P. 1751, 24 G. 2, B. R., which was exactly and punctually the same case as the present, only mutatis mutandis. And Rex v. Driffield, Tr. 1754, 27, 28 G. 2, B. R. S. P. ; — an indictment for a cheat, in selling coals as and for two bushels, whereas it was a peck short of that measure. There the indictment was quashed on motion. Rex v. Hannah Heath, — an indictment for selling and delivering 17 gallons 3 quarts and I pint of geneva, (and the like of brandy,) as and for a greater quantity, was quashed on motion. In 1 Salk. 151, Nehuffs, case, P. 4 Ann. B. R., a certiorari was granted to remove the indictment from the Old Bailey ; because it was not a matter criminal, — it was "borrowing 600/. and promising to send a pledge of fine cloth and gold dust, and sending only some coarse cloth and no gold dust." In Tremaine, 1 Tremaine's Pleas of the Crown, pp. 85 to 111, title Indictment for Cheats, all of them either lay a conspiracy, or show something amounting to a false token. A mere civil wrong will not support an indictment. And here is no criminal charge ; it is not alleged, " that he used false measures." The prosecutor should have examined and seen that it was the right and just quantity. Mr. Norton, pro rege, offered the following reasons why the judg- ment should not be arrested. The defendant has been convicted of the fact. He may bring a writ of error, if the indictment is errone- ous. This is an indictable offence ; 't is a cheat, a public fraud, in the course of his trade : he is stated to be a brewer. There is a dis- tinction between private frauds, and frauds in the course of trade. The same fact may be a ground for a private action, and for an in- dictmenJLtoo. None of the cited cases were after verdict. It might here (foraught that appears to the contrary,) have been proved, "that he sold this less quantity by false measure ; " and every thing shall be presumed in favor of a verdict. And here is a false presence, at the least, and it appeared upon the trial to be a very foul case. The counsel for the defendant, in reply, said that nothing can be intended or presumed, in a criminal case, but secundum allegata et probata; it might happen without his own personal knowledge. And LEADING CEIMINAL CASES. Crimes — Private Injuries — Distinction between. they denied any distinction between this being done privately, arid its being done in the course of trade. Lord Mansfield. The question is, whether the fact here alleged be an indictable crime or not. The fact alleged is — (Then his lordship stated the charge, ante, 2 Durnford & East, 584 ; Croke, James, 19 ; 1 Lord Raymond, 2, verbatim.) The argument that has been urged by the prosecutor's counsel, from the present cases coming before the court after a verdict, and the cases cited being only of quashing upon motion, before any ver- dict, really turns the other way ; because the court may use a discre- tion, " whether it be right to quash upon motion, or put the defendant to demur ; " but after verdict, they are obliged to arrest the judgment if they see the charge to be insufficient. And in a criminal charge, there is no latitude of intention, to include any thing more than is charged ; the charge must be explicit enough to support itself. Here, the fa" is allowed, but the consequence is denied; the objection is, that the fact is not an offence indictable, though acknowledged to be true as charged. And that the fact here charged should not be con- sidered as an indictable offence, but left to a civil remedy by an ac- tion, is reasonable and right in the nature of the' thing ; because it is only an inconvenience and injury to a private person, arising from that private person's own negligence and carelessness in not measur- ing the liquor, upon receiving it, to see whether it held out the just measure or not. The offence that is indictable must be such a one as affects the public. As if a man uses false weights and measures, and sells by them to all or to many of his customers, or uses them in the general course of his dealing; so, if a man defrauds another, under false tokens. For these are deceptions that common care and prudence are not sufficient to guard against. So, if there be a conspiracy to cheat; for ordinary care and caution is no guard against this. Those cases are much more than mere private injuries; they are public offences. But here, it is a mere private imposition or deception ; no false weights or measures are used, no false tokens given, no con- spiracy ; only an imposition upon the person he was dealing with, in delivering him a le$ quantity instead of a greater ; which the other carelessly accepted. 'Tis only a non-performance of his contract, for which non-performance he may bring his action. The selling an unsound horse, as and for a sound one, is not indictable ; the buyer should be more upon his guard. The several cases cited are alone sufficient to prove, that the offence here charged is not an indictable offence. But, besides these, my brother Denison informs me of another case, that has not been men- LEADING CEIMINAL CASES. Crimes — Private Injuries — Distinction between. tioned at the bar. It was M. 6 G. 1, B. R., Rex v. Wilders, a brewer; he was indicted for a cheat, in sending in, to Mr. Hicks, an ale-house keeper, so many vessels of ale marked as containing such a measure, and writing a letter to Mr. Hicks, assuring him that they did contain that measure ; — when in fact they did not contain such measure, but so much less, &c. This indictment was quashed on argument, upon a motion ; which is a stronger case thail the present. Therefore the law is clearly established and settled ; and I think on right grounds ; but on whatever grounds it might have been originally established, yet it ought to be adhered to, after it is established and settled. Therefore, (though I may be sorry for it in the present case, as cir- cumstanced,) the judgment must be arrested. Mr. Justice Denison concurred with his lordship. This is nothing more than an action, upon the case turned into an indictment. 'T is a private breach of contract. And if this were to be allowed of, it would alter the course of the law, by maMIng the injured person a witness upon the indictment, which he could not be (for himself) in an action. Here are no false weights, nor false meas- ures ; or any false token at all ; nor any conspiracy. In the case of The Queen v. Maccarty et al. 6 Modern, 301 ; 2 Lord Raymond, 1179, there were false tokens, or what was considered as such. In the case of The Queen v. Jones, 1 Salkeld, 379, 2 Lord Raymond, 1013, and 6 Modern, 105, the defendant Had received 20Z. pretending to be sent by one who did not send him. Et per Our. " It is not indictable, unless he came with false tokens ; we are not to indict one man for making a fool of another ; let him bring his action." If there be false tokens, or a conspiracy, it is another case. The Queen v. Maccarty, 6 Modern, 302, was a conspiracy, as well.as false tokens. Rex v. Wilders was a much stronger case than this ; and was well considered. That was an imposition in the course of his trade ; and the man had marked the vessels as containing more gallons than they did really contain, and had written a letter to Mr. Hicks attesting that they did so. But the present case is no more than a mere breach of contract; he has not delivered the quantity which he undertook to deliver. The court use a discretion in quashing indictments on motion; but they are obliged to arrest judgmenj|when the matter is not indictable. And this matter is not indictable; therefore the judgment ought to be arrested. Mr. Justice Foster. We are obliged to follow settled and estab- lished rules already fixed by former determinations in cases of the same kind. The case of Rex v. Wilders was a strong case; (too strong, perhaps, for there were false tokens ; the vessels were marked as containing a greater quantity than they really did.) LEADING CRIMINAL CASES. Crimes — Private Injuries — Distinction between. Mr. Justice Wilmot concurred. This matter has been fully settled and established, and upon a reasonable foot. The true distinction that ought to be attended to in all cases of this kind, and which will solve them all, is this — that in such impositions or deceits, where common prudence, may guard persons against the suffering from them, the offence is. not indictable, but the party is left to his civil remedy for the redress of the injury that has been done him ; but where false weights and measures are used, or false tokens produced, or such methods taken tto cheat and deceive, as people cannot, by any ordinary care or prudence be guarded against, there it is an, offence indictable. In the* Case of Rex v. Pinkney, P. 6 G. 2 B. R. ' upon an indictment " for selling a sack of corn (at Rippon market) " which he falsely affirmed to contain a Winchester bushel, ubi revera et in facto plurimum deficiebat,Sfc." the indictment was quashed upon motion. In the case now before us, the prosecutor might have measured the liquor, before he" accepted it : and it was his own indolence and neg- ligence if he did not. Therefore common prudence might have guarded him against suffering any inconvenience by the defendant's offering him less than he had contracted for. This was the case of Rex v. Pinkney; and it was there .said, that if a shopkeeper who deals in cloth, pretends to sell ten yards of cloth, but Instead of ten yards bought of him, delivers only six, yet the buyer cannot indict him for delivering only six ; because he might have measured it, and seen whether it held out as it ought to do or not. In this case of Rex v.. Pinkney, and also in that case of Rex v. Combrun, a case of Rex v. Nicholson, at the Sittings before Lord Raymond after Mich- aelmas term, 4 G. 2, was mentioned ; which was an indictment for selling six chaldron of coals, which ought to contain 36 bushels each, and delivering six bushels short : Lord Raymond was so clear in it, that he ordered the defendant to be acquitted. Per Our. unanimously, the judgment must be arrested. The definition of a crime, as given by embraces statutory as well as common Blackstone and other elementary writers, law offences, and as we propose now to comprises all crimes, whether existing and treat of crimes at common law, strictly so recoonized as such at common law, or called, we suggest as introductory thereto, whether created wholly by statute. Black- the following more limited definition, viz. stone's definition, familiar to all, is— "An — At common law, a crime is an act done act committed, or omitted, in violation of a with criminal intent, to the imjury of the public law either forbidding or commanding public. it." The same words are used by Pro- I. There must be some act done. An feasor Greenleaf, in 3 Greenleaf, Ev. § 1. intent to commit a crime is not indictable. Other elementary writers have given sub- Lord Kenyon declared, in 7 Term K. stantially the same definition. But as this 514, it was a principle of natural justice 1* LEADING CEIMINAL CASES. Crimes — Private Injuries — Distinction between. and of our law, that the intent and the act must both concur to constitute a crime. In Rex v. Heath, Russell & Ryan, C. C. 184, the defendant was indicted for hav- ing in his possession certain counterfeit coin, knowing it to be counterfeit, with in- tent to pass the same as good. All the judges, in Trinity term, 1810, considered the case, and the majority were of opinion that there was no act done, simply by hav- ing the coin in his possession, although he knew it to be counterfeit, and that an in- tent without an act was not a misdemeanor. They also considered Sex v. Sutton, 2 Strange, 1074, as untenable. Four years afterwards the same point was raised in Rex v. Stewart, Russell & Ryan, C. C. 288, and was reserved for the opinion of the judges. They were unanimously of opin- ion that this was not an offence, and judg- ment was arrested. The doctrine of these cases was also expressly adopted in the late case of Dugdale v. Regina, 16 Eng. Law and Eq. R. 380 ; 1 Pearce, C. C. 64. In this case A was indicted for unlawfully and knowingly preserving and keeping in his possession indecent and obscene prints and libels, with intent and purpose to pub- lish and disseminate them. This was held not to be a crime, since the prints might have been innocently procured, and the, intent to publish them may not have been enter- tained until afterwards ; and entertaining the intent was not an act, and therefore not the commencement of a misdemeanor. Commonwealth v. Morse, 2 Massachusetts, 138, illustrates the same principle. There the defendant was charged with having in his possession certain forged notes on a bank which he knew had no existence, " with intent falsely, fraudulently, and de- ceitfully to utter and pass the same as true and genuine notes of a genuine bank." To this • indictment he demurred, and the court said, " The allegations amount only to an intention to- cheat, which at common law is not indictable." The same decision was made in The State v. Penny, 1 Caro- lina Law Repository, 517. On the same principle Regina v. Mere- dith, 8 Carrington & Payne, 589, was de- cided. The defendant was indicted for an assault with intent to commit a rape. Ab- inger, Baron, said : " I think an attempt to commit a misdemeanor is not indictable, unless there be some illegal act done ; and I think that taking any step towards the commission of a misdemeanor, not by an illegal act, would not be sufficient." On this principle an indictment for an attempt to commit any crime must aver, and the prosecutor must prove, some specific act in its nature constituting such an attempt ; it is not sufficient merely to aver that the defendant " did feloniously attempt to kill, etc." Randolph v. The Commonwealth, 6 Sergeant & Rawl'e, 398. Commonwealth v. Clark, 6 Grattan, 675. Cases may, and probably do differ, as to what is a sufficient overt act to constitute the crime; but all decisions, ancient and modern, recognize the principle, that a criminal intent alone, unaccompanied by any overt act, is not punishable by the common law. We say cases may and do differ in their application of the principle, and may sometimes be in direct conflict with each other, upon the proper effect of some particular conduct. Thus in Rex v. Sutton, 2 Strange, 1074, more fully re- ported in Cases temp. Hardwicke, 370, it was thought that having instruments for counterfeiting coin in one's possession with intention to coin money and to pass it as genuine, was a sufficient act to be in- dictable, and the same is laid down as law in 3 Greenleaf, Ev. § 2. It may be that the decision in Strange was based upon stat. 8 & 9 Will. 3, ch. 25, which is cited in 2 William Blackstone, R. 807, and was not a decision at common law ; but whether it be so or not, the modern cases have established a different doctrine. But all agree that procuring counterfeit coin with such intent is an act indictable. Rex v. Fuller, Russell & Ry- an, C. C. 308 ; Dugdale v. Regina, 16 Eng. Law and Eq. R. 380 ; 1 Pearce, C. C. 64. It may not be unnecessary to add, how ever, that an act, to be criminal, need not be successful, for an attempt to commit a crime is no less a crime because the object was not accomplished. Thus in Rex v. LEADING CRIMINAL CASES. Crimes — Private Injuries — Distinction between. Scqfield, Caldecott, 397, it was held that attempting to set fire to a building, the firing of which was considered a misde- meanor, was itself, also, a misdemeanor. So, words alone may be a sufficient act to be criminal ; as, to solicit a servant to steal his master's goods. Rex v. Higgins, 2 East, 5. So attempting to bribe a privy- counsellor to procure an office for an ap- plicant ; Rex v. Vaughan, 4 Burrow, 2494 ; attempting to suborn one to commit per- jury, or to absent himself from a public prosecution, when summoned as a witness ; The State v. Keyes, 8 Vermont, 57; Rex v. Lady Lawly, Fitzgibbons, 263; The State v. Carpenter, 20 Vermont, 9 ; at- tempting to commit suicide ; Regina y. Doody, 6 Cox, C. C. 463 ; soliciting an- other to commit murder ; Demarest v. Har- ing, 6 Cowen, 76, adultery, The State v. Avery, 7 Connecticut, 26 7, or any other mis- demeanor, Commonwealth v. Harrington, 3 Pickering, 26 ; Rex v. Butler, 6 Carrington & Payne, 368 ; Rex v. Harris, 6 Carrington & Payne, 129 ; whether the crime at- tempted be a misdemeanor by statute, or at common law; Rex v. Austin, 1 Carring- ton & Payne, 796; Rex v. Phillips, 6 East, 464 ; are each and all indictable at common law, although the crime which was solicited or attempted to be procured was never in fact completed. This criminal intent also need not al- ways be proved as a separate and distinct fact, or by separate and different evidence from that which proves the corpus delicti, for the criminal intent may be and gener- ally is and should be inferred from the commission of the wrongful act. Com- monwealth v. York, 9 Metcalf, 93 ; Rex v. Farrington, Russell & Ryan, C. C. 207. Neither in cases of injuries produced by negligence, is it necessary to prove any positive, actual intent to commit the crime, for the evil intent is to be inferred from the wanton negligence and general disre- gard of others' rights. But this will form the subject of a subsequent note. II. The act done must be done with a criminal intent. Actus non facit reum nisi mens sit rea. The cases of infants and lunatics are familiar illustrations of this principle. Cases of mistake, and accident, also fur- nish some better examples. Thus Foster, in his Crown Law tells us of a case which came before him. Upon a Sunday morn- ing, a man and his wife went a mile or two from home with some neighbors, to take a dinner at the house of their com- mon friend. He carried his gun with him, hoping to meet with some diversion by the way ; but before he went to dinner he discharged it and set it up in a private place in his friend's house. After dinner he went to church; and in the evening, returned home with his wife and neigh- bors, bringing his gun with him, which was carried into the room where his wife was, she having brought it part of the way. He, taking it up, touched the trigger; and the gun went off and killed .his wife, whom he dearly loved. It came out in evidence, that, while the man was at church, a person belonging to the family privately took the gun, charged it, and went after some game; but, before the service at church was ended, returned it, loaded, to the place whence he took it, and where the defendant, who was igno- rant of all that had passed, found it, to all appearance, as he had left it. " I did not inquire," says Mr. J. Foster, " whether the poor man had examined the gun before he carried it home ; but being of opinion, upon the whole evidence, that he had rea- sonable grounds to believe that it was not loaded, I directed the jury, that if they were of the same opinion, they should ac- quit hjm, and he was acquitted." Foster, 265. So, in Rex v. Gill, 1 Strange, 191, the defendant was indicted for throwing down skins in a yard which was a public way, which put out another's eye. On the evi- dence, it appeared that the wind took the skin and blew it out of the way, and so the damage happened. The chief justice remembered the case of the hoy, 1 Strange, 128, and that in Hobart^ 184, where, in exercising, one soldier wounded another, and a case in the Year-Book, of a man lopping a tree, where the bough was blown at a distance and killed a man. LEADING CRIMINAL CASES. Crimes — Private Injuries — Distinction between. And in the principal case the defendants were acquitted. And in a late case in America, it was said to be a sacred principle of criminal jurisprudence, that the intention to com- mit the crime is of the essence of the crime, and to hold a man criminally re- sponsible for an act, of the actual commis- sion of which he was at the time ignorant, would be intolerable -tyranny. See Dun- can v. The State,. 7 Humphreys, 150. That was an indictment under a statute of Tennessee, against the captain of a steam- boat, for unlawfully carrying away a slave. Th,e evidence was that the slave secreted himself on the defendant's boat, without his knowledge, and was thus transported from his master. The defendant being found guilty below,' appealed, and the judgment was arrested, as the indictment did not charge that the defendant received the slave, and the evidence did not prove that he intentionally carried him away. So where the defendants were indicted for exposing their persons to the public view, the intent with which the act was done, was held to be a material ingredient in the offence ; and the fact of so exposing them- selves, but not in an intentional and wan- ton manner, nor with the design or ex-* pectation of being seen by others, was not sufficient to complete the crime. Miller v. The People, 5 Barbour, 203. See Com- monwealth v. Haynes, 2 Gray, 72. ' It should be remembered, however,' that wrongful acts done throijgh mistake or ignorance of the law, are nevertheless punishable as crimes ; for every person is bound to know the law of the land. Rex v. Bailey,l Russell & Ryan, C. C. 1, which was an indictment on a statute passed while the prisoner was at sea, where he could not have learned of its existence ; yet Lord Eldon, and all the judges were of opinion that this fact did not affect the case, except as recommending the prisoner for a pardon ; and this rule applies even to foreigners who*ommit a crime in this country which they did not in fact know to be such, as it was not penal in their own country. Rex v. Esop, 7 Carrington & Payne, 456. And see Saronnet, Ex parte, 16 Eng. Law and Eq. R. 861 ; 1 Pearce, C. C. 51 ; 1 Ellis & Blackburn, 1 ; a case of a duel be- tween Frenchmen, who were temporarily residing in England. So, it should not be forgotten, that al- though an act may be itself apparently lawful, yet if it is done with a criminal intent, and produces a public injury, it thereby becomes punishable as a crime. Lord Mansfield, C. J., in Rex v. Scofield, Caldecott, 397 ; Fairlee v. The People, 11 Illinois, 1. Much more, if one does an act unlawful in itself, and it produces an injury not in- tended by him, is he responsible for the consequences, and the law conclusively , infers the malicious intent. See Ann v. The State, 11 Humphreys, 159 ; State v. Smith, 32 Maine, 369; Brennan v. The People, 15 Illinois, 511. Thus, where A. fired a pistol at a person on horseback, only with the intent to cause the horse to throw him, but the ball took effect on B., and caused his death, the act was held to be murder. State v. Smith, 2 Strobhart, 77. So, if a person having determined to take the life of another, discharges a gun at him, not knowing whether it is loaded or not, but with the expectation and de- sire' that it is, and the death -of the latter is caused, the former is guilty of murder. Commonwealth v. Green, 1 Ashmead, 289. III. The act done must he an injury to the public. An infringement of private rights alone, although done wilfully, is not, at common law, a crime. And so far is this principle carried, that not even is a conspiracy to commit a trespass to private property in- dictable, although the injury be in fact carried out. Rex v. Turner, 13 East, 228. There several persons agreed to go, and did go, into a preserve for hares belonging to a third person, for the purpose of snar- ing them. Lord Ellenborough said: I should be sorry to have it doubted, whether persons agreeing to go and sport upon an- other's ground, in other words, to commit a civil trespass, should be thereby in peril of an indictment for an offence, which would subject them to infamous punishment. " The distinction of public wrongs from private," says Blackstone, "of crimes and LEADING CEIMINAL CASES. Crimes — Private Injuries — - Distinction between. misdemeanors from civil injuries, seems principally to consist in this — that private wrongs, or civil injuries, are- an infringe- ment or privation of the civil rights 'which belong to individuals, considered merely as individuals; public •wrongs, or crimes and misdemeanors, are a breach and viola- tion of the public rights and duties, due to the whole community, considered as a community, in its social aggregate capac- ity." 4 Blackstone, Comm. 5. Neither is an injury which is quasi pub- lic, always indictable as crime. Thus, in Rex v. Richards, 8 Term R. 634, the defend- ants were indicted for the non-repair of a road. The road had been laid out under an act of parliament, for the use of nine parishes, and it was made the duty of the* defendants, as inhabitants of six of the parishes, to keep the road in repair, which duty they had neglected. Upon the ques- tion whether this was an indictable offencef the court said : " However convenient it might be that the defendants should be indicted, there was no legal ground on which this indictment could be supported ; that the known rule was, that those mat- ters only that concerned the public, were the subject of an indictment; that the road in question being described to be a private road, did not concern the public, nor was of a public nature, but merely concerned the individuals who had a right to use it ; that the question was not varied ' by the circumstance that many individu- als were held to repair, or that many others were entitled to the benefit of it ; " and they also held, that the fact that the road was set out under a public act, did not make the non-repair of it indictable. So in Commonwealth v. Webb^ 6 Ran- dolph, 726, an information for a nuisance, in damming up and stagnating the waterg of a creek, whereby the air was corrupted and infected, etc., to the great damage,- etc., was held insufficient, as not being sufficiently a public injury. The court said that to constitute a public nuisance, the act/done, of duty omitted, must affect injuriously, some thing, or right, in which the community, as a body politic, have a common interest, and the facts producing this injury, and connecting it with such special public right, or interest, must be both alleged, and proved. To carry this matter further, would obliterate every line that now marks the difference between public and private wrongs. The commu- nity have an interest in the preservation of the health and lives of its members ; they have a right to see and provide that each shall breathe the air as pure as na- ture gives it. But this interest, and this right, in' no manner differs from the inter- est in, and right to secrJre, the welfare of all its members, in every private relation. Both are provided for by private actions, or public prosecutions, according to the nature of the case. As it regards the case before us, we find it everywhere laid down, that things done, or duties omitted, which affect the public interest, are public nuisances ; those on the contrary, which af- fect particular individuals, are private nui- sances, and redressed by private actions.'' So in The State v. Baldwin, 1 Devereux & Battle, 195, it was held that to render any act indictable as a nuisance it must be an offence so inconvenient and trouble- some as to annoy the whole community, and not merely particular persons. There- fore where it was charged that the defend- ants assembled at a public place, and profanely, and with a loud voice, cursed, swore, and quarrelled in the hearing of divers persons, then and there assembled, whereby a certain singing school was dis- turbed and broken up, ad commune nocu- mentum, it was adjudged that this indict- ment averred no crime. Rex v. Lloyd, 4 Espinasse, R. 200, fur- nishes another good illustration of this principle. The defendant, a tinman, was indicted for a nuisance, from the noise made in carrying on his trade. The pros- ecutors were attorneys in Clifford's Inn. From the evidence, it appeared that the noise affected only three numbers, 14, 15 and 16, of that inn. Lord Ellenborough said that, upon this evidence, the indict- ment could not be sustained ; and that it was, if any thing, a private nuisance. It was confined to the inhabitants of three numbers of Clifford's Inn only ; it did not 10 LEADING CRIMINAL CASES. Crimes — Private Injuries — Distinction between. even extend to the rest of the society ; it was therefore not of sufficiently general extent to support an indictment, and the defendant was acquitted. So, in Rex v. Medley, 6 Carrington & Payne, 292, in a prosecution against a gas company for poisoning the water of the Thames by conveying refuse gas into it, Lofd Den- man ruled that the fact, that thereby the fish were much diminished, and a considerable number of fishermen thrown out of employment, was not of itself suffi- cient ground to sustain the indictment; for if it were so, every successful specula- tion in trade might be the subject of a prosecution. The act complained of must be to the common nuisance of the king's subjects. And it is for this reason that in- dictments for a nuisance must conclude to the common nuisance of all the citizens, etc. ; a conclusion to the common nuisance of divers citizens is not sufficient. Com- monwealth v. Fans, 5 Randolph, 691 ; Commonwealth v. Smith, 6 Cushing, 80 ; Grqffins v. Commonwealth, 3 Pennsylvania R. 502. And a disorderly house, or a tip- pling house, to be indictable, must be averred to be a " common " tippling house. Dunnaway v. The State, 9 Yerger, 350. See Commonwealth v. Haynes, 2 Gray, 72 ; Commonwealth v. Boon, 2 Gray, 74. The injuries to private rights, most fre- quently indicted as crimes, are such as arise either from breach of contract, or from fraud, or from trespass to real or personal estate. (1.) As to injuries from breach of con- tract. Although at the present day it may rowed 51. of the prisoner, and pawned gold rings to secure the payment'; and at the day, A. tendered the money, but the prisoner refused to deliver up the rings ; but this was considered only a breach of civil contract, and not indictable; So in Rex v. Bradford, 2 Lord Raymond, 366, a physician was indicted for not curing his patient in three Weeks, as he had promised to do, but the indictment was quashed as being only a breach of con- tract. And where the justices had made an order that A. should pay his tailor 11. for work done, which he refusing to do, was indicted, the indictment was subse- quently quashed, for it was a matter not Indictable. Rex v. Brown, 3 Salkeld, 189. .: In Rex v. Nehuff, 1 Salkeld, 151, the de- fendant had borrowed 600Z., and promised to send the lender fine cloth and gold dust as a pledge, but in fact he sent no gold dust, but only some coarse cloth, worth little or nothing. The court said that was not a matter criminal, but it was the prosecutor's fault to repose such con- fidence in the defendant. But there are some acts, which although they may seem to be only breaches of con- tract, have yet been considered of such a nature as to amount to a misdemeanor. Thus in Rex v. Friend, Russell & Ryan, C. C. 20, the majority of the court considered it an indictable offence to neglect to pro- vide sufficient food, clothing, etc., for an infant apprentice of tender years, who was unable to provide for and take care of itself, and whom the defendant was obliged by contract to provide for, so that such child's health was materially injured there- seem too clear to require an argument, by. But Justice Chambre thought it was that the mere non-fulfilment of a contract not in any manner an indictable offence cannot be a crime, yet in earlier times, being founded wholly on contract. And courts were frequently obliged to pass see Rex v. Squire, 1 Russell on Crimes 490. upon indictments for such acts before that But to render such an act indictable the species of redress for private 'wrongs was child must have been of such tender years entirely abandoned, and before people that it could not act or judge for itself. ceased to invoke the arm of the criminal Rigina v. S- law to punish those who had simply viola- ted their word. We give below a few of the earlier cases opon this subject. In Rex v. Bamham, 1 Salkeld, '379, there was an indictment for that A. bor- 5 Cox, C. C. 279 ; Rex v. Ridley, 2 Campbell, 650. The misde- meanor, therefore, in Rex v. Friend, in Hex v. would seem to be founded not so much on breach of contract, as on an in- tentional or wanton injury to another's LEADING CRIMINAL CASES. n Crimes — Private Injuries — Distinction between. life and health. From injuries by mere breach of contract, therefore, we pass to (2.) Injuries by means of fraud. And here much more uncertainty and confusion exist among the adjudged cases than in cases of simple breach of contract. Neither are the decisions entirely harmo- nious, but from an examination of them all, it may be gathered that by no means •was every fraud or cheat indictable at com- mon law. Two things at least were essen- tially requisite, flfr 1. The fraud ttrost have been such as tended to injure the public. 2. It must have been one against which common prudence could not guard. The statute of 33 Henry 8, ch. 1, (1542,) made the first inroad upon the common law in this particular, by which, obtain- ing goods, money, &c, by false " privy tokens, and counterfeit letters in other mens' names," was made a criminal offence. This statute has sometimes been said to form a part of the common law of this country. 6 Massachusetts, 72; 12 John- son, 292; 3 Greenleaf,, Ev. § 86. And many cases have discussed what was cheating by false tokens, severaUof which are subsequently stated in this note. But this statute, although it modified to some extent the common law,did not ren- der indictable those acts against which common prudence would be a sufficient security. Besides, it' was only a partial and limited protection, and many frauds were allowed to go unpunished, because they had not been committed by means of false tokens, technically so called. Fur- ther legislation therefore became neces- sary, and the act of 30 George 2, ch. 24, § 1, (1757,) was passed, making it indict- able to obtain money, goods, etc., by any false pretence. This has been generally reenacted in this country, and numerous and delicate questions have arisen upon it, on both sides of the Atlantic, but an ex- amination of them now is foreign to the object of this note. But to return to the question of frauds indictable at common law. East says the offence of cheating, at common law, consists in the fraudulent obtaining the property of another by any deceitful and illegal practice or token, (short of felony,) which affects, or may affect the public ; such as is public in its nature, and calcu- lated to defraud numbers, to deceive peo- ple in general. 2 East, P. C. 817. Haw- kins makes endeavoring to defraud an- other, a crime, but this is clearly incorrect at common law. 2 bk. ch. 71, § 1. Numer- ous early cases illustrate the distinction between a cheat which might be injurious to the public, and such as affected only private rights. In Rex v. Bryan, 2 Strange, 866, the defendant came to a mercer,Tand afiirmed that she was servant to the countess of Pomfret, and was sent by her to fetch some silks for the queen, endeavoring thereby to defraud the mercer ; whereas in fact, she was no servant of the countess, and was not sent upon the queen's ac- count. After verdict for the king, it was moved in arrest of judgment, that there being no false tokens or any actual fraud committed, there was no offence indictable. Keftve, contra, cited a case from Ventris of an indictment for a conspiracy to charge a man with a bastard child, where there really was no child, so that the party could not suffer. The court said: There the conspiracy was the crime, and an indict- ment will lie for that, though it be to do a lawful act. This is no more than telling a lie, and no custom being shown to main- tain it, the judgment must be arrested. Other decisions fully sustain the princi- ples here advanced. In Rex v. Pinhney, the defendant was indicted for selling a sack of corn at Bippon market which he falsely affirmed to contain a Winchester bushel, ubi revera et in facto plurimum deficiebat, and the indictment was quash- ed upon motion. And in the same case it was said, that if a shopkeeper who deals in cloth pretends to sell ten yards of cloth, but instead of ten yards bought of him, delivers only six, yet the buyer cannot indict him for delivering only six, because he might have measured it, and seen whether it held out as it ought to do or not. Bex v. Nicholson, before Lord Baymond, is to the same effect. The 12 LEADING CKIMINAL CASES. Crimes — Private Injuries — Distinction between. defendant being- indicted for selling six chaldrons of coal, which ought to contain thirty-six bushels each, and delivering six bushels short, Lord Raymond ordered him to be acquitted. Precisely the same de- cision was made in Rex v. Dunnage, 2 Bur- row, 1130. Rex v. Osborn, four years afterwards, in the same court, met with the same result. Mr. Justice Ashton thought that this selling short measure • instead of full measure, was worthy the attention of the legislature, although it might not be indictable at common law unless charged to be by false measure ; and Wilmot, J., added : The reason why this is not indictable, is, because it is in everybody's power to prevent this sort of imposition, whereas a false measure is a general imposition upon- the public, which cannot well be discovered. Rex v. Cowbrune, 1 Wilson, 301, is another of the same class of cases. There the defendant was charged with having de- livered to Susan Farmer 274 gallons of strong beer, when he ought to have de- livered 288 gallons, as was agreed and paid for. It was moved to quash this indict- ment, as this was a fraud of a private na- ture, for which an action upon the case for a deceit was the proper remedy, and here was no charge that the defendant sold by false measure. This was held a mere action of deceit, and the indictment must be quashed. So, it is not an, indictable cheat, to obtain goods, on a promise to send the money for them by the servant who should bring them. Rex v. Goodhall, Eussell & Ryan, C. C. 461. And in Hart- rnann v. Commonwealth, 5 Barr, 60, it was held that obtaining a false credit otherwise than by false tokens, or the removal and secreting of goods with intent to defraud creditors, are not indictable at common law. And this was expressly adjudged in Rex v. Lara, 6 Term R. 565, where the defendant, in payment for goods purchased, fraudulently gave a check on a bank where he knew he had no funds. Lord Kenyon said: What the defendant did was im- moral and highly reprehensible, but as he used no false token to accomplish his deceit, the judgment must be arrested. The case of Rex v. Jackson, 3 Campbell, 370, cited in 3 Greenleaf, Ev., § 84, note 3, as being contra, was decided, under the statute of 30 George 2, against false pretences, and confirms rather than opposes Rex v. Lara. Rex v. Bower, 1 Cowper, 323, furnishes another excellent illustration of the princi- ples which the courts have adopted on this subject. There the defendant was found guilty of " knowingly exposing for sale and selling a gold chain, under the ster- ling alloy, as and for golk)f the true stand- ard weight." On motiOTin arrest of judg- ment, Lord Mansfield said : The ques- tion is, whether the exposing wrought gold to sale under the standard, is indictable at common law ? It is clearly an impo- sition, but I incline to think it is one of those frauds only which a man's own com- mon prudence ought to be sufficient to guard him against, and which therefore is not indictable, but the party injured is left to' his civil remedy. In Rex v. Duf- field, Sayer, 146, the defendant was in- dicted for a cheat in delivering less coal than was purchased, but the indictment was quashed. This was the case refer- red . to in Rex v. Wheatley. So in Regina v. Jones, 1 Salkeld, 379; 6 Mod- ern, 105, the defendant came to A., pre- tending that he was sent by B. to re- ceive 20Z., and he received it, whereas B. did not send him. Being indicted therefor, the indictment was quashed, the court saying : It is not indictable unless he came with false tokens. We are not to indict one man for making a fool of another. Let him bring his action. 2 Lord Raymond, 1013. These principles were sometimes pushed very far, as in Rex v. Channel, 2 Strange, 793, an indictment against the defend- ant for " that he keeping a common grist- mill and boy employed by W. B. to grind three bushels of wheat, did vi et annis, illicite take and detain forty-two pounds weight of the wheat." Upon a demurrer, judgment was given for the defendant, there being no actual force laid, and this a matter of a private nature* for which an action would lie. In close analogy with Channel's case, and apparently somewhat governed by it, LEADING CEIMINAL CASES. 13 Crimes — Private Injuries — Distinction between. is Rex v. Haines, 4 Maule & Selwyn, 214, ■where it was held not indictable for a miller, who received good barley at his mill to grind, to deliver a mixture of oatmeal and barley-meal in return. The meal given in exchange in this case was in fact musty and unwholesome, but as the indictment was insufficient in its allegations to convict upon that point alone, the judgment was reversed. Lord Ellenborough said : As to the allegation that the quantity deliv- ered was musty and unwholesome, if it had alleged that he delivered it as an article for the food of man, it might possibly have sustained the indictment ; and as to the other point, that this is not an indict- able offence because it respects a matter transacted in the course of trade, and where no tokens were exhibited by which the party acquired any greater degree of credit, if the case had been that this miller was owner of a soke mill, to which the in- habitants of the vicinage Tvere bound to resort in order to get their corn ground, and that the miller's abusing the confidence of this his situation, had made it a color for practising a fraud, this might have pre- sented a different aspect; but as it now is, it does seem to be no more than the case of a common tradesman who is guilty of a fraud in a matter of trade or dealing, such as is adverted to in Rex v. Wheatiey, and the other cases, as not being indicta- ble. These objections, therefore, and one is sufficient, seem to be fatal. It is to be noted, that in Rex v. Channel, the indictment, on its face, was only for unlawfully taking and detaining part of the corn ; there was no allegation that the act was done feloniously, and whether the facts proved would have warranted an in- dictment for larceny or not, the court did not say, as the case came up by demurrer. A similar remark may be made of Rex v. Haynes, which was for fraud, not for a lar- ceny. The question whether the miller had taken the corn with intent to steal, was not before the court. In this view, the cases are not in necessary conflict with an American case against a miller, who received barilla to grind, and fraudulently retained part of it, returning a mixture of barilla and plas- ter of pans, and this was held, and upon 2 deliberate consideration, to be larceny at common law. Commonwealth v. James, 1 Pickering, 375. The same rule applies whether the fraud consists in delivering less in quantity than was sold, or in delivering a different article : the latter is no more a crime than the form- er. For in Rex v. Lewis, 3 Burrow, 1697, decided in 1755, the defendant was in- dicted for selling as gum senega what was not gum senega, and after a verdict of guUfcy, judgment was arrested, and Mr. Jus- ticwVilmot pronounced this a very strong' case. It is better reported in Sayer, 205. See also Rex v. Botwrighl, Sayer, 147. So, no indictment will lie for a deceitful representation and warranty of property- sold. Rex v. Pywell, 1 Starkie, K. 402. See Regina v. Rowlands, 9 Eng. Law and Eq. K. 287 ; 2 Denison, C. C. 364. Nor for twice selling the same property. Rex v. Codrington, 1 Carrington & Payne, 661. (2.) ~Tlie fraud must be one, againstwhich common prudence could not guard. The foregoing cases fully settle the dif- ference between private cheats and public frauds. We come now -to such cheats as were indictable. Although false tokens were made punishable by statute 33 Henry 8, which enlarged the common law in some particulars, yet they were always indictable if calculated to affect the public at large, and against which common prudence could not guard. Thus, cheating by false weights and measures, which are known public tokens, was clearly indictable at common law, for these betoken a general design to fraud ; they are instruments or tokens pur- posely calculated for deceit, and by which the public in general may be imposed upon without any imputation of folly or negli- gence. Rex v. Burgaine, 1 Siderfin, 409. And this rule applies to all cases where any false token is used, as in Rex v. Edwards, where cloth was sold with the alneager's seal counterfeited thereon. So, playing with false dice. Rex v. Maddock, 2 Rolle, 1 07 ; Leeser's case, Croke, James, 497. And pretending to have power to discharge soldiers, and taking money from them for false discharges. Serlested's case, Latch, 202. Another class of cases indictable 14 LEADING CRIMINAL CASES. Crimes — Private Injuries — Distinction between. at common law, are cheats which affect the public justice, such as doing judicial acts without authority, in the name of another. In addition to these, there are instances to be found, in the books, of cheats which are in their nature private,'but which have been held indictable at common law; but upon examination they will appear to be founded either on a conspiracy, forgery, or involving considerations of public justice, public trade, or public policy. The whole subject is carefully 1 examined in 2 Wist, P. C. 816, title, Cheats. , In America, the same general principles in regard to what constitutes an indictable fraud at common law, were recognized in Commonwealth v. Warren, 6 Massachusetts, 72. There Warren was indicted for con- triving and intending to deceive, cheat, and defraud one Adams, by falsely pre^ tending and affirming to him that his name was Waterman, that he lived in Salem, and there kept a grocery store, and that he wished to purchase goods on credit, giving his own note as security therefor ; and Adams, confiding in such false pre- tences and affirmations, sold him the goods, and took his note, which he subscribed with the name of Waterman. This was held no crime, and Parsons, C. J., said, in his opinion : We see here no con- spiracy, for the defendant was alone in the fraud, and no false tokens to induce a credit ; and as for false weights and meas- ures, there is no pretence. We cannot therefore consider the facts stated in the indictment, (however injurious they were to Adams,) as constituting a public in- dictable offence. The Slate v. Justice, 2 Devereux, 199, is to the same effect. So it was held no crime, but only a private wrong, for the grantee of a deed, lodged with a third person as an escrow, fraudu- lently to obtain possession of the deed from such depositary. Commonwealth v. Hearsey, 1 Massachusetts, 137. And in another American State, a similar decision was made. Thus, A. having a judgment against B., the latter said he would settle it by paying money in part, and giving his note for the residue ; on which A. drew a receipt in full discharge of the judgment, and B. obtained the receipt without paying the money or giving the note ; upon which ha was indicted for hav- ing obtained the receipt "falsely, fraud- ulently, and deceitfully, and under false colors, acts, and pretexts,." etc. It was held there was no common law offence, no cheating by any false token, and nothing but a false assertion, which common pru- dence would have guarded . against, and therefore that no indictment would lie. People v. Babcock, 7 Johnson, 201. Seven years afterwards, the same subject was be- fore the same court in The People v. Miller, 14 Johnson, 371, where the defendant ob- tained possession of a promissory note by pretending that he wished to look at it, and then carried it away, and refused to deliver it to the owner ; it was held that this was merely a private fraud, and not punishable criminally, and The -People v. Babcock was cited with approbation. So in State v. Wilson, 2 Constitutional R. 135, it was held not an indictable cheat to sell a girl, as a slave who was not known to be free, and the principle of the English decisions was approved. . Neither is it an.' indictable cheat to put a large stone into one . roll of butter, with intent to defraud the buyer. Weierback v. Trone, 2 Watts & Se'rgeant, 408; which was an action of slander for charg- ing the plaintiff with cheating. Gibson, C. J., said : With what then was the plaintiff charged ? Not with cheating in a course of public dealing, but with an attempt to cheat in a'private transaction, against which common care and prudence were sufficient to guard, because the fraud attempted was alleged in fact to have been unsuccessful ; it was discovered before the transaction was concluded ; and the buyer paid for no more than he got. As the plaintiff therefore could not have been prosecuted for a cheat had the charge been true, the words are not actionable. The subject of cheating by false tokens, at common law, has also been under con- sideration in this country, and the princi- ples of the early English decisions adopted. This point was discussed in The State v. LEADING CKIMINAL CASES. 15 Crimes t- Private Injuries — Distinction between. Stroll, 1 Richardson, 244. The defend- ants there offered in payment for goods, a bank-bill which they knew to be worthless. The majority of the court held a false bank-bill to be a public token, and cheating by it, an offence at common law. O'Neal, J., was of the contrary opinion, apparently thinking there was nothing to distinguish this case from The State v. Middleion, Dudley, 275, before the same court, where the instrument offered was the promissory note of an individual, which was not con- sidered a public token, and therefore not indictable. But the case is in analogy with Lewis v. The Commonwealth, 2 Ser- geant & Rawle, 551, which was an indict- ment at common law for passing a counter- feit Tjank-note. Tilghman, C. J., said : It is a principle of the common law, that offences falling under the head of the cri- men falsi, such as . forgery and cheating, may be punished by the pillory. It is not every cheat, indeed, which may be so pun- ished. One may cheat another by barely telling a lie to deceive him in the quality of goods sold. Such description would not be subject to an indictment. But a cheat, which affects the public, is indict- able. The offence charged in this indict- ment must affect the public. Bank-notes, though not strictly money, are its repre- sentatives, and circulate generally in the place of the lawful money of the country. ... I see no reason to doubt that at com- mon law this offence was subject to an infamous punishment. Commonwealth v. Speer, 2 Virginia Cases, 65, is to the same effect; and The Commonwealth v. Searle, 2 Binney, 332, goes still further. But the promissory notes of individuals, unless made to resemble bank-notes are not public tokens, and passing them as good when known to be worthless, is not an indictable cheat at common law. Stale v. Patillo, 4 Hawks, 348. The doctrine of public tokens was also involved in the the early case of RespMica v. Powell, 1 Dallas,. 47. The defendant, a baker, employed by the army of the United States, was indicted at common law for a cheat in baking 219 barrels of "bread and marking them as weighing eighty-eight pounds each, whereas they weighed only sixty-eight pounds. For the defendant it was contended that false tokens were in- dictable only by the statute 33 Henry 8, ch. 1, which it was claimed had no opera- tion in Pennsylvania. The attorney-gen- eral insisted that the defendant's office was a public trust. The court said this was clearly an injury to the public, and the fraud the more easily to be perpetrated since it was the custom to take the barrels of bread at the marked weight, without weighing them again. The public, indeed, could not by common prudence prevent the fraud, as the defendant himself was the officer of, the public, pro hac vice. They were therefore of an opinion that the offence was indictable. So far, the decisions on both sides of the Atlantic are apparently harmonious, but one American case seems to us in conflict with the English decisions, and with cor- rect principle. We refer to The State v. McLeran, 1 Aikens, 311. The defend- ant was indicted under a statute of Ver- mont for forgery. The specific fact set out was, that there having been an indorse- ment of part payment on the back of a promissory note payable to the defendant, the defendant, " with force and arms, wit- tingly, falsely, and deceitfully separated said indorsement from the note, with in- tent to deceive and defraud the maker." To this the defendantdemurred. The court held that the facts alleged did not amount to forgery under a statute of that State, but were nevertheless, they say, " as, great a crime against public justice and the pub- lic peace, as were those forgeries which did come within the statute. It is as great a crime in foro conscientiai. It is an act malum in se. It is a crime at com- mon law." Notwithstanding the respect to which the decisions of this court are generally entitled, the case above cited seems doubtful, for two reasons. 1. The act, if successful, would have affected only private rights, and inflicted only a private injury. 2. No person was in fact defrauded or injured by the act. The indictment did not allege that the maker was obliged to 16 LEADING CRIMINAL CASES. Crimes — Private Injuries — Distinction between, pay, or ever did pay, the whole amount of the note, or that any person took the note believing the whole sum named on its face to be justly due. In neither light, there- fore, can we see that any offence cogniza- ble at the common law was in fact com- mitted. The same error seems to have been made by the learned judge who pronounced the judgment in Hill v. The State, 1 Yerger, 76, who declared it to be an indictable cheat for a creditor to induce his debtor by false representations and false reading to sign a note for more than was due. That such an act is not a forgery, see Commonwealth v. Sankey, 10 if arris, 390. The case of State v. McLeran, supra, seems to us also in conflict with that of Wright v. The People, 1 Breese, 66, where it was held not an indictable fraud to sep- arate the condition from the penalty of a bond. A very clear opinion is given by Mr. Justice Smith, who said : In the present case it is a mere private injury, the public could in no way be affected by the ac^ ; nor is it a case of false tokens which is necessary to be shown, in a fraud on a private individual ; the act of separating the condition, he said, could not be con- sidered as one which common prudence could not have guarded against. (3.) Injuries by torts. It is equally clear, that an injury to private property by a tortious act, , is no more a crime at common law, than a breach of simple contract. Neither does the fact that such tortious act was wilfully done, or vi et armis, materially affect the case. Thus in Rex v. Atkins, 3 Burrow, 1706, the defendant was indicted for forcibly pulling off the thatch from a man's dwell- ing-house while he was in the peaceable possession of the same. But the' indict- ment was quashed by Lord Mansfield and Mr. Justice Ashton, as being only a civil in- jury. Rex v. Gillet, 3 Burrow, 1 707, is to the same effect. So any mere trespass to real estate,not amounting to forcible entry, tech- nically so called, is not indictable. Rex v. Bake, 3 Burrow, 1 731. Henderson's case, 8 Grattan, 708 ; Kilpatrick v. The People, 5 Denio, 2 7 7 ; The State v. Walker, 10 Iredell, 234 ; Rex v. Storr, 3 Burrow, 1698. The last was " for unlawfully entering the yard of a Mr. Sweet, digging up the ground, and erecting a shed, and unlawfully, and with force of arms putting out and expel- ling the said Sweet from the same, and keeping him from the same." The ques- tion whether this was a crime, or only a civil injury, was carefully considered, and the indictment was unanimously quashed as averring no offence known to the law. The mode of disposing of this indictment is strong proof of the clear opinion of Lord Mansfield and his associates on this subject ; as indictments were not quashed on mere motion, unless the case was con- sidered too clear to allow it to proceed fur- ther. We are aware that in Missouri, a different doctrine has been held, and it was there considered a crime at common law to unlawfully throw down, in the night season, the roof and chimney of a dwelling- house, with force and arms, in the peacea- ble possession of the owner. The Stale v. Wilson, 3 Missouri, 91. But the question does not seem to have received much con- sideration, and is in conflict with Rex v. Atkins, supra. Neither will an indictment lie for enticing an apprentice to absent himself from his master, because it doth not affect the public. Regina v. Daniel, 3 Salkeld, 191. Nor for slanderous words spoken. Regina v. Langley, 3 Salkeld, 130 ; Rex v. Penny, 1 Lord Raymond, 153. So, in 1690, Elizabeth Stonehouse was indicted for falsely and maliciously accus- ing Henry Bradshaw of felony and of rob- bing her, intending thereby to deprive him of several sums of money ; but this was held to be no public wroYig, and the party having his remedy by action on the case, the indictment was adjudged ill. Rex v. Stonehouse, 3 Salkeld, 188. Trespasses to personal chattels fall un- der the same rule. Thus, in The State v. Farnsworih, 10 Yerger, 261, the indict- ment charged that the defendant "with force and arms, one mare, the property of A., did unlawfully and forcibly take from and out of the possession of the said A." This was held no crime, but only a civil injury. And this was but the repetition of an old case in 1780, before Perryn, B., LEADING CRIMINAL CASES. 17 Crimes — Private Injuries — Distinction between. at the Salisbury Assizes, where an indict- ment averred that the defendant, with force and arms, unlawfully, forcibly, and injuriously, seized, took, and carried away, of and from J. S., and against his will, a paper writing purporting to be a warrant to apprehend the defendant for forgery ; and after a conviction a motion was made in arrest of judgment, on the ground that the charge did not amount to an indicta- ble offence. Perryn, B., took time to con- sider to the subsequent assizes, and had the case argued before^him, and then held the objection valid, as the indictment charged nothing but a mere private tres- pass, ftnd neither the king nor the public appeared to have any interest therein. 1 Russell on Crimes, 53. So it is no crime for A. to hire B.'s horse, and afterwards sell him as his own, unless he intended to steal the horse at the time of the hiring. Regina v. Cole, 2 Cox, C. C. 340 ; Regina .v. Thristle, 3 Cox, C. C. 573 ; nor for A. to take B.'s horse without leave and ride him away. Regina v. Addis, 1 Cox, C. C. 78. For at common law no trespass to chattels is an indictable offence, without a breach of the peace. Not that an actual breach must be committed, but more must be done than a mere civil trespass, as expressed by the terms vi et armis. The peace must be actually broken, or the act complained of must directly and manifestly tend to it, as being done in the owner's presence and to his terror and against his will. State v. Phipps, 10 Iredell, 19. For if the tres- pass neither put theowner in fear, nor provoke him to an immediate redress of his wrongs, nor excite him to protect the possession of his chattels by personal prowess, — and none of these can happen in the absence of the owner and his fam- ily — the' trespass is not indictable. See The State v. 'Mills, 2 Devereux, 420 ; The Slate v. Ray, 10 Iredell, 39 ; The State v. Flowers, 2 Murphey, 254. Arid it las been held no crime at common law, forci- bly to take from an officer goods which have been seized by him on execution, there being no assault upofa him, for this is only a private injury, and the officer may have his action for it. The State v. So- therlen, Harper, 414. Sed quare. 2* Thus far there is no difficulty, and not much conflict of authority. But when the personal property of another has been destroyed wantonly, maliciously, and un- der such circumstances as indicate a re- vengeful spirit and a general malicious disposition, there is much discrepancy among the adjudged cases whether this is, or is not, an offence at common law. One of the strongest cases to be found in the affirmative of this question, is that of The People v.- Smith, 5 Cowen, 258, where the defendant was indicted for "maliciously, wickedly, and wilfully killing a cow," the property of another. Upon the point whether this was an indictable offence at common law, Woodworth, J., observed : yhere is no precise line by which in- dictments for malicious mischief are sepa- rated from actions of trespass. Black- stone, in the 4th volume of his Commen- taries, speaks of the former as done, not animo furandi, or with an intent of gain- ing by another's loss ; but either out of a spirit of wanton cruelty, or black and diabolical revenge. It cannot be expected, that the mere liability to damages, will operate on a mind so depraved. The in- jury may be committed when none but the person injured is a witness. The per- petrator may be insolvent ; and thus grat- ify his toalice with impunity, if there is no redress otherwise than by xiivil action. This would be contrary to the policy of every well regulated government ; -which is to protect the citizen in his right, by re- straining and punishing the wrongdoer. The offence is distinguishable froin an or dinary trespass, in this — that it is not only a violation of private right, without color or pretence, but without the hope or ex- pectation of gain. Such an act discovers a degree of moral turpitude dangerous to society, and, for their security, ought to be .punished criminally. It is an evil ex- ample of the most pernicious tendency, inasmuch as the act is an outrage upon the principles and feelings of humanity. The direct tendency is a breach of the peace: What more likely to produce it, than wantonly killing, out of mere malice, a useful domestic animal? Acts injuri- ous to private persons, 'which tend to ex- 18 LEADING CEIMINAL CASES. Crimes — Private Injuries — Distinction between. cite violent resentment, and thus produce a disturbance of the peace, have always been held indictable. Thus, sending a challenge to fight a duel, or publishing a libel, are indictable offences. It appears to me, that the offence stated in this in- dictment is a proper subject of criminal prosecution. It was so held in RespuUica v. Teischer, 1 Dallas, 355, a case precisely like the present. M'Kean, Ch. J., ob- served that the poisoning of chickens, cheating with false dice, fraudulently tear- ing a promissory note, and many other offences of a similar description, had been indicted in Pennsylvania. This case is approved in Commonwealth v. Taylor, 5 Binney, 277. In Commonwealth v. Leach, 1 Massachusetts, 59, the defendants were indicted for poisoning a cow. The only- question raised was, whether the Sessions had jurisdiction. There was not^even a suggestion, by the court or counsel, that the offence was not indictable. I enter- tain no doubt, that the conviction in this case was warranted by the principles of the common law; and judgment should be given against the defendant. The principles here laid down were entirely adhered to by the same court in Loomis v. Edgerton, 19 Wendell, 419. That was an action of trespass against an officer for arresting the plaintiff upon a complaint and warrant charging him with having " with force and arms, etc., wilfully, wickedly, maliciously, and in a secret manner, seized and broken in pieces, a cutter," etc. It was claimed by the plain- tiff, that the act charged was not a crimi- nal offence, but the court held the con- trary, and Cowen, J., said: The princi- ple of the case of The People v. Smith, 5 Cowen, 258, and of the cases there cited, is in point ; that malicious mischief done to any kind of property is a misdemeanor. The general principle is there laid down, and exemplified by various cases,* and must be maintained. We are clear that the warrant in the case at bar recited a criminal offence. The same view had been taken much earlier in Pennsylvania, in the case of RespuUica v. Teischer, 1 Dallas, 355, where the indictment was for maliciously, wilfully, ajid wickedly killing a horse. Ch. J. MeKean said : It is true, that on the examination of the cases we have not found the line accurately drawn, but it seems to be agreed that whatever amounts to a public wrong, may be the subject of an indictment. He instances offences held indictable, and remarks: Unless indeed an indictment would lie, there are some yery heinous offences which might be perpetrated with absolute impunity, since the rules of evidence in a civil suit exclude the testimony of the party injured, though the nature of the transaction generally makes it impossible to produce any other proof. - And the indictment was held to lie in the case be- fore him. And this was followed by the same court in Commonwealth, v. Eckert, 2 Browne, 249, for maliciously destroying a tree standing on public ground in a village. In the late able case of Kilpat- rkh v. The People, 5 Denio, 278, the foregoing cases were critically examined, and seem to have been tacitly disapproved, or distinguished, on the ground that the acts charged in those cases were done se- cretly, and in the night timej and it was there held no crime at common law, " with force and arms, unlawfully, wilfully, and maliciously to break in pieces and de- stroy two windows in the dwelling-house " of another ; and the general reasoning of the case is -against the former cases in the same court. But an early case in Massa- chusetts seems to 1 sanction the same doc- trine as in RespuUica, v. Teischer, 1 Dallas, 355, and a prisoner was there convicted at common law of maliciously poisoning a neighbor's cow. Commonwealth v. Leach, 1 Massachusetts, 59. The point whether this act was indictable at common law, does not appear to Have been directly raised, but the only question before the court was, whether the Court of Sessions had jurisdic- ti«i of this offence. However, the case has been often cited since by the same court, and without express disapprobation. And as a subsequent statute has made the act criminal in that State, that court may never be called upon to decide directly whether such an act was or was not in- dictable at common law. In other States, LEADING CKIMINAL CASES. 19 Crimes — Private Injuries — Distinction between. however, Commonwealth v. Leach has cer- tainly been relied upon, as deciding that malicious destruction of domestic animals is a misdemeanor at common law, and it has probably had some influence in estab- lishing that doctrine in many States. This principle was adopted in Common- wealth v. Taylor, 5 Binney, 277. There the indictment charged that the defendant " unlawfully, secretly, and maliciously, with force and arms, broke and entered at night the dwelling-house of B., with in- tent to disturb the peace of the Common- wealth, and after entering the house, un- lawfully, wilfully, and turbulently, made a great noise, in disturbance of the peace of the Commonwealth, and did greatly mis- behave within i said dwelling-house, "and did greatly frighten and alarm the wife of the said B., whereby she miscarried," etc. This was held not to amount to a forcible entry at common law, and there- fore not indictable as such ; but the court considered it a misdemeanor at common law. Similar views seem to underlie the decision in Commonwealth v. Wing, 9 Pickering, 1 ; where it was held that if one discharges a gun at wild fowl with knowledge and warning that the re- port will injuriously affect the health of a sick person in the neighborhood, and such effect is produced by the discharge, he is guilty of an indictable offence ; and Parker, C. J., said : If thS indictment were for a nuisance, the authorities cited by the de- fendant's counsel would clearly show, that it could not be sustained ; for the most that could be made of it would be a private nuisance, for which an action on the case only would lie. But we think the offence described is a misdemeanor, and not a nuisance. It was a wanton act of mischief, necessarily injurious to the person aggrieved, after full notice of the consequences, and a request to desist. The jury have found that the act was ma- liciously done. In the case of Cole v. Fisher, 11 Massachusetts, 137,- Chief Justice Sew- all, in delivering the opinion of the court, speaking of the discharging of guns un- necessarily, says : If it is a matter of idle sport and negligence, and still more when the act is accompanied with purposes of wanton or deliberate mischief, the guilty party is liable, not only in a civil action, but as an offender against the public peace and security, is liable to be indicted, etc. Now the facts proved in the case, namely, the defendant's previous knowledge that the woman was so affected by the report of a gun, as to be thrown into fits, the knowl- edge he had that she was within hearing, the earnest request made to him not to dis- charge his gun, show such a disregard to the safety, and even the life of the afflicted party, as makes the firing a wanton and deliberate act of mischief. So in The State v. Batchelder, 5 New Hampshire, 549, it was judged an indict- able offence at common luw to break with clubs the window of a dwelling-house in the night, and thus disturb the peace and quiet of a family therein. And in Hen- derson's case, 8 Grattan, 708, it was con- sidered an offence at common law, to go armed upon another man's porch and there shoot his dog, to the terror and alarm of the inmates of the house. But the case proceeded principally upon the ground that the acts charged amounted to a 1 breach o£ the public x peace, and not merely a trespass upon private property — or as a species of forcible entry into a dwelling-house, which all agree is indicta- ble at common law. Harding's case, 1 Greenleaf, 22 ; Rex v. Bathurst, Sayer, 225 ; Rex v. Wilson, 8 Term'K. 357 ; Com- monwealth v. Shattuck, 4 Cushing, 141. But in such cases some- person must be in the house or on the premises, who has the right to defend the possession, or be provoked at its invasion, or the tres- pass would not amount to a breach of the peace, or have an immediate tend- ency to provoke it. The Slate v. Walker, 10 Iredell, 234 ; The State v. Fort, 4 Dev- ereux & Battle, 192. The doctrine of The People v. Smith, and Respublica v. Teischer, ante; was once recognized in the State of Vermont. The State V. Briggs, 1 Aikens, 226. ' In this case arson and the like. But these are, in their tendency, so manifestly injurious- to the public as to give no room for doubt of their liability to public prosecution. On the other hand, numerous offences seem to be purely public in their character; such as acts endangering the public health, public morals and decency, public peace, and public justice. These become, by their very existence, criminal, it being immaterial whether in fact they have pro- duced injury to any individual or not. But it was not intended in this note to discuss the general subject of crimes and misdemeanors, but to allude to such only as bordered closely on the line of demarca- tion which separates mere private injuries from those of a public and general nature. And with the exception . of the discrep- ancy among the authorities on the subject of malicious injuries, the adjudged cases may easily be reconciled ; and the general principles are now clearly defined, well understood, and, in most cases, correctly applied. E. H. B. LEADING CRIMINAL CASES. 27 Felony — Merger — Civil Remedy. White v. Fort. 1 December, 1824, Felony — Merger — Civil Remedy. The merger of a trespass in the felony (when the trespass is a felony,) is a doctrine of the English law, founded not on policy, but on the king's right by forfeiture ; and as forfeit- ure is not here a consequence of felony, or, at any rate, if it be, is never asserted, the doctrine does not apply in this State. Trespass vi et armis, in which the jury below found a verdict for the plaintiff, subject to the opinion of the court on a point reserved, which is as follows : — This was an action 1 to recover damages of the defendant for the burning a tavern-house, and the furniture therein, privately in the night, which belonged to the plaintiff, and which stood a short dis- tance from the hous^pn which the plaintiff and his wife lodged. Doctor Smith, who lived with the plaintiff, slept in the tavern-house ; and it was the building in which travellers slept, who tarried with the plaintiff. The plaintiff had preferred to the grand jury a bill of indictment against the defendant, for arson in burning the house, which was returned " not a true bill." No other proceedings crimi- naliter were had upon the charge, and the plaintiff brought this action. The point reserved is, whether it be not necessary to the maintenance of this action, that the defendant be either convicted or acquitted, by a trial before a petit jury ? Whereupon, by the court (Daniel, Judge,) it is considered that it is necessary to the mainte- nance of the action, that the defendant be either convicted or ac- quitted, by a trial before a petit jury, on an indictment for felony ; and, therefore, judgment was rendered for the defendant, and plain- tiff appealed. Taylor, C. J. The two objections taken to the plaintiff's recov- ery are, that the civil trespass is merged in the felony, a prosecution for which ought first to have been regularly had to the conviction or acquittal of the defendant ; and that the rejection of the bill by the grand jury is not a sufficient compliance with the law, to enable the plaintiff to maintain the action. It is difficult to ascertain with precision the source whence the doctrine of merger was derived. As it exists only in those cases 3 Hawks, (North Carolina,) 251. 28 LEADING CRIMINAL CASES. Felony — Mei'ger — Civil Remedy. where forfeiture is the consequence of attainder or conviction, a pre- sumption is furnished that the primary object was to cause persons to prosecute crimes, and thereby to increase the resources of the crown; on the other hand, as forfeitures were annexed only to the higher crimes, treason and felony, the suppression of which was most essential to the* peace and welfare of society, the civil remedy may have been suspended, in order to prompt the injured to bring offenders to justice; not to increase the treasure of the sovereign, but to guard society against the effects of these mote aggravated, and, in early ages, more frequent offences.' Many offences below the grade of felony, are now more dangerous to society than many felo- nies ; and when it is inquired why the civil remtedy is not suspended in them until the offender is brought to trial criminally, the answer is, such offences have grown out of the artificial state of society, and were unknown to the rude simplicity of its early condition. In that, robbery and rapine were the crimes to be punished ; in its more ad- vanced stages, artifice and fraud. Whatever may have been the origin of ths rule, there are ample proofs scattered through the books of its havwg been a fixed rule of the common law, before the period of our Revolution ; and that, in cases of conviction, trover or trespass would lie against the wrong- doer. The principle of the action is referred to the policy of effect- ing the punishment of felons, and preventing the injured party from compounding them. Lofft, 90. There are dicta but no adjudged case countenancing a suit after acquittal, until that cited from 12 East. What is said in that case is so strong, and, to my mind, unanswerable, as to conclude the question. " All the cases which show that an action lies after the conviction of the defendant for the felony, apply strongly in support of it after acquittal ; for it is a stronger case to permit the party injured to proceed upon his civil remedy to recover damages after a conviction of the offender, when the law has, by means of the forfeiture of his property consequent upon a conviction, taken away from him the means of satisfying the damages. Besides, when a defendant, after an acquittal of the felony, is called upon to make recompense in civil damages to the party grieved, it would be stranger for him to be permitted to allege that he was not properly acquitted, than in the case it would be to allege that he had not been properly convicted. And here the defendant cannot say, against the record of acquittal, that this was a felony." If this suspension of the remedy was the consequence of forfeiture alone, I should hold that it had no existence here ; but I cannot sat- isfy myself that it is so. On the contrary, it appears to me tq be one among the many inducements held out by the general policy of LEADING CRIMINAL CASES. 29 Felony — Merger — Civil Remedy, the criminal law, for persons to prosecute. The rewards and immu- nities given to persons who bring offenders to justice, as well in cases where there is no forfeiture, as where there is, afford abundant proofs of this policy. I cannot think that forfeiture has had any force in this State since 1778, when it was declared what part of the com- mon law should be in force here. It is not probable that a preroga- tive should be designedly introduced which a most devoted, but, at the same time, an enlightened supporter of the throne, pronounced an " odious one." Lofft, 90. It was introduced originally to in- crease the king's ordinary revenue, a branch of which it constituted ; and if such means of increasing the revenues of the State rightfully existed, it would not have been overlooked by the succession of able men who have filled the office of attorney-general at different periods. Yet, with the exception of the confiscations and attainders during the war, not a single instance has occurred in the memory of any one, wherein a forfeiture has been exacted. Yet some unfortunate persons have fallen victims to the law, leaving wealth, which is now enjoyed by their posterity. I lay no stress on the two acts which have been passed, suggested, no doubt, by the fears of relations and creditors, and obtained from abundant caution. They ought not to be considered as legislative declarations that forfeitures existed, for every one knows how little interest is taken in private acts gener- ally. As to the manner in which the injured party shall prosecute, it is vain to search the books, because instances of suit after acquittal have only recently occurred. All that good sense and reason seem to require is, that the matter should be first heard and disposed of before a criminal tribunal. If the party prefer an accusation in good faith, although the bill should be rejected by the grand jury, he has done as much as he can do towards prosecuting, and has satisfied the policy of the rule. In England he might have his appeal, but here he can do nothing more than has been done in this case. I think the plaintiff is entitled to judgment. Hall, J. It cannot be denied but that forfeiture for felorry was part of the laws of England ; and that the law in that respect, ex- cept so far as related to suicide, has not been altered by the laws of this State : but I believe there is no instance where the State has ever availed herself of the right which accrued by forfeiture ; no mode has been pointed out by law to make the right available ; no commissioners of forfeited property have been appointed, as has been done in regard to escheated property, and as was done in regard to confiscated property during the Revolutionary war. If, therefore, the enforcement of the rigljt of forfeiture was the reason why the cred- 3* 30 LEADING CRIMINAL CAGE'S. Felony — Merger — Civil Remedy . itor of the felon could not recover in England, that reason will not hold good in this country. The law in regard to lands had relation to the time of the fact committed; in regard to goods and chattels, to /conviction of the felon. 4 Bl. 387. It is said, in the same book, "that in gross and atrocious injuries, the private wrong was swallowed up in the pub- lic ; that satisfaction to the individual was seldom made, the satis- faction to the public being so very great ; that as the public crime is not otherwise avenged than by forfeiture of life and property, it is impossible afterwards to make reparation for the private wrong, which can only be had from the body or goods of the aggressor." In England, after forfeiture, there is nothing left for the creditors, of the felon. In this State, the fund out of which creditors may expect payment has never, as far as I know, been diminished. But it is said that the law is" founded in policy which postpones or suspends the claims of individuals until the acquittal or conviction of the person charged with the felony, (12 East, 409,) for otherwise felony would go unpunished. 1 Hale, 546. The same evidence which showed a felony had been committed was also the foundation of the king's claim by forfeiture ; and to this claim of the king that of the individual was obliged to yield, until the question was settled whether a felony had been committed or not. If a felony had been committed, the claim of the individual was hopeless, for the reason before given ; if no felony was com- mitted, the king's claim was at an end, and the individual was at liberty to pursue the aggressor by suit. This appears to me to be the true reason why the suit of the individual was suspended until the issue of the prosecution for felony was known. Policy does not suspend the individual's right of suing, where offences are committed that are not felonies ; as in perjury, forgery, or even in capital cases that are not declared felonies. 4 Bl. 97. If r then, policy dictated the rule, it was a policy intimately connected^with and Strongly al- lied to the king's interest to forfeitures upon conviction. But in England, when the king's claim was at an end, the individual's claim was available ; so, I think, in this State, when the public asserts no claim by forfeiture, the claim of the citizen should be available. But if I am mistaken as to this rule of policy, the record states that the plaintiff, by consent of the attorney-general, preferred a bill of indictment against the defendant, and the grand jury returned it "not a true bill;" and they did so, for aught that appears to this court, without any collusion or fraud on the part of the plaintiff. That being the fact, I think, in the spirit of that rule of policy, he is entitled to his action. The grand jury were the only and ororjer LEADING CRIMINAL CASES. 31 Felony — Merger — Civil Remedy. tribunal from which a prosecution for the felony could originate. The plaintiff had no control over their finding. It is true that finding is no bar to another prosecution ; but if the plaintiff has acted without fraud, and no other witnesses can be pro- cured to go before the grand jury, it is conclusive on him. As to the objection, that the same evidence which has enabled the plaintiff to recover this verdict, would have induced the grand jury to find the bill of indictment " a true bill," I cannot give any solution or expla- nation which I know to be founded in fact ; but I can readily con- jecture how such a thing might happen ; witnesses must go before the grand jury in person, but if they cannot be procured, their depo- sitions, under certain circumstances, may be read on a trial in a civil action. The case of Goddard v. Smith, 1 Salk. 21, has been read to show that it was not sufficient that the bill of indictment should have been returned " not a true bill ; " but that there should have been either a conviction or acquittal upon it. That was an action for a malicious prosecution, where the plaintiff alleged in his declar- ation that he was in due form of law acquitted on the indictment The record showed that a nolle prosequi had been entered ; the. court said the record did not support the declaration, for the nolle prosequi was a discharge from the indictment, but not an acquittal of the crime. But they did not say that if it had been set forth in the declaration, that a nolle prosequi had been entered, and the record had supported that allegation, that the plaintiff could not go on with his suit, because the prosecution had not been finally decided upon. I think the plaintiff is entitled to judgment. Henderson, J. If A. steals the goods of B. and sells them to C, B. may recover the goods of C. before A. is convicted or acquitted of the felony ; but if B. sells the goods to C. in market overt, B. could not, at common law, recover the property either before or after the conviction of A. ; for the sale in market overt changed the property ; in neither case, that is, either before or after the conviction at com- #on law, could A. recover them of B., the thief. If policy and not forfeiture occasioned the merger, why could B. sustain his action against C, where they were not sold in market overt, and not against A. ? Policy requires the conviction or acquittal of A., as much in the case where the goods are found in the possession of C. as when found in A.'s possession. If policy alone governed, the inducement to prosecute offenders should operate in both cases ; there is as much necessity in the one case as the other. But at the common law there was no inducement to prosecute to a conviction, for before the statute of Hen. 8, the goods were lost to the owner upon a con- 32 LEADING CKIMUSTAL CASES. Felony — Merger — Civil Remedy. viction ; the former owner could not reclaim them even from the thief; it was his interest to prosecute, but not to convict. What had policy, then, to do with encouraging an honest prosecution? It was on the other side. But that statute repeals the common law in cases where the former owner aids in the prosecution, by award- ing a restitution ; but the law of merger was in force long before the passing of this statute, and it is the influence of this statute which sustains the owner's right to the goods after a sale in market overt, for it gives restitution of the goods ; it acts in rem, on the thing, and annuls the common law effect of a sale in market overt. By the statute of Hen. 8, the property is ordered to be restored to the owner who aids in the prosecution, and it is his whenever found and under whatever circumstances. Upon a conviction, in an appeal of rob- bery, the appellant might obtain his goods, if in the hands of the felon ; but before the statute, it affected not sales in market overt. The statute may since have been extended to convictions on appeal. I have not examined, nor is it necessary in this case. This is almost enough, if not quite, to prove that the law of merger is not founded on policy alone. But further, it is confined in its operation to cases of felony, that is, to cases of forfeiture; for all felonies amount to a forfeiture ; are there, then, no other crimes which the policy of the law forbids being compromised, or where inducements should not be held out for a prosecution ? Forgery, perjury, every species of the crimen falsi, heresy, which latter was punished with death ? In none of these is there a merger. For what reason are not some of them as atrocious as the lesser larcenies ; for instance, petty larceny, or even the stealing above the value of twelvepence ? Why, then, does the law of merger not prevail in that case ? Be- cause there is no forfeiture. When we see the law of merger inva- riably follow the law of forfeiture, as the shadow does the substance, and never find it where forfeiture is not, it is a strong reason to be- lieve that it is founded upon it, and grows out of it. For it is a maxim in most governments, at least it is so in England, that where the rights of an individual conflict with the rights or claims of the sovereign, that the rights of the individual must give way ; and $5 by forfeiture, all the goods of a felon are forfeited to the king, even those which were the subject of the prosecution, and for the stealing of which he was convicted, to sustain an action against him would impair the rights of the crown, as thereby the fund to be forfeited upon conviction would be lessene'd. If policy forbids the action, I should think it might be pleaded, and yet we find no such plea ; for it appears to me that the maxim nemo audiendus est suam turpitudi' new, allegare does not apply to such cases where policy forbids the act, for it is better that a man should shield himself by his own in- LEADING CRIMINAL CASES. 33 Felony — Merger — Civil Remedy. famy, than that the public policy should be violated. The manner in which it is got at shows that it forms no defence ; that the sover- eignty acts without regard to the defendant's benefit. If it appears in the declaration, the defendant demurs ; this is not offering this as defence, it already appears ; the demurrer calls the attention of the court to it. So, if moved in arrest of judgment ; but it is never pleaded. If it appears by the evidence on the trial, the court (thai^ the rights of the crown may not be diminished) directs the jury to* acquit the defendant. Upon the whole, I think that forfeiture, and not policy alone, gave rise to the doctrine of merger. "Whether the law of forfeiture is still in force in cases where the State insists on such right, I think it is entirely unnecessary to decide. But I am not disposed to postpone doing justice to the plaintiff, in expectation that by so doing I shall impair the rights of the State, by lessening the felon's estate, when the State comes to claim the forfeiture ; for it would be a vain and fruitless expectation, for the State has not, for at least half a century, and perhaps for a much longe» time, in a single instance, asserted that right. Therefore I say, whatever may be her actual rights, if she thought proper to en- force them, I cannot consent to delay doing justice to this plaintiff, lest I should interfere with the claims of the State, when, from the former consent of the State, it is reduced to a moral certainty that no such claim will be asserted. I do not think it necessary to give any opinion on the other point, to wit, that even if the rule of merger be founded on policy, that enough has been done by the plaintiff in causing a bill of indictment to be preferred against the defendant, which the grand jury refused to find ; but would observe, that if, in England, an acquittal before the petit jury was required, that such rule might not apply here ; for there, if the attorney-general will not prosecute, or the grand jury will not find a bill, yet the person injured may still bring the offender before a petit jury by a prosecution entirely under his control, to wit, an appeal ; and that the most rigorous policy could not require more in either country than the utmost exertions of the injured party to bring the offender to justice. In this country the injured party's utmost efforts end with an honest exertion before the attorney- general, or before the grand jury. In England, more may be re- quired of him, because there he can do more — a trial before a petit j ur y — for by his own act he can effect that. But for the reasons given in the foregoing part of this opinion, I think that the judgment of the court below should be reversed, and judgment given for the plaintiff. I am aware that Lord Ellenborough, in 12 East, founds the doc- trine on policy. Whatever falls from that great judge deserves great 34 LEADING CRIMINAL CASES. Felony-^- Merger — Civil Remedy. weight ; but it is a mere dictum, not necessary to the decision of the case, it being an action brought to recover damages for, an injury received by stabbing. The judge reported that it was within the statute, and therefore a felony, but the defendant had been acquitted- The question was, could the action be sustained ? It was adjudged that it could ; for let it be founded on forfeiture or policy, there was no merger ; the acquittal barred future prosecutions, therefore there *could be no forfeiture. The policy of the law was complied with> for there had been a prosecution, and if not conducted with good faith, it might be shown. See 2 Term Rep. 750, Horwood v. Smith. Offences made capital by statute and not declared to be felonies, do not cause the trespass to merge ; but where it is made a felony they do. I think that judgment should be rendered for the plaintiff. It was undoubtedly a principle of , the ancient English common law, that the civil remedy of an individual for goods stolen from him, was 'materially affected by the supposed prior and superior rights of the public against th6 guilty party ; and this effect was often described by saying that the civil remedy was merged in the felony. This language may or may not properly characterize the effect and con- sequence of the commission of a felony upon the private rights of the party in- jured ; but it is perfectly clear upon the ancient authorities, that a civil action could not be sustained against the offender until he had been tried upon a criminal complaint, and final judgment had been rendered therein. Gimson v. Woodfull, 2 Carrington & Payne, 41. And this doctrine was held equally to apply to cases of forgery, aggravated assaults, and any other acts which then amounted to felony. See Cooper v. Witham, 1 Levinz, 247; 1 Siderfin, 375; 2 Keble, 399, which was a case 'against a woman for falsely affirming herself to be sole, and thus in- ducing the plaintiff to marry her. See also Biggins v. Butcher, Metcalf 's Yelver- ton, 90 a, note 2. But it was only in cases of treason or felony that the rule obtained, and mayhem, (except f by castration,) was not at common law a felony, and not with- in the rule. Adams v. Barrett, 5 Georgia, 404 ; Commonwealth v. Newell, 7 Massa- chusetts, 245. Neither was piracy. Monro V. Almeida, 10 Wheaton, 495. The reason of the rule was sometimes said to 'be, that if the defendant had com- mitted a felony he had thereby worked a forfeiture to the king of all his lands and goods, and therefore it was of no advan- tage to the individual to allow him a civil action, since a judgment therein could bring him no satisfaction for want of goods whereon to levy his execution ; and as death was also the punishment for felony, the body of the offender could not be taken in execution. The remedy by action therefore would be entirely fruit- less. And a passage in Kelyng's R. 48, tends to support this view. " If goods be stolen, and not waived in flight, nor seized by some of the king's officers as suspected to be stolen, then the party robbed may take his goods or bring an action for them, although he doth not prosecute. But if the goods be waived by the felon in his flight, or in case they be not waived, yet if they be seized by any of the king's officers as suspected to be stolen, then the party shall not have restitution unless the thief be convicted at his prosecution." See 5 Coke, R. 109. But the most common, and probably the true ground was, not that the civil remedy was merged in the felony, and so forever gone ; but that from principles of public policy, courts would not sustain LEADING CEIMINAL CASES. 35 Felony — Merger — Civil Remedy. private actions in such cases, until the party injured had done all in his power to bring the offender to the bar of public justice; and Lord Ellenborough, C. J., in Crosby v. Leng, 12 East, 418, thus assigns the reason of the rule : The policy of the law requires that before the party in- jured by any felonious act can seek civil redress for it, the matter should be heard and disposed of before the proper crimi- nal tribunal, in order that the justice of the country may be first satisfied in re- spect to the public offence ; and Grose, J., assigns substantially the same reasons. Consequently, in accordance with this latter doctrine, it has generally been held in England that if the offender has been prosecuted to conviction, the party in- jured might then sustain his action for damages. In Markham v. Cobb, Noy, 82; Latch, 144; W. Jones, 147, the action •was trespass for carrying away £3,000 of the plaintiff's money. The defendant pleaded that he had been indicted for the same offence and convicted, and " de- manded judgment if an action should be brought against him; for nemo debet bis puniri pro uno delicto." But the court held the plea in bar " naught," and gave judgment for the plaintiff. Dawlces v. Coveneigh, Style, 346, is precisely simi- lar. See also Grafton Bank v. Flanders, 4 New Hampshire, 243. And so after con- viction of the felon, the injured party might have a remedy against any one purchasing from the felon in good faith. Peer v. Humphrey, ,2 Adolphus & Ellis, 495. But if the defendant bought the property in market overt, and sold it again before conviction of the felon, he was not liable to the true owner, even after conviction of the wrongdoer. The owner must look to the person in possession at the time of the attainder ; Horwood v. Smith, 2 Term K. 755 ; and see Harris v. Shaw, Hard- wicke, by Annaly, 335 ; Golightly v. Rey- nolds, Lofft, 88. And the same rule obtains, although the party accused was acquitted of the criminal charge, if the plaintiff was guilty of no collusion in pro- curing the acquittal. Crosby v. Leng, 12 East, 409. Smith v. Weaver, 1 Taylor, 58. If, however, the guilty party has been acquitted through the exertions of the plaintiff, this has been held in this country a perfect bar to the civil remedy. Morgan v. Rhodes, 1 Stewart, 70. But • the reason of the rule as before assigned, viz., that a party should not have a civil remedy until he had done all in his power to bring the offender to public jus- tice, seems to have been lost sight of in the recent cases in England, or at least con- sidered not to apply to an action by the true owner against one who innocently purchases of the party committing the felony. And the modern decisions fully settle the point, that a party, losing goods by theft, may sustain trover against a person purchasing of the thief in good faith, although the plaintiff had taken no steps to bring the thief to justice. While v. Spetiigue, 13 Meeson & Welsby, 603 ; Marsh v. Keating, 1 Bingham's N. C. 198 ; Stone v. Marsh, 6 Barnewall & Cress- well, 551. In this latter case, Lord Ten- terden thus satisfactorily explained the law on this subject : — " There is, indeed, another rule of the law of England, viz., that a man shall not be allowed to make a felony the founda- tion of a civil action ; not that he shall not maintain a civil action to recover from a third and innocent party that which has been feloniously taken from him ; for this he may do if there has not been a sale in market overt ; but that he shall not sue thefelon; and it may be admitted that he shall not sue others, to- gether with the felon, in a proceeding to which the felon is a necessary party, and wherein his claim appears by his .own showing to be founded on the felony of the defendant. Gibson v. Minot, 1 Henry Blackstone, 612. This is the whole extent of the rule. The rule is founded on a prin- ciple of public policy,; and where the public policy ceases to operate, the rule shall cease also. The familiar phrase, "the action is merged in the felony," is not at all times and literally true. Now public policy requires that offenders against the laws shall be brought to justice, and for that reason a man is not permitted to 36 LEADING CKIMINAL CASES. Felony — Merger — Civil Kemedy . abstain from prosecuting an offender by receiving back stolen property, or any equivalent or composition for a felony without suit, and, of course, cannot be allowed to maintain a suit for such a pur- But, although by the ancient common law, an action would not lie to recover the goods, the loser might obtain them by a writ of restitution. For, by the ancient law, if one guilty of robbery be convicted on an appeal of robbery, which was a suit of the party, the owner was entitled to a restitution of the goods. 19 Viner's 1 Abr. Restitution, 153. But this was not the case on indictments until a statute was passed in 21 Henry 8, ch. 11, enacting " That if any felon or felons hereafter do rob or take away any money, or goods, or chattels from any of the king's subjects, from their persons or otherwise, within this realm, and thereof the said felon or felons be indicted, and after arraigned of the same felony, and found guilty thereof, or otherwise attainted- by reason of evi- dence given by the party so robbed, or owner of the said money, goods, or chat- tels, or by any other, by their procure- ment, that then the party so robbed, or owner, shall be restored to his said money, goods, and chattels ; and that as well the justices of jail-delivery, as other justices, afore whom any such felon or felons shall be found guilty, or otherwise attainted, by reason of evidence given by the party so robbed, or owner, or by any other by their procurement, have power, by this present act, to award, from time to time, writs of restitution for the said money, goods, and chattels, in like manner as though any such felon or felons were at- tainted at the suit of the party in appeal." And a form of the writ of restitution in such cases, may be found in Burgess v. Corey, 1 Tremaine's P. C. 315. In prac- tice, the writ of restitution was rarely issued, and the stolen goods were gener- ally restored by order of the court upon conviction of the felon. See Noy, 128. On this side the Atlantic, the English rule has sometimes been adopted in all its rigor. Thus in Foster v. Tucker, 3 Green- leaf, 458, the Supreme Court of Maine said : The principle of law is, that when a felony is committed which generally and perhaps uniformly includes a civil injury, the latter is merged in the public offence. The claims of the public are deemed para- mount to those of individuals, who are not permitted even to reclaim their own prop- erty, known and identified, which has been taken possession of by the ofEcers of jus- tice, where a felony has been committed, unless restitution shall have been ordered by the competent authority, after the con- viction of the offender, or where it may be done consistently with the public inter- est. After conviction, however, the pur- poses of public justice being accomplished, the law permits the individual injured to vindicate his rights by an apt civil remedy. And the plaintiff having brought an ac- tion of assumpsit for goods sold, and for money had and received, he was nonsuited. Although the decision in this case was probably correct, since the action being assumpsit, and the defendant a tort feasor, the form of the action was wrong ; yet the court adopt and approve the English rule. The subsequent case of Boody v. Keating, in the same court, 4 Greenleaf, 164, was however an express decision to the point. There the action was 'trover for a. bag of money stolen by the defend- ant. The latter had been convicted of the larceny and sentenced, after the action was commenced, and before the trial. The court held, upon the English authorities, that the action was commenced too soon, and the plaintiff was nonsuited. Weston, J., observed : The ancient doctrine of merger, being founded upon the feudal principle, of forfeiture, and upon the para- mount claims of the king, as well as from the nature of the punishment, which went to the life of the guilty party, may be con- sidered as inapplicable here. But it is by no means so. manifest that the principles of public policy, which have been the basis of the later English decisions, ought not in this country to produce the same result. ... In support of the argument on the part of the counsel for the plaintiff, the opinion of Chief Justice Parker in LEADING CEIMINAL CASES. 37 Felony — Merger — Civil Remedy. Boardman v. Gove et al. 15 Massachu- setts, 336, has been adduced. If the English doctrine as there stated by him, as we believe for sound reasons, is limited to larcenies and robberies, it was. inappli- cable to the case then under consideration. The opinion, therefore, intimated by him, was not essential to the decision of that cause ; and upon consideration, we feel ourselves constrained to regard as the better opinion, that which was given by his predecessor, Chief Justice Sewall: " The public good requires that in this country, as well as in England, offenders should be brought to justice ; and if the civil remedy in favor of the party injured is postponed until a public prosecution has terminated, he will be stimulated to- effect this as speedily as possible. And he will be further induced to procure criminal process to search for and secure the goods stolen, which, if he continues faithful to the public interest, will be ultimately re- stored to him But if he is permitted to pursue his civil remedy before conviction, there may be reason to apprehend that the claims of public justice may be disregarded, which must be considered as paramount to individual interests. Besides, until after the termination of the criminal prosecu- tion, the law requiring that the goods should be seized and retained by the officer, it cannot be known what portion of those goods may be restored to the owner, which must necessarily affect the measure of damages in the civil action. It has been urged, that the conviction having taken place prior to the trial, the objection now made ought not to prevail ; but the author- ities to this point, adduced by the counsel for the defendant, clearly prove that the action cannot be maintained unless there was a right to prosecute it at the time of its commencement." Crowell v. Merrick, 19 Maine, 3 9 2, adopts and acts upon the same doctrine. Belknap v. MWcen, 23 Maine, 381, is to the same effect. The legislature of Maine, in March, 1844, passed an act, giving the party redress in cases of stolen property, although the offender may not have been convicted of the theft or larceny. This statute applies to only one class of felonies, and it yet remains to be seen 4 whether the ancient common law does not still obtain in that State, as to all civil actions in which any other felony than larceny is involved. The supreme court of Alabama have followed the same rule. McGrewv. Cato, Minor, 8; Middlelonv. Holmes, 3 Porter, 424 ; Martin v. Mar- tin, 25 Alabama, 201 ; Blackburn v. Min- ter, 22 Alabama, 613. And Georgia like- wise ; Adams v. Barrett, 5 Georgia, 404 ; Neal v. Farmer, 9 Georgia, 555. See McBain v. Smith, 13 Georgia, 315. The supreme court of New Brunswick, also, has adopted the same doctrine, and gone still further than the English courts, de- nying to a party injured a remedy, not only against the felon, but also against a third person, a purchaser from the original wrongdoer. Pease v. McAloon, 1 Kerr, 111. This case, it will be seen, is in direct conflict with White v. Speltigue, 13 Meeson and Welsby, 613, before cited, but decided about eight months afterwards. The court relied principally upon Gimson v. Woodfull, 2 Carrington & Payne, 41, which has since been overruled in Eng- land. We know of but one case more in America, on this side of this question, and that is a case at Nisi Prius, before Sewall, C. J., of Massachusetts, (1818,) in which he nonsuited a party who had brought trover for goods stolen from him, the de- fendant being then under indictment for receiving the same gpods, knowing them to have been stolen ; but we conceive this cannot be the law of Massachusetts, for notwithstanding this case, the same court, in banc, held entirely different doctrines in the case of Boardman v. Gove, 15 Mas- sachusetts, 336. That action was assump- sit on a note made by the defendants pay- able to A., and purporting to be indorsed by A. to the plaintiff; but this indorsement the defendants had forged. This was re- lied upon by the defendants as a defence to the action, and the English cases before cited were referred to. This defence was not sustained by the court, and Parker, C. J., after stating the doctrine as it had been held in England, and the grounds thereof, said : " These reasons do not exist with us. There is no forfeiture of lands or goods on conviction of crimes ; nor is there any 38 LEADING CEIMINAL CASES. Felony — Merger — Civil Remedy. recompense provided by the public ; nor is the criminal party punished with death. So that, in many cases, the injured party may have a remedy against the person, and in all cases against the estate of the person who did the wrong ; and this is surely better than to suffer his estate to go to his heirs, perhaps swelled by the very depredations for which it is said he is not answerable civiliter. It is laid down in Bacon's Abridg- ment, tit. Action on the Case, K, that a person guilty of felony, and pardoned, or burnt in the hand, may be proceeded against in a civil action, at the suit of the party in- jured ; although it is said that no action can be brought whilst the party is under indictment for the same crime. And the reason given is, that it might hinder all exemplary punishment; and Style, 346, is cited for this latter position. Perhaps the true position is, that until the party is pardoned, or has received the benefit of clergy, it is to be supposed that he will forfeit his life and all his estate to the king. But whatever may have been the reason on which the common law doctrine was founded, it is plain that the reason has ceased with us ; and cessante ralione cessat et ipsa lex. In the few cases of felony which are punished with death here, it may be that the principle is still in force ; so far as that the felon may not be sued in a civil action until after acquittal or par- don. For if conviqted, he will be exe- cuted ; and as all felonies include a tres- pass, the action dies with him. But there seems to be no reason why the injured party may not have an action for his damages where the wrongdoer is living, and has estate sufficient to compensate the wrong." The views here expressed were fully adopted and acted upon in Tennessee in Ballew v. Alexander, 6 Humphreys, 433 ; which was trespass for an assault and bat- tery. Plea, that the defendant was under indictment for the same act, which was yet undetermined. Demurrer and joinder. The plea was held no defence. So in Robinson v. Gulp, 1 Constitutional, R. 231 ; the court of South Carolina approved the same doctrine, and Nott, J., assigns an ad- ditional reason why such a defence ought not to be set up, viz., that the question of a felony ought not to be tried in that collateral way. Judge Story has also added the weight of his opinion to the great force and strength of the reasoning of Boardman v. Gore, in The Ocean Ins- Co. v. Fields, 2 Story, 74. The American doctrine, if it may be so termed, has also been approved in New-' Hampshire, Pettingill v. Rideout, 6 New Hampshire, 454; — in Connecticut, Cross v. Cutliery, 2 Root, 90; — in New Jersey, Pattern v. Freeman, 1 Coxe, 113 ;— in Ken- tucky, Blassingame v. Glaves, 6 B. Monroe, 38 ; — in Ohio, Story v. Hammond, 4 Ham- mond, 376 ; — in North Carolina, Smith v. Weaver, 1 Taylor, 58 ; 2 Haywood, 108 ; — in Missouri, Nash v. Primm, 1 Missouri, ' 178 ; Mann v. Trabue, 1 Missouri, 709 ; — in Texas, Mitchell v. Mims, 8 Texas, 6. So in Pennsylvania, see Piscataqua Bank v. Furnley, 1 Miles, 312. In this case the defendant had stolen a quantity of money from the plaintiff, to recover which an action had been brought. The court held the felony to be no defence to the suit, and explained at considerable length the origin and history of the law upon the sub- ject. See also, in the same State, Foster v. The Commonwealth, 8 Watts & Sergeant, 77. The case of Alison v. Bank of Vir- ginia, 6 Randolph, 204, is also an excel- lent case on the same side of the question. Green, J., there said : " Upon the question, whether the felony of the principal is a bar to or a suspension, until he is prose- cuted criminally, of the action on his bond, I have no doubt. I have examined with great care the English doctrine on this subject, from its origin to the present time. But, as this case is not to turn on that point, I shall not state at large the grounds of the opinion that I have formed, but confine myself to a mere summary of the result of my inquiries and reflections upon it. We find no trace of any thing like this doctrine in the books of the common law before the time of Henry 6 ; but, on the contrary, Bracton, who wrote in the time of Henry 3, lays it down, that a party in- jured by a felony may seek redress by a civil action, or an appeal of felony, which was a criminal prosecution, at his election. LEADING CEIMINAL CASES. 39 Felony — Merger — Civil Remedy. Book 3, ch. 3, § 1. And to the same effect is Fleta, book 1, ch. 38, § 1, and book 2, ch. 1, § 5, — a book written in the time of Edward 2, or Edward 3, accord- ing to Lord Coke. Proem to 10 Reports, or of Edward 1, according to Selden in his edition of Fleta, p. 547. And in the 44th Edward 3, Ass. 44, 13, judgment was given for the plaintiff in an action of trespass against several for the ravish- ment of his wife, and taking away his goods ; which was a felony at the common law, and was then also a felony by the statute of West. 2; 2 Inst. 434; 20'Viner, Abridgment, 467, X. 4, pi. 1. There is not a single adjudged case reported to this day, in which a civil action, founded on a wrong amounting to a felony, has been adjudged not to lie. On the contrary, judgments have been given for the plain- tiffs in many such cases, where the felon has been prosecuted and acquitted or con- victed, and even where he has not been prosecuted criminally. The whole doc- trine on this subject in England rests upon the dicta of the judges'thrown out arguendo, and assuming various grounds as the foun- dation of the rule. The first of these dicta is to be found in the case reported in the Tear Book, 31 Edward 6, pi. 6. That was a writ of conspiracy against several, for that they had indicted the plaintiff of an assult upon B., and beating and wound- ing him, etc., and feloniously stealing from his purse, four shillings, of which he was acquitted. An objection was taken to. the action, that it did not lie for a conspiracy in indicting the plaintiff of an assault, battery, and wounding. To this it was answered, that all these matters being con- tained in one indictment, an- acquittal of the felony was an acquittal of the trespass ' quia magis dignum trahit ad se minus dignum,' and ' felony is of a higher nature than trespass,' and ' if one come to*my house to rob me, and breaks my house, and takes the goods or not, the robbery and breaking of the house are one felony ; and if he be acquitted of the felony he is acquitted of the trespass also.' Brooke, in abridging this case, says, ' it was agreed that if a man be indicted, arraigned, and acquitted of robbery of J. S., he shall not thereof have trespass ; for, the trespass is extinct in the felony, and omne majus trahit ad se minus. Quaere inde.' This is the origin of the rule, founded upon the doctrine of merger, and a mere dictum ; and it had, if true, the effect of barring the civil action for the tort, under all pos- sible circumstances. Yet, this doctrine was abandoned in the first case which occurred, of an action brought after a con- viction of the defendant upon an indict- ment ; ' because (as it was said) the party had thereby lost his remedy by appeal ; ' and so it has been held, that the civil action lies after an acquittal on an indict- ment ; thus shifting the foundation of the ruie from the ground that the trespass it- self was merged and lost in the felony, to the other, that the inferior remedy by a civil action was merged in the superior remedy by appeal, (which was a criminal prosecution,) and allowing that when the higher remedy was lost, the inferior rem- edy revived. And in modern times, the judges, admitting the existence of the rule, have abandoned this latter ground also, and placed it upon the broad footing of public policy, and the interest of the public in encouraging and coercing individuals to engage in the prosecution of crimes. In- deed, there seems to be good reason for the doctrine of modern times upon this subject in England. It is in conformity with the severe spirit of their laws in re- spect to the prosecution and punishment of crimes, which has always urged individ- uals, by various inducements, to the pros- ecution of crimes; by the forfeiture of stolen property to the king in case of a conviction, without the intervention of the party and fresh suit on his part; or to the lord of the manor, when the property is ■waived by the felon and seized as waif; enlisting the passions of private revenge, by allowing an appeal at the suit of the party, in which, if there was a conviction, the king could not pardon ; by making the Hundred liable, if the party made fresh suit, and hue and cry, and the felon was not arrested; but not otherwise. In all these respects, the policy and spirit of our laws are the reverse of those of the Eng- lish laws. We have no appeal, in which the right to a civil action can merge. We have no forfeiture to the public of the 40 LEADING CEIMINAL CASES. Felony — Merger — Civil Kemedy. stolen goods, or even of those of the felon ; no fresh suit, or active prosecution, on the part of the injured person, is required by our laws, to entitle him to restitution. We have no law of waifs, nor any sub- jecting the Hundred to make satisfaction in any case ; and our law, upon the whole, rather discourages than invites individual prosecutions. And I am persuaded that the object of promoting the prosecution of crimes would be more promoted by allow- ing the injured individual to prosecute his civil action uninterruptedly, and thus ex-* pose all the circumstances of the transaction to the officers of the law, who are bound, ex officio, to prosecute for the public, than by holding out strong inducements to both parties to compound the felony by throwing impediments in the way of the civil rem- edy. The rule in question has never been practically extended, or distinctly declared to extend to any case in which the suit was not against the felon himself, and founded on the felonious act, as the gist of the action ; nor to third persons guilty of no crime, nor to any action founded on contracts." The whole subject was elaborately ex- amined by Bigelow, J., in the late case of Boston §• Worcester Railroad v. Dana, 1 Gray, 83. The reasons for not adopting the English rule on this subject were thus distinctly stated. " The doctrine, that all civil remedies in favor of a party injured by a felony are, as it is said in the earlier authorities, merged in a higher offence against society and public justice, or, according to more recent cases, suspended until after the ter- mination of a criminal prosecution against the offender, is the well settled rule of law in England at this day, and seems to have had its origin there at a period long ante- rior to the settlement of this country by our English ancestors. Markham v. Cob, Latch, 144, and Noy, 82 ; Dawlces v. Coveneigh, Style, 346 ; Cooper v. Witham, 1 Siderfin, 375, and 1 Levinz, 247 ; Crosby v. Leng, 12 East, 413 ; White v, Spettigue, 13 Meeson & Welsby, 603 ; 1 Chitty, Crim. Law, 5. But although thus recognized and. estab- lished as a rule of law in the parent coun- try, it does not appear to have been, in the language of our constitution, ' adopted, used, and approved in the province, colony, or State of Massachusetts Bay, and usually practised on in the courts of law.' The only recorded trace of its recognition in this commonwealth is found in a note to the case of Higgins v. Butcher, Yelyerton, (American ed.) 90 a, note 2, by which it appears to have been adopted in a case at nisiprius by the late Chief Justice Sewall. The opinion of that learned judge, thus expressed, would certainly be entitled to very great weight, if it were not for the opinion of this court in Boardman v. Gore, 15 Massachusetts, 338, in which it is strongly intimated, though not distinctly decided, that the rule had never been reeognized in this State, and had no solid foundation, under our laws, in wisdom or sound policy. Under these circumstances, we feel at liberty to regard its adoption or rejection as an open question, to be deter- mined, not so much by authority, as by a consideration of the origin of the rule, the reasons on which it is founded, and its adaptation to our system of jurisprudence. " The source, whence the doctrine took its rise in England, is well known. By the ancient common law, felony was pun- ished by the death of the criminal, and the forfeiture of all his lands and goods to the crown. Inasmuch as an action at law against a person, whose body could not be taken in execution and whose property and effects belong to the king, would be a useless and fruitless remedy, it was held to be merged in the public offence. Be- sides; no such remedy in favor of the citizen could be allowed without a direct interference with the royal prerogative. Therefore a party injured by a felony could originally obtain no recompense out of the estate of a felon, nor even the restitution of his own property, except after a conviction of the offender, by a proceeding called an appeal of felony, which was long disused, and wholly abolished by statute 59 George 3, ch. 46 ; or under statute 21 Henry 8, ch. 11, by which the judges were empowered to grant writs of restitution, if the felon was con- victed on the evidence of the party in- jured, or of others by his procurement. 2 Carrington & Payne, 43, note. But LEADING CRIMINAL CASES. 41 Felony — Merger — Civil Remedy. isted in this State, were discontinued at a very early period in our colonial history. Forfeiture of lands or goods, on conviction of crime, was rarely, if ever, exacted here ; and in many cases, deemed in England to be felonies and punishable with death, a much milder penalty was inflicted by our laws. Consequently the remedies, to which a party injured was entitled in cases of fel- ony, were never introduced into our juris- prudence. No one has everheard of an ap- peal of felony, or a writ of restitution under statute 21 Henry 8, ch. 11, in our courts. So far therefore as we know the origin of the rule and the reasons on which it was founded, it would seem very clear that it was never adopted here as part of our com- mon law. Without regard however to the causes which originated the doctrine, it has been urged with great force and by high authority, that the rule now rests on public policy — 1 2 East, 413,414; that the interests of society require, in order to secure the effectual prosecutions of offenders by per- sons injured, that they should not be per- mitted to redress their private wrongs, until public justice has been first satisfied by the conviction of felons ; that in this way a strong incentive is furnished to the individual to discharge a public duty, by bringing his private interest in aid of its performance, which would be wholly lost, if he were allowed to pursue his remedy before the prosecution and termination of a criminal proceeding. This argument is doubtless entitled to great weight in Eng- land, where the mode of prosecuting crim- inal offences is very different from that adopted with us. It is there the especial duty of every one, against whose person or property a crime has been committed, to trace out the offender, and prosecute him to conviction. In the discharge of this duty, he is often compelled to employ counsel ; procure an indictment to be drawn and laid before the grand jury, with the evidence in its support ; and if a bill is found, to see that the case on the part of the prosecution is properly con- ducted before the jury of trials. All this i to be done by the prosecutor at his own cost, unless the court, after the trial, shall deem reimbursement reasonable. 1 Chitty, 4* Crim. Law, 9, 825. The whole system of the administration of criminal justice in England is thus made to depend very much upon the vigilance and efforts of pri- vate individuals. There is no public offi- cer, appointed by law in each county, as in this commonwealth, to act in behalf of the government in such cases, and take charge of the prosecution, trial, and con- viction of offenders against the laws. It is quite obvious that, to render such a sys- tem efficacious, it is essential to use means to secure the aid and cooperation of those injured by the commission of crimes, which are not requisite with us. It is to this cause, that the rule in question, as well as many other legal enactments, designed to enforce upon individuals the duty of pros- ecuting offences, owes its existence in England. But it is hardly possible, under our laws, that any grave offence of the class designated as felonies can escape detection, and punishment. The officers of the law, whose province it is to prosecute criminals, require no assistance from per- sons injured, other than that which a sense of duty, unaided by private interest, would naturally prompt. On the other hand, in the absence of any reasons, founded on pub- lic policy, requiring the recognition of the rule, the expediency of its adoption may well be doubted. If a party is compelled to await the determination of a criminal pro- secution before he is permitted to seek his private redress, he certainly has a strong motive to stifle the prosecution and com- pound with the felon. Nor can it contrib- ute to the purity of the administration of justice, or tend to promote private moral- ity, to suffer a party to set up and main- tain in a court of la*w, a defence founded solely upon his own qriminal act. The right of every citizen under our constitu- tion, to obtain justice promptly and with- out delay, requires that no one should be delayed in obtaining a remedy for a private injury, except in a case of the plainest public necessity. There being no such necessity calling for the adoption of the rule under consideration, we are of opinion that it ought not to be ingrafted into our jurisprudence." E. II. B. 42 LEADING CRIMINAL CASES. * Criminal Negligence — Manslaughter — Misadventure. Rex v, John Hull. 1 January 13, 1664. Criminal Negligence — Manslaughter — Misadventure. If a person employed on a building situated thirty feet from the highway, throw down a piece of timber, having first cried out to stand clear, and the timber fall upon another and kill him, this is not manslaughter, but misadventure merely. Miter, it seems, if the house had been directly upon a constant thoroughfare. In the sessions in the- Old Bailey, holden the 13th of January, 1664, one John Hull was indicted for the murder of Henry Cambridge ; and, upon the evidence, the case was, that there were several work- men about, building of a house by the horse-ferry, which house stood about thirty feet from any highway or common passage ; and Hull being a master-workman, (about evening, when the master-workman had given over work, and when the laborers were putting up the tools,) was sent, by his master, to bring from the house a piece of timber which lay two stories high ; and he went up for that piece of timber, and before he threw it down he cried out aloud, stand clear, and was heard by the laborers, and all of them went from the danger but only Cambridge, and the piece of timber fell upon him and killed him : and my Lord Chief Justice Hyde held this to be manslaughter, for he said he should have let it down by a rope, or else, at his peril, be sure nobody is there. But my' brother Wylde and myself held it to be misadventure, he doing nothing but what is usual with work- men to do ; and before he did it, crying out aloud, stand clear, and so gave notice, if there were any near, they might avoid it ; and we put the case, a man lopping a tree, and when the arms of the tree were ready to fall, calls out to them below, take heed, and then the arms of- tKe tree fall and kill a man, this is misadventure, and we showed him Poulton de pace, 120, where the case is put, and the book cited, and held to be misadventure ; and we said this case in question is much stronger than the case where one throws a stone or shoots an arrow over a wall or house, with which one is slain ; this, in Kelloway, 108 and 136, is said to be misadventure. But we did all hold that there was a great difference 'twixt the case in question, the house from which the timber was thrown standing thirty feet from the highway or common footpath, and the doing the same act in the streets of London ; for we all agreed, that in London, that if one be a cleansing of a gutter, call out to stand aside, and then ' l Kelyng, 40. LEADING CEIMINAL CASES. 43 Criminal Negligence — Manslaughter — Misadventure. throw down rubbish, or a piece of timber, by which a man is killed, this is manslaughter; being in London, there is a continual con- course of people passing up and down the streets, and a new pas- senger, who did not hear him call out, and therefore the easting down any such thing from a house into the streets, is like the case where a man shoots an arrow or gun into a market-place full of people, if any one be killed it is manslaughter ; because, in common presumption, his intention was to do mischief, when he casts or shoots any thing which may kill among a multitude of people ; but in case that an house standing in a country town where there is no such .frequency of passengers, if a man call out there to stand aside, and take heed, and then cast down the filth of a gutter, &c, my brother Wylde and I held that a far differing case from doing the same thing in London. And because my Lord Hyde differed in the principal case, it was found specially ; but I take the law to be clear that it is but misadventure." In a former note it was stated, that to render any act criminal, it must be done ■with criminal intent ; but that such crimi- nal intent might be, and generally should be, inferred from any wanton or reckless conduct which resulted in an injury to another's rights. For, as every one is, by law, presumed to intend the natural and ordinary consequence of his acts, if, there- fore, he is guilty of that degree of neg- ligence which naturally and ordinarily leads to a certain result, he must be con- sidered to have actually intended such result, and he is criminally responsible, as justly as if his conduct proceeded from actual malicious motives. Accordingly, we find it a well established principle of criminal law, that if injuries are caused to a person's life or health, by acts which, if wilful, would be punishable as crimes, the offender cannot screen himself from crim- inal responsibility, under the plea that such injury was caused by his negligence merely, and without positive malicious motive. The degree of the crime may not be the same as if the act was done with actual malice, but the character of a crime still remains, and the perpetrator is liable to be arraigned at a criminal bar. The care of the common law for the life of every subject, and the necessity of care and watchfulness on the part of those to whom the life or health of the citizen is intrusted, or in whom trust and con- fidence is placed, is well illustrated by the case of Rex v. Carr, tried at the Old Bailey, in 1832, before Mr. Baron Bay- ley, Justice Patteson, and Baron Gurney, on an indictment for manslaughter. The prisoner was an iron-founder, and was employed to cast some cannon. One of them, on being fired, burst, and was sent back to "be recast. Instead of recasting it the maker filled up the hole with lead, and returned it. On being again fired, it burst the second time, and killed the de- ceased. The prisoner was convicted of manslaughter. 8 Carrington & Payne, 163. The fatal result in the above case might, and perhaps would, in common parlance, be called an accident, but the common law seeks to prevent the recur- rence of such accidents, by punishing him who is the direct and negligent author thereof. In like manner, in Rex v. Bur- ton, 1 Strange, 481, as early as 1722, it was ruled to be manslaughter when a person came to town in a chaise, and be- fore he got out, he fired his pistols, which, by accident, (as the report goes,) killed a woman. Still stronger is the case of Tes- symond, in 1828, who was apprentice to a chemist, and who, being applied to for a phial of paregoric, delivered laudanum in 44 LEADING CRIMINAL CASES. Criminal Negligence — Manslaughter — Misadventure. its stead. The laudanum was adminis- tered to a child, which caused its death. The phial was also labelled " Paregoric." The chemist swore that in his shop the laudanum bottle and the paregoric bottle stood side by side, and that a person not very conversant might mistake the one for the other. The apprentice was how- ever convicted of manslaughter, Bayley, J., saying to the jury : " If a party is guilty of negligence, and death results, the party guilty of the negligence is guilty of man- slaughter." 1 Lewin, C. C. 169. Still another illustration occurs in the same volume. A wine merchant was raising a cask of wine to an upper story of his building, by a sling around the cen- tre of the cask only. When the, end of the cask touched the floor of the fourth story it slipped from the sling, and killed two females passing under it at the time. The merchant was tried, and convicted of manslaughter, it being found a careless way of raising the cask, and that a safer way was in common use. Rex v. Rig- maidon, 1 Lewin, C. C. 180. Perhaps the most frequent instances of criminal negligence which have been made the subject of prosecution, are cases of negligence in driving horses, or in managing vessels. The exact degree of negligence which is necessary, in order to create a criminal responsibility, is not defined with perfect accuracy, but it has generally been called gross negligence, meaning, perhaps, the same as the same words in speaking of civil liability. Rex v. Timmins, 7 Carrington & Payne, 499, is one of these cases. There, two omnibuses were racing, by which one was upset, and an outside passenger was thrown off" and killed. The defence was, that the horses driven by the prisoner took fright and ran away. Patteson, J., in summing up, said : " The question here is, whether you are satisfied that the prisoner was driving in such a negligent manner, that by rea- son of his gross negligence, he had lost the command of his horses." Again : "The main questions are, were the two omnibuses racing? and was the prisoner driving as fast as he could, in order to get past the other omnibus ? and had he urged his horses to so rapid a pace that he could not control them ? If you are of that opinion, you ought to convict him ; but if his horses ran away of their own accord, without any act of his, he is enti- tled to an acquittal." But in another case, in the same volume, the negligence of the prisoner could hardly be called gross ; yet he was, under the direction of Gurney, B., and Williams, J., found guilty of manslaughter. In this case, the prisoner was a lad, but of what age does not ap- pear, and in a frolic, and without intention of doing harm to any one, pulled the trap- stick out of the front part of a cart, in consequence of which it was upset while loading, and the cartman, who was in it, putting in a sack of potatoes, was pitched backwards on the stones and killed. Rex v. Sullivan, 7 Carrington & Payne, 641. Neither does there appear to have been very gross negligence in Rex v. Grout, 6 Carrington & Payne, 629. The prisoner was charged with the manslaughter of William Monk. " A foot passenger " — • we copy the marginal note — "was walk- ing at lamplight in the carriage-road, along a public highway, when the owner of a cart, who proved to be near-sighted, drove along at the rate of eight or nine miles an hour, sitting at the time on a few sacks laid in the bottom of the cart, and ran over the foot passenger and killed him." Holland, B., in summing up, told the jury, inter alia, that there was no doubt, on the evidence, that the life of the deceased was taken away by the act of the prisoner, and the question for their consideration would be, whether the person having the care of the cart, and being a near-sighted man, conducted himself in such a way as not to put in jeopardy the lives and limbs of his Majesty's subjects. If they thought he had conducted himself properly, they would say he was not guilty, but if they thought that he acted carelessly and neg- ligently, they would pronounce him guilty of manslaughter. In Rex v. Knight, 1 Lewin, C. C. 168, the prisoner being in- dicted for manslaughter, the evidence was, that being employed to drive a cart, he sat in the inside instead of attending at the horse's head, and while he was thus sit- LEADING CRIMINAL CASES. 45 Criminal Negligence — Manslaughter — Misadventure. ting, the cart went over a child who was gathering up flowers in the road. Per Bayley, J. : The prisoner, by being in the cart instead of at the horse's head or by its side, was guilty of negligence ; and death having been caused by such negligence, he is guilty of manslaughter. The necessity of more than mere negli- gence seems to have been the opinion of Parke, J., in Rex v. Rigmaidon, 1 Lewin, C. C. 180, where the prisoner was in- dicted for manslaughter in having, by negligence in the manner of slinging a cask or puncheon, caused the same to fall, and kill two females who were pass- ing along the causeway. It appeared in evidence, that these were the modes of slinging casks customary in Liverpool. Per Parke, B., to the jury : The double slings were undoubtedly the safest mode ; but if you think the mode which the prisoner adopted, namely, that of single rope, was reasonably sufficient, you cannot convict him. And in Rex v. Allen, 7 Carrington & Payne, 154, it was held that a greater degree of negligence was necessary to create a criminal than a civil liability. In Regina v. Balloway, 2 Cox, C. C. 273, the driver of a cart was indicted for run- ning over a child in the street, and causing its death. The prisoner was standing up in a spring cart drawn by one horse, which was trotting down the slope of a hill. The reins were not in the hands of the prisoner, but loose on the horse's back. The child ran across the street, a few yards before the horse, and one wheel knocked the child down and killed it. It did not appear that the prisoner saw the child in the road before the accident. It was claimed by the prosecution, that the prisoner was responsible, in consequence of his negligence in not using reins. Erie, J., told the jury, that a party neg- lecting ordinary caution, and by reason of that neglect causing the death of an- other, is guilty of manslaughter ; and that, if the prisoner had reins, and by using them could have saved the child, he was guilty ; but if he could not have saved it by pulling the reins, or otherwise by their assistance, they should acquit the prisoner. And he was acquitted. The question of negligence or not is always a question of fact for the jury, and they are the sole judges of the question, being always governed by the peculiar circum- stances of each case. But it has been laid down to the jury by a learned judge, in one ease, to be -the duty of a person driv- ing through the streets, where there is an unusual concourse of people, to take more than ordinary precautions against accidents, and to use more than ordinary diligence for the safety of the public. Regina v. Murray, 5 Cox, C. C. 509. See, also, Kennedy v. Way, Brightly, 186. In close analogy with injuries produced by negligent driving, are those caused by unskilful or negligent navigation of ves- sels ; and in Regina v. Taylor, 9 Carring- ton & Payne,, 672, Parke, B., said : There. is no doubt that those who navigate the River Thames improperly, either by too much speed, or by negligent conduct, are as much liable, if death ensues, as those who oause it on the public highway, either by furious driving or by negligent conduct. And see The Europa, 2 Eng. Law and Eq. R. 560. From an examination of the authorities upon the subject of criminal negligence, we think it may be safely assumed, First, That the negligent party may be liable, whether the negligence occurred in the performance of a legal or an illegal act. Second, That negligence of omission is criminal as well as of commission. Third. That criminal negligence is not excused by negligence in the other party. It is proposed to allude to each of these points in their order. 1st. The negligent party is liable, whether the act occurred in the performance of a legal or an illegal act. We dp not mean to say, that any neg- ligence which produces death is punisha- ble in the same degree, if occurring while in the performance of a legal act, as if caused while violating the law, but merely that such negligence is not excusable, simply because the party charged was employed in a lawful business. And the law goes even much further. The ac- cused may have been honestly seeking 46 LEADING CRIMINAL CASES. Criminal Negligence — Manslaughter — Misadventure. the benefit of the sufferer, and yet, if by his gross negligence, the death of the latter is occasioned, it is manslaughter. The frequent cases of death arising from the administration of medicines to sick persons, either by regularly educated and licensed physicians, or others, either through gross ignorance, or criminal inat- tention in the party administering the rem- edies, furnish illustrations of this princi- ple. The liability of physicians and others, whose remedies to the sick unexpectedly produce their death, is not, in all the cases, placed upon harmonious grounds. For, while all agree that if the physician, surgeon, or other person, is guilty of gross negligence in the administration of his medicines, and thereby causes the death of his patient, he is justly chargeable with manslaughter ; yet if this fatal result is produced not from positive carelessness, but from gross ignorance of the powers and properties of that which is adminis- tered, this has sometimes been thought manslaughter, and sometimes only mis- adventure. Lord Hale says, 1 Pleas of th'e Crown, p. 429 : If a physician or sur- geon gives a person a potion, without any intent of doing him 'any bodily hurt, but with an intent to cure or prevent a dis- ease, and, contrary to the expectation of the physician, it kills him, this is no homi- cide ; and the like of a chirurgeon. And he cites the Year Book, 3 Edward 3, Corone, 163. Blackstone, 4 Coram, ch. 14, uses almost similar language : If a physician or sur- geon gives his patient a portion or plaster to cure him, which, contrary to expecta- tion, kills him, this is neither murder nor manslaughter, but misadventure, and he shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance. And in Rex v. Van ButcheU, 3 Carrington & Payne, 629, Baron Hullock, who was cer- tainly a sound lawyer and a strong man, is reported to have ruled in 1831, relying upon Lord Hale and Blackstone, that " if a person bond, fide, and honestly exercis-, ing his best skill to cure a patient, per- forms an operation which causes death, he is not guilty of manslaughter." There was not, however, any proof of ignorance or carelessness in that case, and the pris- oner was acquitted. Perhaps no case can be found where it was more directly held, that death arising from gross ignor- ance in the administration of medicines, is not manslaughter, than Commonwealth v. Samuel Thompson, 6 Massachusetts, 134. There the defendant, day after day, ad- ministered powerful doses of lobelia to a person who was confined to the house with a cold ; the effect of which was ex- treme debility, convulsions, loss of reason, and finally death. The violent and pow- erful nature of the remedy was abun- dantly proved at the trial. The gradual effect of it upon the patient was from day to day communicated to the prisoner, who still continued the administration of it. Of the death of the deceased, by the un- skilful treatment of the prisoner, there was no reasonable doubt. The prosecu- tor claimed that the prisoner was guilty of manslaughter, because he rashly and pre- sumptuously administered to the deceased a deleterious medicine, which, in his hands, by reason of his gross ignorance, became a deadly poison. But the court, on considering this point, were all of opinion, notwithstanding this ignorance, that if the prisoner acted with an honest intention and expectation of curing the deceased by this treatment, although death, unexpected to him, was the con- sequence, he was not .guilty of man- slaughter. .The court relied chiefly upon the citation before given from Lord Hale, and upon this reasoning : " To consti- tute manslaughter," say they, " the kill- ing must have been a consequence of some unlawful act. Now there is no law which prohibits any man from prescribing for a sick person, with his consent, if he honestly intends to cure him by his pre- scription ; and it is not felony, if, through his ignorance of the quality of the medi- cine prescribed, or of the nature of the disease, or of both, the patient, contrary to his expectation, should die. The death of a man, killed by voluntarily following a medical prescription, cannot be adjudged felony in the party, prescribing, unless he, however ignorant of medical science in LEADING CRIMINAL CASES. 47 Criminal Negligence — Manslaughter — Misadventure. general, had so much knowledge or prob- able information of the fatal tendency of the prescription, that it may be reasonably presumed by the jury to be the effect of obstinate, wilful rashness, at the least, and not of an honest intention and expecta- tion to cure." And the same was held in Rice v. The State, 8 Missouri, 561. But the English judges have held phy- sicians, or those who assumed to be such, to a stricter accountability than this, as is ap- parent from many cases. In Rex v. Spiller, 5 Carrington & Payne, 333, Baron Bol- land ruled, together with Mr. Justice Bo- sanquet, that any person who deals with the life or health of any subject, is bound to use competent skill to perform the task that he holds himself out to perform ; and is bound to treat his patients with care, attention, and assiduity; and if the pa- tient dies for want of either, the person is guilty of manslaughter. And in Rex v. Senior, 1 Moody, C. C. 346, the prisoner undertook to act as midwife ; but being grossly ignorant of his art, and unable to deliver the woman with safety, as might have been done by a person of ordinary skill, broke the child's skull, and thereby occasioned its death. He was convicted of manslaughter, and all the judges held the conviction right. In a somewhat similar case, in 180 7, Lord Ellenboroughhad ruled that to constitute manslaughter, the pris- oner must have been guilty of criminal mis- conduct, arising either from the grossest ignorance, or the most criminal inat- tention. One or other of these is neces- sary to make him guilty of that criminal negligence and misconduct which is es- sential to a case of manslaughter. Rex v. Williamson, 3 Carrington & Payne, 635. Gross ignorance was also admitted to be sufficient to create a criminal responsibil- ity, by Lord Lyndhurst, in Webb's case, 2 Lewin, C. C. 196, and 1 Moody & Bobin- son, 405, where a person was indicted for manslaughter by administering Morison's pills. The learned judge said: That where a person of competent skill and knowledge made an accidental mistake in treatment, which occasions death, it is not manslaughter; but if, when proper medical assistance can be had, a person, totally ignorant of medicine, undertakes to administer a violent and dangerous remedy to a sick person, death in conse- quence is manslaughter. I shall leave it, he said, to the jury, to say, first, whether death was occasioned or accelerated by the medicines administered ; and if they think it was, then I shall tell them, sec- ondly, that the prisoner is guilty of man- slaughter, if they think, that in so admin- istering the medicine, he acted either with a criminal, intention, or from very gross ignorance. In like manner, in Rex v. Simp- son, 4 Carrington & Payne, 407, note, and 1 Lewin, C. C. 172, the prisoner, an old woman, who occasionally dealt in med- icine, gave the deceased some corrosive sublimate for an emetic, one dose of which caused his death. The prisoner had re- ceived the mixture from some other person. Mr. Justice Bayley said he took it to be quite clear, that if a person, not of medical education, where professional aid was ac- cessible, undertook to administer danger- ous medicine, death therefrom was man- slaughter — even without evil intention; and it was immaterial whether he pre- pared it himself or got it from another. And in Rex v. Long, 4 Carrington & Payne, 398, on an indictment for man- slaughter, it was left to the jury, that if the death was caused by the prisoner's gross ignorance of his art, or by gross inatten- tion to his patient's safety, he was guilty of manslaughter ; and Garrow, B., said : Why is it that we convict in cases of death by driving carriages? Because the parties are bound to have skill, care, and cau- tion. In a subsequent case against the same defendant, tried before Bayley, B., Bolland, B., and Bosanquet, J., it was strongly urged for the prisoner, that in no case should a physician be responsible for the consequences of his medical acts, if performed with good intentions; and all the authorities bearing upon thai; side of the question were cited, including East, P. C. vol. 1, p. 264. Bayley, B., said he did not think there was any difference be- tween a licensed and unlicensed surgeon ; the manner in which the act was done, and the use of due caution, seemed to him material. But he said, all he meant to 48 LEADING CRIMINAL CASES. Criminal Negligence — Manslaughter — Misadventure. say then was, that there being conflicting authorities, and the impression of himself and the other judges being adverse to the ground taken by the prisoner's counsel, he proposed, with the assent of the other judges, to reserve the point. But he said : If a man, either with gross ignorance or gross rashness, administer medicine, and death ensue, it will clearly be — felony. The like principle was clearly recognized by Coleridge, J., in Rigina v. Spilling, 2 Moody & Robinson, 107, where an apoth- ecary and man-midwife had caused the death of a female by the use of a metallic instrument in her delivery. The jury were instructed that the question for them to decide was, whether the instrument had been used by the prisoner with due and proper skill and caution, or with gross want of skill or attention. No man was justified in making use of an instru- ment, in itself a dangerous one, unless he did so with a proper degree of skill and caution. The prisoner was convicted. Here we see that ignorance or unskilful- ness was made sufficient to create a crimi- nal responsibility. Precisely the same rule was laid down by Tindal, C. J., in Fergu- son's case, 1 Lewin, C. C. 181. And in a very recent case, Regina v. Whitehead, 3 Carrington & Kirwan, 202, Maule, J., told the jury that if " a medical man, . or other person, caused the death of an- other, not intending to kill him, but by his gross negligence, unskilfulness, or ig- norance, he was guilty of culpable homi- cide." The prisoner had performed an operation for a disease of the bone, which had resulted in death. He was convicted of manslaughter. A passage in The Mirror, also, ch. 4, § 16, tends to support the position that death, arising from gross ignorance, may be criminal. Physicians and chirurgeons are skilful in their faculties, and probably do lawful cures, having good consciences, so as nothing faileth to the patient which to their art belongeth; and if their pa- tients die, they are not thereby man- slayers, or mayhemers; but if they take upon them a case, and have no knowledge or skill therein ; or, if they have knowl- edge, if, nevertheless, they neglect the case, or minister that which is cold for hot, or hot for cold, or take little care- thereof, or neglect due diligence therein, and especially in burning or cutting off members, which they are forbidden to do, but at the peril of their patient, if their patients die, or lose their members in such cases, they are manslayers, or mayhemers. The weight of authority certainly seems to be, therefore, that if a person holds himself out as competent to prescribe for, and professionally treat a certain disease, and through his gross ignorance of the nature of the disease, or of the proper use of the remedies he employs, the death of the patient is thereby caused, he may be guilty of manslaughter, although he acted with the best intentions, and used the best • of his skill and knowledge on the subject. As well expressed by Baron Bayley, in Rex v. Long, 4 Carrington & Payne, 440, there may be such gross rashness in the appli- cation of a remedy as will amount to man- slaughter. It is not impossible, therefore, that if Samuel Thompson, before alluded tOj had been tried in Essex, Great Brit- ain, in place of Essex, Massachusetts, his fate might have been different. If the common law, therefore, declares that gross negligence in the performance of a legal and well-intentioned act may become criminal, a fortiori, does it punish the same negligence if committed while in the performance of any wanton or illegal act. It has, therefore, been adjudged manslaughter for a person, in sport, to throw stones down a coalpit, whereby a man was killed. Fenton's case, 1 Lewin, C. C. 179. Or to administer improper quantities of spirituous liquor to a child, heedlessly, and for brutal sport. Martin's case, 3 Carrington & Payne, 211. To build a fire of straw around a person in- toxicated, only to frighten him, and in sport, and without any intention to do any serious injury. Errington's case, 2 Lewin, C. C. 217. To use unnecessary force to drive a person from one's own house, who is a trespasser there, from which death en- sues. Wild's case, 2 Lewin, C. C. 214. So, where a mother, being angry with one of her children, threw a piece of iron at it, and hit another child who happened to be LEADING CRIMINAL CASES. 49 Criminal Negligence — Omission and Commission. present, of which blow the latter died, this was held manslaughter in the mother, al- though she did not intend to hit the first child, but only to frighten it. Rex v. Conner, 7 Carrington & Payne, 438. And where a parent, or one ire loco parentis, beats a child and compels it to labor an unrea- sonable number of hours, and beyond its strength, and the child's death is thereby hastened, this is criminal. Rex v. Cheese- man, 7 Carrington & Payne, 455. So, where the deceased was in possession of the defendant's goods under legal process, and the defendant enticed him to drink freely, and, when fully intoxicated, drove him. about the streets in a carriage vio- lently, of which he died, this was held to be manslaughter. Regina v. Packard, 1 Carrington & Marshman, 246. Nearly akin to manslaughter, by negli- gence in administering to the sick, are those cases of neglect to provide suitable food, clothing, or shelter, on the part of parents, masters, or others, whose duty it is by law, or by their own contract, to provide such necessaries. But before a parent, master, or guardian can be crimi- nally liable for neglecting to provide food, etc., for an infant child, it must appear that the person accused was under a lia- bility, and had the means and ability of supporting the child, and that such child had actually sustained bodily injury from the neglect. The mere fact of abandon- ment, or neglect, would not alone amount to a criminal offence. See Regina v. Ho- gan, 5 Eng. Law and Eq. R. 553 ; Rex v. Saunders, 7 Carrington & Payne, 277; Regina v. Phittpot, 20 Eng. Law and Eq. K. 591 ; Regina v. Renshaw, 2 Cox, C. C. 285. And see Regina v. Vann, 8 Eng- Law and Eq. R. 596; that if a parent has the means, he is bound to give his child a Christian burial, and if he neglect to do so, and leaves the body exposed in a pub- lic place, he is guilty of a nuisance. But if not of ability, he is not bound to bor- row, beg, or steal, sufficient for that pur- pose. But as this species of negligence is of omission rather than commission, it will be discussed in the succeeding note on that subject. E. H. B. Regina v. Lowe. 1 July- 19, 1850. Criminal Negligence — Omission and Commission. An act of omission, as well as of commission, may be so criminal as to be the subject of an indictment for manslaughter. Where a man, appointed to superintend a steam-engine employed in a colliery, for the pur- pose of raising colliers from the pits, left the engine in the charge of an incompetent per- son, and in consequence of that incompetence, death ensued 1 , Held, that the man so leaving the engine was guilty of manslaughter. The prisoner was indicted for the manslaughter of Thomas Tib- etts, on the 3d of June, 1850. From the evidence in support of the charge, it appeared that the deceased was a collier, working in coal-pits, and the prisoner was employed by Messrs. Jones and Darly, the owners of the pits, to attend the steam-engine by which the " skip," or basket, was raised J 4 Cox, C. C. 449 ; 3 Carrington & Kirwan, 123. 5 50 LEADING CRIMINAL CASES. Criminal Negligence — Omission and Commission. up or let down the shaft of the pit with the workmen, on their way from and to their work. In the case of the men ascending the pit, it was the prisoner's duty to set the engine in motion to raise the skip until it reached about two feet above the surface or mouth of the pit, and then to stop the engine, so as to allow a " wagon," or platform to be moved over the mouth of the pit, and enable the men to get out of the skip with safety. The prisoner, instead of attending at the engine, as was his duty, left it on the morning of the 3d of June, 1850, in the care of Jijhn Stockley, a lad fifteen years of age. Stockley remonstrated with the prisoner at the time, and told him that he, Stockley, would not work the skip. The prisoner replied that the witness was too idle to work it, but he would make him. The prisoner then went away to a pub- lic house. During his absence, the deceased, (having descended the pit early in the morning,) made the usual signal for the skip to be drawn up, by calling out to the boy stationed at the top of the shaft, whose duty it was, in his turn, to repeat the signal to the person having charge of the engine. In this instance, the boy repeated the signal as usual, and Stockley set the engine to work, but failed in stopping it at the proper time, when the skip reached the surface with the deceased and two fellow-workmen. The failure was proved to be because " the skipper did not knock the engine up into the cap," Stockley stating that he did not know how to do it. The conse- quence was that the skip was drawn up to the pulley over which the rope connecting the skip with the engine passed, and the deceased forced out, falling down the shaft, which was one hundred and sev- enty yards deep, and was of course killed. At the close of the case for the prosecution, Huddleslon,, for the prisoner, said he would take his lordship's opinion as to whether the facts, as proved, constituted the crime of manslaughter, or, in other words, whether a man, whose duty it is to attend at a particular place, or fill a particular office, and omits to attend, and leaves an incompetent person in his place, and death ensues, is guilty of manslaughter. In Rex v. Allen and Clark, 7 C. & P. 153, it was held, that where a sailing-vessel was run down by a steamboat, in consequence of the improper steerage of the latter, arising from there not being a man at the bow to keep a look-out at the time of. the accident^neither the captain nor pilot could be con- victed of the manslaughter of a person in the vessel run down. Parke, J., then observed : " Supposing the captain had put a man at the proper part of the vessel and gone to lie down, do you mean to say he would be criminally responsible ? And you must carry it to that length if you mean to make any thing of it." And Alderson, B., LEADING CRIMINAL CASES. 51 Criminal Negligence — Omission and Commission. said to the jury : " There is no act of personal misconduct or personal negligence on the part of these persons at the bar." A distinction appears to be taken between those cases where case or trespass would be, respectively, the civil remedy. In Rex v. Green, 7- C. & P. 156, also, it was held, that to make the captain of a steam-vessel guilty of manslaughter, in causing a person to be drowned, by run- ning down a boat, the prosecutor must show some act done by the captain ; and a mere omission on his part, in not doing the whple of his duty, is not sufficient. No doubt seems to have been expressed that, supposing the captain had gone down to bed, and the accident happened, that he could not have been responsible. In the present case the prisoner had- gone away to a public house. Lord Campbell, C. J. I am clearly of opinion that an act of omission, as well as of commission, may be so criminal as to be the subject of an indictment for manslaughter, and that there is evidence to go to the jury of such a criminal omission in this case. It has sometimes been held, and not in harmony with Regina v. Lowe, that a neg- ligent act of omission is not punishable criminally ; but that some positive act of negligence is necessary in order to create criminal liability. See the opinions of Alderson, B., and Parke, J., in Rex v. Allen, 1 Carrington & Payne, 153, and in Rex v. Green, 1 Carrington & Payne, 156. These cases were indictments for man- slaughter against the captain and pilots of a steamboat, for the death of a person on board of a smack, caused by running the smack down. The accident was attribu- ted to the fact that a sufficient look-out was not kept at the bow of the steamer. Alderson, Baron, said to the prosecutor: You put it as a case of a negligent act of omission. I have great doubt wheth- er that amounts to manslaughter. And Parke, J., observed : You must show some act done. You rather state it as if a mere omission, on the part of the pris- oner, in not doing his whole duty, would ' be enough ; and we are of opinion that it is not sufficient. The soundness of any such distinction, however, as a general test of liability, may well be doubted, since a person is always bound by law to do his whole duty, and to positively perform all those acts which <8he law requires, as well as to abstain from doing those acts which the law pro- hibits. We see no reason why it should not be as censurable in law, as in ethics, to leave undone those things which ought to have been done, as well as to do those things which ought not to have been done. And, indeed, any such distinction is pointedly denied in the leading case of Regina v. Lowe, and the true and salutary rule of legal liability is expressly adopted and recognized. And this is in analogy with the case of Regina v. Spence, 1 Cox, C. C. 352, where an English pilot, having the direction of a foreign vessel, failed to make the man at the wheel understand his orders, in conse- quence of which a boat was run down and a person in it killed. The point was taken that here there was no act of com- mission on the part of the pilot. He gave the right order, but the foreign helmsman misunderstood him. Lord Denman and Alderson, B., both held that if the pilot produced the death by any conduct of his, he was guilty of manslaughter. And it was left to the jury whether the pris- oner was guilty of negligence in not making the foreigners understand him thoroughly. Both of these cases seem hardly consistent with Rex v. Allen, and 52 LEADING CRIMINAL CASES. Criminal Negligence — Omission and Commission. Rex v. Green, supra, but they probably contain the better law. In like manner, in Regina v. Haines, 2 Carrington & Kirwan, 368, it was the duty of the defendant, as ground bailiff of a mine, to cause the mine to be ven- tilated, by directing air headings to be put up where necessary. By his omission to do so in a particular case, the fire- damp in the mine exploded, and several persons were killed. Upon an indict- ment for manslaughter, it was claimed by the prisoner, that as he was guilty only of a breach of duty by omission, he was not guilty of the crime, and that some wrong- ful or improper act was necessary, and Rex v. Allen was relied upon. But Maule, J., told the jury: The prisoner is charged with manslaughter, and it is imputed, that in consequence of his omission to do his duty, a person named Shakspeare lost his life. It appears that the prisoner acted as ground bailiff of a mine ; that, as such, his duty was to regu- late the ventilation, and direct where air headings should be placed ; and the ques- tions for you to consider are, whether it was the duty of the prisoner to have di- rected an air heading to be made in this mine ; and whether, by his omitting to do so, he was guilty of a want of reasonable and ordinary precaution. If you are sat- isfied that it was the ordinary and plain duty of the prisoner to have caused an air heading to be made in this mine, and that a man using reasonable diligence would have had it done, and that, by the omis- sion, the death of the deceased occurred, you ought to find the prisoner guilty of manslaughter. Another instance of negligence of omis- sion amounting to crime, is the neglect of parents, guardians, or others on whom the duty rests, to provide suitable food, cloth- ing, shelter, etc., for infants, invalids, and others ' legally and properly under their care. See The State v, Iioit, 3 Foster, 355. Instances of such neglect may be found in Self's case, 1 East, P. C. 226, in 1776, who was found guilty of man- slaughter in neglecting to provide suitable care and medical attendance for a sick ap- prentice. 1 Leach, C. C. 137. And Rex v. Squire, 1 Russell on Crimes, p. 490, in 1779, is to the same effect. And the later case of Regina v. Smith, 8 Carring- ton & Payne, 153, in 1837, is very simi- lar. In like manner, it has been held to be a crime for a mother to neglect to suckle an infant child, if she is capable of doing so, and the child die of starvation. Regina v. Edwards, 8 Carrington & Payne, 611, where a mother was con- victed of manslaughter. And for a hus- band to neglect to provide food and shel- ter for his wife, whereby she dies; and although the wife was already laboring under a disease which must ultimately prove fatal, yet if her death was accelera- ted by the neglect of her husband, this has been thought to be manslaughter. Regina v. Plummer, 1 Carrington & Kir- wan, 600. And see Nixon v. The People, 2 Scammon, 269, for an instance of suf- fering a person to freeze to death. And as such exposure amounts to homicide, if death is thereby caused, yet if only a serious injury to the child's health is thereby caused, the offence is a misde- meanor at common law. Regina v. Phill- pot, 20 Eng. Law and Eq. R. 591. And see Regina v. Hogan, 5 Eng. Law and Eq. R. 553 ; 2 Denison, C. C. 277 ; Regina v. Renshaw, 2 Cox, C. C. 285 ; 20 Eng. Law and Eq. B. 593, note ; Rex v. Friend, 1 Eussell & Byan, C. C. 20. In all these cases of neglect to provide food, etc., if the neglect was so wilful and gross as to satisfy the jury that the death of the party was intended, the ' crime is murder; but if the death was not in- tended, but was only the result of care- lessness, it is only manslaughter. Regina v. Marriott, 8 Carrington & Payne, 425. And see Rex v. Cheeseman, 7 Carrington & Payne, 455. And so it has been con- . sidered murder for a mother to abandon her infant child on a barren heath or other remote place, which must necessa- rily produce death ; but if the exposure be in a public place, where probably it would be found and cared for, but the child died from the exposure, this would be but manslaughter. Regina v. Walters, 1 Carrington & Marshman, 164. And where a master of a ship compelled a sea- LEADING CRIMINAL CASES. 53 Criminal Negligence — Omission and Commission. man in a state of great debility and ex- haustion, to go aloft, and the seaman went and was drowned, it has been considered murder, if the act was done with malice, and manslaughter, if there was no malice. United States v. Freeman, 4 Mason, 505. But it seems that in these cases of pro- secutions for neglect ^o provide food, etc., it must appear that the accused had the means and ability so to do, before the neglect becomes criminal. See Regiria v. Vann, 8 Eng. Law and Eq. R. 596 ; Rex v. Saunders, 7 Carrington & Payne, 277. So, in Regina v. Pargeter, 3 Cox, C. C. 191, the defendant was convicted of man- slaughter for neglecting to give the pro- per signal to a railway train in motion, whereby a collision took place, and a pas- senger was killed. Although the case was strenuously defended, it was not in- timated but that the defendant was liable for nonfeasance as well as misfeasance. But where an alleged crime consists in a mere breach of duty, it seems proper and perhaps necessary, that the indictment should positively allege that it was the prisoner's duty to do what was not done. See Regina v. Barrett, 2 Carrington & Kirwan, 343. On the same principle, Erie, J., ruled in Regina v. Middleship, 5 Cox, C. C. 275, that where a mother was delivered of a child while on a seat in a privy, if she had the means and power of procuring assistance and saving the child's life, but neglected to do so, she would be guilty of manslaughter. In Regina v. Mabbett, 5 Cox, C. C. 339, it was held, that if parents have not the means of providing proper food and nourishment for their infant children, who are in- capable of taking care of themselves, and wilfully neglect to apply to the pro- per authorities for relief, knowing that such neglect is likely to cause the chil- dren's death, they are guilty of man- slaughter, if death is thereby caused. We consider, therefore, the weight of authority entirely opposed to any sound distinction between acts of omission and commission in regard to criminal respon- sibility. A safer test would be that omission of any act that the party is bound to do, either by law or by contract, would be criminal if* it resulted fatally. If a greater degree of negligence is ne- cessary as to the foundation of a liability criminaliter, than in civil cases, it may be that such degree was not proved in those cases where the distinction between omission and commission was first raised, which want of sufficient negligence may have been, in fact, the ground of the ver- dict of not guilty in those particular cases. However that may be, we think the true law on this subject is laid down in our leading case of Regina v. "Lowe. But in order to create a liability crimi- nally for neglect by nonfeasance, the neg- lect must be of some personal duty, the natural and ordinary consequences of neglecting which, would be dangerous to life. There must be some direct and im- mediate connection between the neglect of duty, and the injury received, before the neglect can be considered a crime. Thus, it has been held that the trustees of a road under an act of parliament, whose duty it was to contract for the due repairs of the road, are not guilty of man- slaughter in neglecting and omitting to contract for such repairs, whereby the road became dangerous, and a traveller was thrown out of a cart and died of his injuries. Regina v. Pocock, 24 Eng. Law and Eq. R. 190 ; 5 Cox, C. C. 172. Lord Campbell said the cases on this subject show a personal duty, the neglect of which has directly caused death ; and, no doubt, where that is the case, a con- viction of manslaughter is right. But how do these apply to trustees of a high- way ? How can it be said that their omission to raise a rate, or to contract for the reparation of the road, directly causes his death ? If so, the surveyors or in- habitants of the parish .would be equally guilty of manslaughter ; for the law casts upon them the duty of keeping the roads in repair. To uphold this inquisition would be to extend the criminal law in a most alarming manner, for which there is no principle or precedent. E. H. B. 54 LEADING CRIMINAL CASES. Criminal Negligence — Negligence of both Parties. Regina v. Longbottom and Another.' March 19, 1849. Criminal Negligence — Negligence of both Parties. Wherever death ensues from injuries inflicted by parties engaged in any illegal act, an indictment for manslaughter will lie, even though it appear that the deceased had mate- rially contributed to his death by his own negligence. The indictment charged, that the two prisoners feloniously killed and slew John Truman, by driving over him with a gig. O'Malley and E. Rodwell, for the prosecution, proved that the two prisoners, who lived in Ipswich, had gone to Bentley on the day named in the indictment in a gig, and that on their return at night they were observed to be in a state of partial intoxication. At several places they drove along the high road at a very rapid pace, and when they got within two miles of Ipswich they met three men. At that time they were laughing and driving rapidly down a hill, the top of which was thickly shaded with trees. When the three men got to the trees they found a man lying insensible in the middle of the road, presenting all the appearance of having been just run over by some vehicle. They took up the man, who shortly afterwards died. On inquiry it turned out that the deceased was a man who had been deaf from childhood, but had, in spite of his infirmity, contracted an inveterate habit of walking at all hours in the middle of the road. Against the probable consequences of an indulgence in this habit he had been frequently warned, but without effect. D. D. Keane, for the prisoner, Ltfngbottom, submitted, at the close of the case for the prosecution, that he ought to be acquitted, inas- much as it appeared that the deceased had contributed in a great measure, if not altogether, to his own death, by his own obstinacy and negligence. There was, moreover, no proof that the prisoners were driving at any extraordinary pace ; while it appeared that they were in the middle of the road, and that the deceased was walking just where hetmght not to have been, reference being had to the late- ness of the hour, the darkness of the place, and his peculiar infirmity, which ought to have induced him to refrain from the selection of the most frequented part of the high road, as that on which alone he would walk. No accident could possibly have occurred to the deceased, if he had been at the side of the road, where foot passen- 13 Cox, C. " ■- LEADING CRIMINAL CASES. 55 Criminal Negligence — Negligence of both Parties. gers always walked. He had, therefore, contributed to his own death, and the question was, whether that fact did not exonerate the prisoners from such a charge as the present. This might be tested by analogy with a civil action under Lord Campbell's Act. Under that statute the representatives of the deceased could not maintain an action for compensation against the prisoners, as he had himself been guilty of negligence, so, in this prosecution, it was contended that the prisoners could not be convicted of the crime of manslaughter. Rolfe, B. I cannot stop the case ; for whatever may have been the negligence of the deceased, I am clearly of opinion that the prisoners would not be thereby exonerated from the consequences of their own illegal acts, which would be traced to their negligent con- duct, if any such existed. I am of opinion that if any one should drive so rapidly along a great thoughfare leading. to a large town, as to be unable to avoid running over any pedestrian who may happen to be in the middle of the road, it is that degree of negligence in the conduct of a horse and gig which amounts to an illegal act in the eye of the law; and if death ensues from the injuries then inflicted, the parties driving are guilty of manslaughter, even though consider- able blame may be attributed to the deceased. I do not at all recog- nize the analogy which has been put with regard to an action under Lord Campbell's Act and a charge of felony ; and I abstain from giving any opinion as to the question whether, under the circum- stances here proved, the representatives of the deceased would be precluded from maintaining an action for compensation against the prisoners. But there is a very wide distinction between a civil action for pecuniary compensation for death arising from alleged negligence and a proceeding by way of indictment for manslaughter. The latter is a charge imputing criminal negligence, amounting to illegality ; and there is no balance of blame in charges of felony, but wherever it appears that death has been occasioned by the illegal act of another, that other is guilty of manslaughter in point of law, though it may be that he ought not to be severely punished. If the jury should be of opinion that the prisoners were driving along the road at too rapid a pace, considering the time and place, and were conducting them- selves in a careless and negligent way in the management of the horse intrusted to their care, I am of opinion that such conduct amounts to illegality, and that the prisoners must be found guilty on this indictment, whatever may have been' the negligence of the deceased himself. It is a familiar principle of law, in civil remedy against the other, if his own negli- cases, that where an injury is produced gence concurred in producing the result. by negligence, the injured party has no Bat this rule never obtained in criminal 56 LEADING CRIMINAL CASES. Criminal Negligence — Negligence of both Parties. law, for, as is clearly laid down by Rolfe, B., in the leading case, the party prin- cipally in fault, is as much liable, crimi- naliter, as if his own negligence was the sole cause of the injury. And per- haps the rule in civil cases is founded not so much upon the notion that the defend- ant is less culpable, because the plaintiff was also in the wrong, as upon the well settled principle, that the law will not favor a claim for damages by one, who by his own conduct has in part produced his own injury. And therefore we find that when the prosecution becomes crim- inal, and no private pecuniary benefit is sought, the negligence of one party does not remove the responsibility of the other. The principal case was determined in 1849, tut the same doctrine had been previously acted upon by Pollock, C. B., in Regina v. Swindall If Osborne, 2 Car- rington and Kirwan, 230. In that case the prisoners were indicted for the man- slaughter of one James Durose. The se- cond count of the indictment charged the prisoners with inciting each other to drive their carts and horses at a furious and dangerous rate along a public road, and with driving their carts and horses over the deceased at such furious and dangerous rate, thereby killing him. The third count charged Swindall with driving his cart over the deceased, and Osborne with be- ing present, aiding and assisting. The fourth count charged Osborne with driv- ing his cart over the deceased, and Swin- dall with being present, aiding and assist- ing. Upon the evidence, it appeared that the prisoners were each driving a cart and horse, on the evening of the 12th of Au- gust, 1845. The first time they were seen that evening was at Draycott toll-gate, two miles and a half from the place where the deceased was run over. Swindall there paid the toll, not only for that night, but also for having passed with Osborne through the same gate a day or two before. They then appeared to be intoxicated. The next place at which they were seen was Tean Bridge, over which they passed at a gallop, the one cart close behind the other. A person there told them to mind their driving ; this was 990 yards from the place where the deceased was killed. The next place where they were seen was forty- seven yards beyond the place where the deceased was killed. The carts were then going at a quick trot, one closely follow- ing the other. At a turnpike-gate, a quarter of a mile from the place where the deceased was killed, Swindall, who appeared all along to nave been driving the first cart, told the toll-gate keeper, " We have driven over an old man ;" and desired him to bring a ligh,t and look at the name on the cart ; on which Osborne pushed on his cart, and told Swindall to hold his bother, and they then started off at a quick pace. They were subsequently seen at two other places, at one of which Swindall said he had sold his concern to Osborne. It appeared that the carts were loaded "with pots from the potteries. The surgeon proved that the deceased had a mark upon his body which would corre- spond with the wheel of a cart, and also several other bruises, and, although he could not say that both carts had passed over his body, it was possible that both might have done so.' And the point under consideration was thus clearly explained by the learned Baron : " The prisoners are charged with contributing to the death of the deceased, by their negligence and improper con- duct, and, if they did so, it matters not whether he was deaf, or drunk, or negli- gent, or in part contributed to his death ; for in this consists a great distinction be- tween civil and criminal proceedings. If two coaches run against each other, and the drivers of both are to blame, neither of them has any remedy against the other for damages. So, in order that one ship- owner may recover against another for any damage done, he must be free from blame ; he cannot recover from the other if he has contributed to his own injury, however slight the contribution may be. But, in the case of loss of life, the law takes a totally different view — rthe con- verse of that proposition is true ; for there each party is responsible for any blame that may erlsue, however large the share may be ; and so highly does the law value LEADING CRIMINAL CASES. 57 Criminal Negligence — Negligence of both Parties. human life, that it admits of no justifica- tion wherever life has been lost, and the carelessness or negligence of any one per- son has contributed to the death of another person. Generally, it may be laid down, that, where one by his negligence. has con- tributed to the death of another, he js re- sponsible ; therefore, you are to say, by your verdict, whether you are of opinion that the deceased came to his death in con- sequence of the negligence of one or both of the prisoners." The same principle is involved in the case of Rex v. Walker, 1 Carrington & Payne, 320, in 1824, although it is not brought out as dis- tinctly in the summing up to the jury. In that case, the prisoner was indicted for manslaughter, in killing Thomas Crates. The deceased was walking along the road leading from Bristol to Bitton, ia a state of intoxication. The priloner was driving a cart, drawn by two horses, with- out reins ; the horses were cantering, and the prisoner sitting in front of the cart. On seeing the deceased,, he called to him twice to get out of the way, but from the state he was in, and the rapid pace of the horses, he could not do so ; and one of the cart wheels passed over him, and he was killed. Garrow, B., laid down, that if a man drive a cart at an unusually rapid pace, whereby a person is killed, though he calls repeatedly to such person to get out of the way ; if, from the rapidity of the dri- ving, or any other cause, the person cannot get out of the way in time enough, but is killed, the driver is in law guilty of man- slaughter ; and that it is the duty of every man who drives a carriage, to drive it with such care and caution as to prevent, as far as in his power, any accident or injury that may occur. Regina v. Williamson, • 1 Cox, C. C. 97, also sustains the lead- ing case upon this point. There, the prisoner, a waterman, having overloaded his ferry-boat, with passengers, and the boat being driven by the swell of a steamer against the bows of another steamer, the passengers air jumped up and tried to lay hold of the steamer. The ferry-boat was thereby upset, and one passenger was drowned. The prisoner called out to the passengers to sit still, when the boat struck, but they did not heed him. Williams, J., said : If the jumping up of the passengers really caused the accident, the overloading of the boat was immediately productive of such result, and thus the prisoner is answerable, for he should have contemplated the danger of such a thing happening. ' So it has been thought murder, if the deceased, being attacked with violence by the de- fendant, should, from a well grounded apprehension, throw himself into a river and be drowned. Regina v. Pitts, 1 Car- rington & Marshman, 284. And see Rex v. Hickman, 5 Carrington & Payne, 151. In analogy with this principle, if a man receives a wound from another, by which his death is produced, the party inflicting the wound is liable for the consequences, although the deceased might have recov- ered by the exercise of more care and prudence. McCallister v. The Stale, 17 Alabama, 434 ; and see Commonwealth v. McPike, 3 Cushing, 181 ; Rew's case, Kel- yng, 26; State v. Baker, 1 Jones, 267; United States v. Warner, 4 McLean, 464 ; Commonwealth v. Green, 1 Ash- mead, 289. In this case it was said, that even if a wound is not mortal in itself, but from want of proper appli- cations, or neglect, it turns to a gangrene # or fever, and that gangrene or fever is the immediate cause of the death, yet the wound being the cause of the gangrene or fever, is the mediate cause of the death, and the iuflicter of the wound is guilty of murder or manslaughter according to the circumstances of the case. And the same is laid down in 1 Hale, P. C. 428. Regina v. Holland, 2 Moody & Robinson, 351, is an important case upon this point. The deceased, having been severely wounded by the prisoner, who had with an iron instrument cut off one of his fin- gers, refused to have the finger amputated, and soon after the lockjaw came on, and the finger was then amputated ; but it was too late, and the lockjaw ultimately caused death. The surgeon testified that in hia opinion if the amputation had taken place at first, the deceased would not probably have died. It was held, notwithstanding the death was immediately caused by the 58 LEADING CRIMINAL CASES. Indictmeut for Murder — Pleading — Dimensions of the Wound. refusal to submit to proper treatment, that the person inflicting the wound was guilty of murder. The same general principles obtain in the Scotch law. See Alison's Principles of the Criminal Law of Scotland, p. 146 - 151. It may be going too far to say that no medical treatment of a dangerous wound, can be so grossly erroneous as to lessen the responsibility of the author of the injury ; but it is conceived that if the jury can say that the death was chiefly owing to the wound, and not to the mal- treatment, the original wrongdoer is re- sponsible for the fatal consequences. If the negligence of the deceased, or his physician, is no shield or defence for the negligence of the prisoner, a fortiori, the negligence of third persons who are co- actors with the defendant cannot be. The negligence cannot be distributed, and the blame divided ; but all who are guilty of the negligence, are equally guilty of the crime. Regina v. Haines, 2 Carrington & Kirwan, 368. The line of distinction, however, be- tween cases where the negligence of the deceased is so far instrumental in causing his death, as to render another not culpa- ble, and the instances before given, where such negligence was considered no palli- ation, is acknowledged to be delicate. Thus, in Rex v. Waters, 6 Carrington & Payne, 828, it appeared that the pris- oner was a seaman pn board a schooner lying in the River Thames, and the de- ceased was a person in the habit of going about in a boat among the ships in the Pool, selling spirits, purl, hot beer, etc., and that on the day in question, the pris- oner and he had some dispute about pay- ing for some spirits, and, both being intox- icated, a good deal »of rough' joking had taken place between them. The first witness for the prosecution swore, that the deceased's boat being alongside the schooner, the prisoner pushed it with his foot, and the deceased stretched out over the bow ofthe boat to lay hold of a barge, to prevent the boat from drifting away, and, losing his balance, fell overboard, and was drowned. Park, J., after con- sulting with Mr. Justice Patteson, said they were both of opinion that the evidence did not show the prisoner guilty of man- slaughter. E. H. B. Rex v. Robert Mosley and Benjamin Morrill. 1 Trinity Term, 1825. Indictment for Murder — Pleading — Dimensions of the Wound. An indictment for murder, which states wounds as contributing to the death, need not state their length, depth, or breadth. The declarations of the deceased, made on the day he was wounded, and when he believed he should not recover, held admissible, though he did not die until eleven days after-* wards, and though the surgeon did not think his case hopeless, and continued to tell him so until the day of his death. The prisoners were tried and convicted before Mr. Justice Hol- royd, at the Lent Assizes for the county of York, in the year 1825, on the following indictment : — Yorkshire, (to wit.) The jurors for our Lord the King, upon 1 1 Moody, C. C. 98 ; 1 Lewin, C. C. 189. LEADING CRIMINAL CASES. 59 Indictment for Murder — Pleading — 'Dimensions of the Wound. their oath present, that Robert Mosley, late of the parish of Wake- field, in the county of York, laborer, and Benjamin Morrill, late of the same place, laborer, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the thirtieth day of September, in the fifth year of the reign of our sov- ereign Lord George the Fourth by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, with force and arms at the parish aforesaid, in the county aforesaid, in and upon one Jonathan Depledge, in the peace of God and our said Lord the King, then and there being, feloniously, wilfully, and of their malice aforethought, did make an assault, and that they, the said Robert Mosley and Benjamin Morrill, then and there feloni- ously, wilfully, and of their malice aforethought, did with great force and violence, -pull, push,, cast, and throw the said Jonathan Depledge down unto and upon the ground there, and that the said Robert Mosley and Benjamin Morrill, with both the hands and feet of them the said Robest Mosley and Benjamin Morrill, then and there, and whilst the said Jonathan Depledge was so lying and being upon the ground, him the said Jonathan Depledge in and upon the head, stomach, breast, belly, back, and sides of him the said Jonathan Depledge, then and there feloniously, wilfully, and of their malice aforethought, di.vers times with great force and violence, did strike, beat, and kick, and that the said Robert Mosley and Benjamin Mor- rill, with both the hands, feet, and knees of them, the said Robert Mosley and Benjamin Morrill, and each of them, then and there, and whilst the said Jonathan Depledge was so lying and being upon the ground as aforesaid, him the said Jonathan Depledge in and upon the belly, head, stomach, and sides of him the said Jonathan Dep- ledge, then and there feloniously, wilfully, and of their malice afore- thought, did with great force and violence strike, push, press, and squeeze, giving to the said Jonathan Depledge, then and there, as well by the pulling, pushing, casting, and throwing of him the said Jonathan Depledge down unto and upon the ground as aforesaid, and by the striking, beating, and kicking of him the said Jonathan Depledge, whilst he was so lying and being upon the ground as aforesaid, in and upon the head, stomach, breast, belly, back, and sides of him the said Jonathan Depledge as aforesaid, as also by the striking, pushing, pressing, and squeezing of him the said Jonathan Depledge, whilst he the said Jonathan Depledge was so lying and being upon the ground as aforesaid, in and upon the belly; breast, stomach, and sides of him the said Jonathan Depledge, with the hands,' knees, and fee.tof them the said Robert Mosley and Benjamin Morrill, in manner aforesaid, several mortal bruises, lacerations, and wounds, in and upon the belly, breast, stomach, and sides of him the 60 LEADING CEIMINAL CASES. , Indictment for Murder — Pleading — Dimensions of the Wound. said Jonathan Depledge, of which said several mortal bruises, lacera- tions, and wounds the said Jonathan Depledge, from the said thir- tieth day of September, in the fifth year of -the reign aforesaid, until the tenth day of October, in the same year, in the parish aforesaid, in the county aforesaid, did languish', and languishing, did live, on which tenth day of October, in the year aforesaid, the said Jonathan Depledge, at the parish aforesaid, in the county aforesaid, of the said several mortal bruises, lacerations, and wounds died, and so the jurors aforesaid, upon their oath aforesaid, do say, that the said Robert Mosley and Benjamin Morrill, him the said Jonathan Dep- ledge in manner and form and by the means aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder against the peace of our said Lord the King, his crown and dignity. On the trial a question arose respecting the admissibility in evi- dence of certain declarations which were offered and received in evidence as the dying declarations of the deceased, as to the circum- stances attending the commission of the crime, and as to the number of the ■persons by whom he had been attacked. The injury that caused the death of the deceased was done to him on Thursday evening the 30th of September last ; in consequence of which he was brought home and put to bed, and a surgeon was sent for on that evening to attend him. When the surgeon arrived,, the deceased immediately complained to him of great pain in his chest, an*d particularly of his side, and of great difficulty of breathing. The surgeon continued to attend him until his death, which took place on the evening of the 10th of October following. The surgeon, in his evidence, said : " I think the deceased did not speak to me of his prospects of dying during that time ; I thought his state dangerous ; I thought his complaint was of that nature that it might terminate in death. The last day that I saw him, the 10th of October, I was certain that he would die that forenoon ; I communicated to him his state ; I told him the case was hopeless ; I made no communication to him till then ; I 3id not consider, the case quite hopeless till then ; I always told him there was danger, but I hoped he would be better; I held out hopes to him of his recovery ; I don't know whether he entertained hopes or not ; he never expressed any opinion either of hope or apprehension to me ; I thought there was a probability of his recovering the day before he died ; I at first thought the probabilities were against him ; I did not communicate that to him." In consequence of this evidence of the surgeon, the learned judge confined the counsel for the prosecution, in their examination of the witnesses, to inquiries whether any and what declarations were made by the deceased on this subject, after the time ^the surgeon LEADING CRIMINAL CASES. 61 Indictment for Murder — Pleading — Dimensions of the Wound. made the above communication to him of his hopeless state, but no such subsequent declarations could be proved. This failing, it became material to inquire further as to the prior hopeless state of the deceased, and his consciousness of it from the commencement of, or during his illness, in order to ascertain whether declarations, alleged to have been made by him during his illness, but prior to the above communication to him by the surgeon, were admissible in evidence or not. To this point a witness, of the name of Ann Newton, stated, " that she was sent for to the deceased on the evening, of the 30th of ■ September, near eight o'clock ; that he was in a very ill state in- deed ; that he said he was robbed and killed ; that he should not get the better of it ; that she assisted in putting him to bed, and con- tinued to attend him till his death ; that during that time he spoke of dying, and said he would not continue long, a few days would finish him ; this he said about Tuesday ; that he complained all along he was sure he would not get better; that he all along said he. never would get better ; that he never missed saying so one day before the latter end." This witness also stated, " that the deceased was 68 years of age, and was in a very good state of health considering his years ; that she was a nurse accustomed to attend sick people, and very often found them low-spirited, and had known many persons say they should never get better, who have got better ; that the deceased talked in that way ; that about the Tuesday before his death, he said he should not continue many days ; that it was before that he told her all about it ; that the first night he said he should not get better, and he continued to say so till the last day." On this evidence, it was objected for the prisoners, that a suffi- cient foundation was not laid for receiving evidence of the deceased's declarations, made on the Thursday evening, the 30th of September, respecting the circumstances that took place in the robbing of him that evening, and that caused his death, or made afterwards, during illness, and previous to the surgeon's notifying to him his hopeless state, as above mentioned. The learned judge was disposed not to receive such evidence unless he should be pressed to do it, in which case he declared he should reserve the question, as to the propriety of his so doing, for the consideration of the judges. This evidence being pressed upon the learned judge, with an inti- mation that the prosecutor's counsel thought the proof would other- wise be insufficient for the conviction of the prisoners, the learned judge received evidence of the deceased's declaration respecting the circumstances above alluded to, made by him after he was, on that Thursday evening, brought home, and had said that he was robbed 6 62 LEADING CKIMINAL CASES. Indictment for Murder — Pleading — Dimensions of the Wound. and killed, and should not get the better of it ; and also at different times afterwards during his illness, and previous to the surgeon's communications to him of his hopeless state, as above mentioned ; and upon that and other evidence the prisoners were convicted of the murder. Upon the conviction taking place, the prisoner's counsel moved in arrest of judgment. It was urged that the indictment was insuffi- cient in stating only that there were several mortal bruises, lacera- tions, and wounds on several parts of his body, (there stated,) of which several mortal bruises, lacerations, and wounds he languished and died ; that a considerable degree of certainty was necessary in the statement of the wounds on the face of the indictment, and of the situation, length, &c, of each ; that it is necessary to describe ' the particular parts of the body on which the wound or wounds is or are alleged, to be ; that charging a wound to be inflicted on the side or. sides of a man is bad, without more particularity ; and non con- stat, whether it is to be taken to be the side or sides of the body, or of the head, or of any, and What limb ; that the indictment, accord- ing to ancient forms, should have so stated the fact as that you might place your finger on the part of the body where the wound is described' to be; that this is still requisite, although- a conviction may take place on evidence varying from it, as the particulars ought to be stated accurately according to what the facts are supposed to be, for the previous information of the court and party charged, with a view to a due investigation ; and in order that it might appear, by such statement of particulars, that a due inquiry had been made by the grand jury, or coroner's inquest, as to these circumstances, before a party should be put to undergo the pain and peril of a trial, and that the facts ought not to be wantonly or purposely varied from in such statement ; 2 Hale, P. C. 185, 186, was cited ; and it was observed that Lord Hale states the authorities that require these par- ticularities of statement, and considers them as requisite in law, in the very same pages, in which' he also states and admits, that a con- viction may take place though they be varied from in proof. Upon these objections, the learned judge respited the judgment until the next assizes, in order to take the opinion of the judges, as well upon the admissibility of the evidence, as upon the validity of the indictment. The judges met twice for the purpose of considering this case ; and at the second meeting, in Trinity term, 1825, the majority of the judges, namely, Gaselee, J., Hullock, B., Garrow, B., Burrough, J., Park, J., Bayley, J., Graham, B., Alexander, L. C. B., Best, L. C. J., and Abbott, L. C. J., held the conviction right, it appearing, in sev- eral old precedents, namely : East. Entr. 263, 382 ; Co. Entr. 355 ; LEADING CRIMINAL CASES. 63 Indictment for Murder — Pleading — Dimensions of the Wound. West. Symb. 117, 151, 153, 154, 155, 235, 260, 261, that the length, depth, and breadth of the wounds were not stated, and also, that Mr. Justice Lawrence had instructed the clerk of assize of the Oxford cir- cuit to omit these particulars where there were more wounds than one, and that his instructions had been followed. The judges held, that, although they might have felt- great difficulty had the prece- dents been uniform, yet, as there were precedents against the ob- jection, they might consider whether common sense required a state- ment of these particulars ; and as the statement, if introduced, need not be proved, they thought it unnecessary. Littledale, J., and Hol- royd, J., differed from the rest of the judges, and thought the indict- ment invalid. Vide Tremaine's'Ent. 10; Staundf. 78, b. 79, a.; 4 Co. 40, b. 41 ; 5 Co. 120, 121, b. 122 ; Cro. Jac. 95 ; Starkie's Crim. Law, 375, 380 ; Archb. Crim. Law, 211. The judges were unanimously of opinion .that the dying declara- tions of the deceased were properly received in evidence. In the case of an incised wound which caused death, upon the necessity of the description, the authorities were uniform until the leading case of Rex v. Mosley, which was twice discussed before all the judges, where it was decided that bruises, lacerations, and wounds, all contributing to the death, need not be described ; 'Lit- tledale and Holroyd, JJ., dissenting, and holding the indictment invalid. It will be observed, that the law has never required the description of a bruise which did not make a technical wound. The reasons given for the decision in Rex v. Mosley, were, that it did not seem material to prove the description ; and Lawrence, J., had instructed the clerk of assize of the Oxford circuit to omit a description of the wounds where there were more wounds than one. The next case in England, is Rex v. Turner, 1 Lewin, C. C. 177, (1830;) which was the case of a bruise, and al- though decided on the authority of Rex v. Mosley, the hurt was described in accord- ance with the earlier decisions as to the necessity of a description of a bruise. The next case is Rex v. Tomlinson, 6 Car- rington & Payne, 370, (1834,) where Pat- teson, J., doubted, but Parke, B., decided, that the depth of a bruised wound made with a stone need not be described, from his memory of Rex v. Mosley. Because, he Said,, that as common sense did not re- quire the length, breadth, and depth of the wounds to be stated, it was not neces- sary that they should be stated, although all the text writers have assigned as a rea- son, that the wound is described, so that the court may see, on the face of the record, that such a hurt would be an ade- quate cause of death. It is to be re- marked, that, all the precedents in Eng- land, in a case of a simple incised wound, still give a description of the wound.. These last two cases were decisions at nisi prius. In America, the earliest reported case is The United Stales v. Maunier, 2 Mar- tin, 79 ; 2 North Carolina Reports, by Battle, 134, (1792,) in North Carolina,' which decided that the length and depth of a wound need not be stated. The next case is The State v. Owen, 1 Mur- phey, 452, (1810,) in the same State, where it was held, that at common law, a description of the wound is necessary. This decision was afterwards approved in The State v. Moses, 2 Devereux, 452,' . (1830,) but it was there decided that the omission of such description is cured by the statute of 1811, which was passed the . next year after Owen's case was decided, and which the court said was probably passed in consequence of that decision. 64 LEADING CEIMINAL CASES. Larceny — Pigeons kept in a dove-cot, with liberty of ingress and egress. The next case is The State v. Crank, 2 not necessary. Lazier v. The Common- Bailey, 66, (1831,) -which decides only wealth, 10 Gratta'n, 708, (1853). In this that a bruise need not be described, while case, Moncure, J., said : Even at common the reasoning of the court would seem to law, the omission to set forth' the length ' admit the doctrine that the dimensions of and depth of the wound would in no case . a wound should be stated. In Stone v. be fatal. In Massachusetts, in the case of The State) 2 Scammon,, 326, 338, (1840,) Commonwealth v. Chapman, The Monthly it is only decided that such description is Law Reporter, vol. 7, n. s. p. 155, (1854,) not bad on error, under the statute pro- where the indictment charged that the visions of Illinois. The next ease is Dias defendant "did strike and bruise" the t. The State, 7 Blackford, 20, (1843,) deceased, it was held that it is not neces- where the depth of the wound is not de- sary to describe either the length, breadth,' scribed. But the judgment was reversed or depth of the wound. But the court on other points, and that is not the point were of opinion, that in the case of a sim- decided by the court. In a very recent pie incised wound, the authorities would case in Virginia, it has been held, under a support the position that a description is statute, that a 'description of the wound is necessary. • H. Regina v. William Cheafor. 1 November 22, 1851. Larceny — Pigeons kept in a Dove-cot, with liberty of ingress and egress. The prisoner was indicted for stealing four tame pigeons, the property of J. M. ; Held, that he was properly convicted of larceny ; tame, i. e. reclaimed pigeons, although Tinconfined, with free access at their pleasure to the open air, being as much the subjects of larceny as domestic fowl, which are allowed to go at large. At the quarter sessions for the county of Nottingham, held at East Retford, on the 7th day of July, a. d. 1851, William Cheafor was in- dicted for feloniously stealing four tame pigeons, the property of John Mansell. The pigeons at the time they were taken by the prisoner, were in the prosecutor's dove-cot, over a stable, on his premises, being an ordinary dove-cot, and having holes at the top for the ingress. and egress of the pigeons, and having a door in the floor which was kept locked. The prisoner entered the dove-cot at twelve o'clock at night, breaking open the door and taking away the pigeons. The prisoner's counsel contended, that the pigeons being at liberty at any time to go in and out of the dove-cot, and therefore not reclaimed, and in a state of confinement, were not the subject of larceny. The chairman directed the jury, that in his opinion the view contended for by the prisoner's counsel was correct, and that the pigeons were not prop- 1 2 Denison, C. C. 361 ; 5 Cox, C. C. 367 ; 8 Eng. Law and Eq. K. 598. LEADING CRIMINAL CASES. 65 Larceny — Pigeons kept in a dove-cot, with liberty of ingress and egress. erly the subject of larceny. The jury found the prisoner guilty ; but judgment was postponed, in order to ask the opinion of the judges, as to whether the chairman's direction to the jury was right, and whether the prisoner, under the facts stated, was properly convicted. On the 22d day of November, a. d. 1851, this case was considered by the judges, when the following judgment was pronounced by Lord Campbell, C. J. : — In the indictment, the pigeons are alleged to be tame, that is, reclaimed, and I think the jury have taken the correct view of the law. We think that the direction of the court was wrong; because it really comes to this, can larceny be com- mitted of tame pigeons? Pigeons must have the means of ingress and egress to the open air, and if the direction of the chairman be law, no larceny could be committed of chickens, ducks, and geese, which are all allowed to go at large. Mr. Greaves in his note on Luke's case, 2 Russell on Crimes, 83, says, that that case was deter- mined on the ground that the pigeons were tame and reclaimed, and not that they were shut up in boxes at the time they were taken. It had been supposed that Parke, B., had in a former case decided that there could be no larceny of pigeons, unless they were shut up in a house or box ; but Parke, B., had, in fact, not so decided. We all think that the tame pigeons may be the subject of larceny, although they have an opportunity of getting out and enjoying themselves in the open air. The Editor has been favored by Mr. man Green. 1 saw the prisoner against Baron Parke with the following notes of the inn at Eaton, three quarters of a mile the case alluded to, but not cited by name, from the dove-cot. I searched the wagon in 2 Russell on Crimes, p. 83, copied from and found six dozen pigeons in a pen. his lordship's Ms. notes of the trial : — Wagoner gave them to me. Sent them in Rex v. Samuel Howell: Bedford, July the pen to Eaton. I saw three or four 23d, 1830.— 28th August, stealing 370 pigeons at the dove-house next day. Wool- tame Douch pigeons of John Hall, the man Green is thirty miles from Eaton, elder. When I got home I found 130 pigeons John Hall, jun— Father is a farmer dead. When I returned from Woolman at Eaton, in this county. I manage the Green I only saw the same number of farm. I recollect discovering the lock of pigeons that I had left, dove-cot door was broken open with some William Swales. — I drove the St. Neot's instrument. I missed pigeons. I could and London wagon on August 28th. Fri- see only four or five. There were six or day morning prisoner came to me at a seven dozen the day before. I saw that place about half a mile from Eaton with the lock was perfect the day before. Fri- Browning. I was driving the wagon to day morning, about the end of August, I Baldock. They brought some pigeons in think the 27th, I discovered that there had sacks, each to one sack. They were been taken about eight. I saw the pris- brought to go to London. I got a pad, oner at eleven with Thomas Browning, and they put them in. This was about Both were much intoxicated. I drove off seven in the morning. They went with in a gig, and overtook the wagon at Wool- me about a wile. Hall met me in the 6* 66 LEADING CKIMINAL CASES. Larceny — Pigeons kept in a dove-cot, with liberty of ingress and egress. afternoon near Woolman Green. I had only one basket of pigeons to my knowl- edge ; the wagon was loaded with meat. Cross-examinedby the prisoner. — I have been in prison a month to-day, under a charge of having received these, knowing them to have been stolen, and come from the jail. ■ Charles Leitch. — I am guard of the Rocket coach, from Woolman Green to Eaton. I recollect taking a hamper of pigeons in harvest time, from Woolman Green to Eaton. I cannot say who de- livered ; never received any other. They were brought to Eaton and left at Mr. Fox's. I delivered it in the same state as when I received. Charles James Fox. — I keep the White Horse at Eaton. I recollect a pad arriving by the Rocket on Friday night. Same day I beard of Hall's dove-cot being broken open. Gilby and I handed them off, and took charge of them. Mc Gilby, hostler at Eaton Fox's. — A pad came by the Rocket. I took them in to Horley. I locked them up, and gave them to William Peck on the morning. William Peck. — I was living with Mr. Hall in August last. I was sent to Fox's on a Saturday morning, and I got a pad of pigeons from Gilby, who took them from the Horley, and I took them home to my master. I did not know Howell. I gave the pigeons to John Hall, the younger. John Hall (the elder.) — I saw the dove- cot on Saturday morning; the pad had been brought home before. I returned from London, several dead, and others much exhausted. I tied red ribbon round the necks of eleven, and turned them off half a mile from my dove-cot. I went round about a quarter of an hour after, and saw three on the dove-cot ; the num- ber in the pad, added to those which were left in the dove-cot, amounted to about the number I had. I apprehended prisoner myself, in London, the 22d June last. Most of my pigeons were blue ; most in the pad were blue. John Emery. — I was on the Rocket coach. Hall, the younger, stopped the coach, and put a pad of pigeons, to be taken home to Eaton. I was with the coach to Eaton, and left there. Verdict, Guilty. Parke, B., upon the foregoing facts, ruled that the prisoner was guilty of lar- ceny, and it being the prisoner's third of- fence his lordship sentenced him to seven year's transportation. Luke's case was subsequently decided, as stated in Russell. See Roscoe's Crim- inal Evidence, (ed. 1850,) p. 630. Commonwealth v. Thomas Chace. 1 October 23, 1829. Doves are animals feras naturae, and cannot be the subject of larceny, unless when they are in the custody of the owner ; as, for example, in a dove-house. The defendant was indicted for stealing fourteen tame doves, the property of Benjamin Williams. At the trial, before Morton, J., it was proved, that Williams had dove-houses in which he reared doves, and that he used them for food; that the doves mentioned in the indictment occupied these dove-houses, and were claimed by Williams as his property ; that he took care of them and fed them regularly, and that they would come 1 9 Pickering, 15. LEADING CRIMINAL CASES. 67 Larceny — Pigeons kept in a dove-cot, with liberty of ingress and egress. to be fed when called. The evidence also tended to show, that the defendant shot the doves and used them for food, and that he did it animo furandi. The judge instructed the jury, that if they believed the evidence, and that the doves were taken by the defendant with a felonious in- tent, they ought to find him guilty. The defendant's counsel ex- cepted to this instruction, on the ground that doves could not be the subject of larceny. The jury having found the defendant guilty, a motion was made for a new trial. Russell, for the defendant, cited Wallis v. Mease, 3 Binney, 546 ; East's P. C. tit. Larceny ; Russell on Crimes, tit. Larceny. Morton, attorney-general, contrd, cited 4 Bl. Comm. 236 ; 3 Dane's" Abr. 25, 158, 161. . Parker, C. J., delivered the opinion of the court. It is held in all "the authorities, that doves are feres naturce, and as such are not sub- jects of larceny, except when in the care and custody of the owner ; as when in a dove-cot or pigeon-house, or when in the nest before they are able to fly. If, when thus under the care of the owner, they are taken furtively, it is larceny. The reason of this principle is, that it is difficult to distinguish them from other fowl of the same species. They often take a flight and mix in large flocks with the doves of other persons, and are free tenants of the air, except when, impelled by hunger or habit, or the production or preservation of their young, they seek the shelter pre- pared for them by the owner. Perhaps when feeding on the grounds of the proprietor, or resting on his barn or other buildings, if killed by a stranger, the owner may have trespass; and if the purpose be to consume them as food, and they are killed or caught or carried away from the inclosure of the owner, the act would be larceny. But in this case there is no evidence of the situation they were in when killed, whether on the flight, a mile from the grounds of the owner, or mingled with the doves of other persons, enjoying their natural liberty. Without such evidence the act of killing them, though for the purpose of using them as food, is not felonious. Therefore a new trial is granted. In Rex v. Brooks, 4 Carrington & Payne, pressed in the principal cases, doves are 181, it was held, that if pigeons are so far ferce natwae, and are not the subject of tamed that they come home every night larceny, unless there be distinct evidence to roost, in wooden boxes hung out by that they were in the care and custody their owner, they are the subject of of the owner. So it has been held, that larceny. But, according to the rule ex- a sable caught in a trap in the woods, 68 LEADING CEIMINAL CASES. Infants, Criminal Liability of — Confessions. is not a subject of larceny while it re- are not the subject of larceny, Wallis v. mains in the trap. Norton v. Ladd, 5 Mease, 3 Binney, 546 ; Gillett v. Mason, New Hampshire, 203. So, of ferrets, al- 7 Johnson, 16 ; Cock v. Wealherby, 5 though tame and salable. Rex v. Searing, Smedes & Marshall, 333. Alitor, of bees Kussell & Ryan, C. C. 350. So, it seems, in the possession of the owner. The State of rooks. Hannam v. Mockett, 2 Barne- v. Murphy, 8 Blackford, 498. And see wall & Cresswell, 934 ; 4 Dowling & By- Tibbs v. Smith, T. Raymond, 33. The land, 518. And a raccoon. Warren v. flesh of such animals as are /era natural, The State, 1 Iowa, 106. Wild bees re- may be the subject of larceny. SeeRegina maining in a tree where they have hived, v. Gallears, 3 Cox, C. C. 572 ; 1 Denison, although confined in such tree by the C. C. 501 ; Temple & Mew, C. C. 196 ; 2 owner of the land on which the tree stands, Carrington & Kirwan, 981. H. Rex v. William York. 1 Michaelmas Term, 1748. Infants, Criminal Liability of — Confessions. A child ten years of age may be guilty of murder if he knew he was doing wrong. The confessions of a child ten years of age are admissible against him, if there be no other objection except infancy. At Bury summer assizes, 1748, William York, a boy of ten years of age, was convicted before Lord Chief Justice Willbs, for the mur- der of a girl of about five years of age, and received sentence of death. But the chief justice, out of regard to the tender years of the prisoner, respited execution, till he should have an opportunity of taking the opinion of the rest of the judges, whether it was proper to execute him or nofy upon the special circumstances of the case ; which he reported to the judges at Serjeant's Inn, in Michaelmas term following. The boy and girl were parish children, put under the care of a parishioner, at whose house they were lodged and maintained ; on the day the murder happened, the man of the house and his wife went out to their work early in the morning, and left the children in bed together ; when they returned from work, the girl was missing ; and the boy being asked what was become of her, answered that he had helped her up and put on her clothes, and that she was gone he knew not whither. Upon this, strict search was made in the ditches and pools of water near the house, from an apprehension that the child might have fallen into the water. During this search, the man under whose care the children were, observed that a heap of dung near the house had been newly turned up; and, upon removing the upper part of the heap, he found the body of the child about a foot's 1 Foster's Crow" Law. 70. LEADING CRIMINAL CASES. 69 Infants, Criminal Liability of — Confessions. depth under the surface, cut and mangled in a most barbarous and horrid manner; Upon this discovery, the boy, who was the only person capable, of committing the fact, that was left at home with the child, was charged with the fact, which he stiffly denied. "When the coroner's jury met, the boy was again charged, but per- sisted still to deny the fact. At length, being closely interrogated, he fell to crying, and said he would tell the whole truth. He then said that the child had been used to foul herself in bed ; that she did so that morning (which was not true, for the bed was searched and found to be clean,) that thereupon he took her out of the bed, and carried her to the dung^heap ; and with a large knife, which he found about the house, cut her in the manner the body appeared to be mangled, and buried her in the dung-heap ; placing the dung and straw that was bloody under the body,* and covering it up with what was clean ; and having so done, he got water and washed himself as clean as he could. i The boy was the next morning carried before a neighboring jus- tice of the peace, before whom he repeated his confession, with all the circumstances he had related to the coroner and his jury. The justice of the peace very prudently deferred proceeding to a commit- ment, till the boy should have an opportunity of recollecting himself. Accordingly he warned him of the danger he was in, if he should be thought guilty of the fact he stood charged with, and admonished him not to wrong himself. And then ordered him into a room, where none of the crowd that attended should have access to him. When the boy had been some hours in this room, where victuals and drink were provided for him, he was brought a second time be- fore the justice, and then he repeated his former confession ; upon which he was committed to jail. On the trial, evidence was given of the declarations before men- tioned to have been made before the coroner and his jury, and before the justice of the peace ; and of many declarations to the same pur- pose which the boy made to other people after he came to jail, and even down to the day of his trial. For he constantly told the same story in substance, commonly adding, that the devil put him upon committing the fact. Upon this evidence, with some other circum- stances tending to corroborate the confessions, he was convicted. Upon this report of the chief justice, the judges having taken time to consider of it, unanimously agreed, 1st. That the declarations stated in the 1 report were evidence proper to be left to the jury. 2d. That supposing the boy to have been guilty of this fact, there are so many circumstances stated in the report, which are undoubtedly 70 LEADING CRIMINAL CASES. Infants, Criminal Liability of — Confessions. tokens of what my Lord Chief Justice Hale somewhere calleth a mischievous discretion, that he is certainly a proper subject for capi- tal punishment, and ought to suffer; for it would be of very danger- ous consequence to have it thought, that children may commit such atrocious crimes with impunity. There are many crimes of the most heinous nature, such as in the present case the murder of young children, poisoning parents or mas- ters, burning houses, &c, which children are very capable of commit- ting ; and which they may in some circumstances be under strong temptations to commit ; and therefore, though the taking away the life of a boy of ten years old may savor of cruelty, yet, as the ex- ample of this boy's punishment may be a means of deterring other children from the like offences ; and as the sparing this boy, merely on account of his age, will probably have a quite contrary tendency, in justice to the public the law ought to take its course ; unless there remaineth any douBt touching his guilt. In this general principle all the judges concurred. But two or three of them, out of great tenderness and caution, advised the chief justice to send another reprieve for the prisoner ; suggesting that it might possibly appear on further inquiry, that the boy had taken this matter upon himself at the instigation of some person or other, who hoped by this artifice to screen the real offender from justice. Accordingly, the chief justice did grant one or two more reprieves ; and desired the justice of the peace who took the boy's examination, and also some other persons in whose prudence he could confide, to make the strictest inquiry they could into the. affair, and report to him ; at length he, receiving no further light, determined" to send no more reprieves, and to leave the prisoner to the justice of the law at the expiration of the last ; but before the expiration of that reprieve, execution was respited till further order, by warrant from one of the secretaries of state; and at the summer assizes, 1757, he had the benefit of his Majesty's pardon, upon condition of his entering im- mediately into the sea service. William York's case has long been the 1st. Tlieir liability below the age of seven leading case on the liability of infants for years. crimes. The subject naturally presents It is laid down by most elementary the following points : — writers upon criminal law, that if an in- lst. Their liability below the age of fant be under seven years of age, he can- seven years. not be guilty of any crime, whatever cir- 2d. Their liability between the ages of cumstances may appear proving his discre- seven and fourteen. tion ; for, ex presumptione juris, he cannot 3d. Their liability above the age of have discretion, and no averment shall fourteen. be received against that presumption. 1 4th. The confessions of infants. Hale's Pleas of the Crown, 27 : Mirror, LEADING CRIMINAL CASES. 71 Infants, Criminal Liability of — Confessions. ch. 4, § 16 ; Plowden, 19 a; Dalton's Jus- tice, ch. 147, p. 334; 1 Hawk. P. C. 2; 4 Blackstone, Comm. 22, 23. But it yet remains to be judicially deter- mined that, if an infant under seven is proved to have sufficient discretion, and to know good from evil, he is not liable to prosecution, as well as one above that age. The maxim malitia supplet celatem, seems to apply, as well to one under, as to one over the age of seven years. Is there any suf- ficient reason why a child who, like Crich- ton, Pascal, or White, at a very early age, exhibits evidence of unusual mental devel-- opment, and strong powers of mind, and a capacity of knowing good from evil, should not be as responsible for his intelligent acts, on the day before, as well as the day after his arrival at the age of seven years. The assumption of seven years as the commencement of criminal responsibility, is entirely arbitrary; and the fact that elementary writers have quite generally agreed upon such a principle .of law, can hardly be relied upon as a defence, should a case arise where the facts clearly show that an infant under seven, had, with ac- tual malice, and knowledge of his wrong- ful act, committed an offence against the law. Besides, this point may be considered not entirely without direct authority, for there is a precedent in the Register, fol. 309, b., of a pardon granted to an infant within seven years, who was indicted for homicide ; the jury having found that he did the fact before he was seven years old. 1 Hale's Pleas of the Crown, p. 28, n. e. 2d. Their liability between the age of seven and fourteen. But whatever may be the law relative to persons under the age of seven, all authorities agree that, at that age, crim- inal responsibility commences, and, subject to the presumption in favor of infants, they are amendable for any and all crimes committed by them, whether felonies or misdemeanors. In Dalton's Justice, p. 234, ch. 147, it is said : " An infant of eight years of age, or above, may commit homicide, and shall be hanged for it, viz., if it may appear, (by hiding of- the person slain, by excusing it, or by any other act,) that he had knowl- edge of good and evil, and of the peril and danger of that offence." See also Staun- forde,.Les Plees del Coron, ch. 19 ; Year Books, 3 Henry 7, p. 1 ; 4 Blackstone, Comm. 23. It is believed, that the young- est person ever executed for crime, was a boy, named Dean, between eight and nine years of age, who, in 1629, was found guilty of burning two barns at Windsor, and it appearing that he had malice, re- venge, craft, and cunning, he had judg- ment to be hanged, and was hanged ac- cordingly. See Emlyn's edition of Hale's Pleas of the Crown, ch. 25, note (n.) In another case, an infant of the age of nine years, killed his companion of the like age, and hid the body and tlje blood. He also confessed the felony, and was ad- judged to be hanged ; but judgment was respited in order that he might obtain a pardon. Fitzherbert's Report Corone, 57, B ; lb. 133 ; 1 Hale's Pleas of the Crown, 27. So an infant, ten years old, named Spigurnel, was convicted of killing his companion, afterwards hiding himself ; and it appearing, by his hiding himself, that he could discern between good and evil, he was hanged. Spigurnel's case, 1 Hale's Pleas of the Crown, 26 ; Fitzherbert's Re- port Corone, 118. In 4 Boston Law Re- porter, p. 329, is the report of the trial of a boy, twelve years of age, for the murder of his companion and playmate, aged only thirteen. The principal evidence of the felonious intent was the dying declaration of the deceased. Circumstances strongly corroborated the fact of a consciousness of guilt on the part of the accused ; but he was acquitted by the jury. The liability of infants for crimes, is well discussed in The State v. Gom, 9 Humphreys, 175. The prisoner was about twelve years old, and was convicted of an assault and bat- tery, by the verdict of a jury. The proof was, that the assault was prompted by malice and revenge, and committed upon an infant incapable of self-defence. The court below refused to sentence the pris- oner, on the ground that a person under fourteen, although possessed of sufficient capacity to distinguish between good and evil, could not be punished criminally for his acts. But this was reversed on error, 72 LEADING CEIMINAL CASES. Infants, Criminal Liability of — Confessions. and judgment rendered upon the verdict. See Commonwealth v. Keagy, 1 Ashmead, 248. In like manner, Alice de Waldbo- rough, of the age of thirteen years, was convicted of killing her mistress, and burnt. Fitzherbert's Corone, 118, 170; 12 Assizes, 30 ; 1 Hale's Pleas of the Crown, 26. An infant may be indicted for a riot. Begina v. Tanner, 2 Lord Raymond, 1284. And one, nineteen years of age, is indictable for obtaining goods under false pretences. People v. Kendall, 25 Wendell, 399. But an in- fant, two years old, is not liable, crimi- naliter, for a nuisance erected on his land. People v. Townsend, 3 Hill, 479. And one, only eleven, seised of lands, in the actual occupation of his guardian in so- cage, is not indictable for the non-repair of a bridge, ratione tenures, perhaps only because he was not the occupier. Rex v. Sutton, 5 Neville & Manning, 353 ; 3 Adolphus & Ellis, 597. The liability of infants for the crime of rape, and similar offences, and the conflict of the law in England and America on that subject, deserves particular attention. In England it has been frequently held at nisi prius, that a boy over seven, and un- der the age of fourteen years, could not, as a matter of law, be convicted of an as- sault with intent to commit a rape. Rex v. Eldershaw, 3 Carrington & Payne, 396. Vaughan, Baron, saying : " This boy being under fourteen, cannot, by law, be found guilty of a rape, except as a principal in the second degree. Prom his age, the law concludes it is impossible for him to com- plete the offence, and' that, in my judg- ment, must be held to negative the intent alleged in the first count." Rex v. Groom- bridge, 7 Carrington & Payne, 582, before Gaselee, J., is to the same effect. And this doctrine has been carried so far in England, that if the prisoner is under four- teen, no evidence is admissible that, in point of fact, he had arrived at the age of puberty, and could commit the offence of rape. Regina v. Philips, 8 Carrington & Payne, 786 ; and in Regina v. Brimilow, ' 9 Carrington & Payne, 366, the same rule was applied to a charge, of " feloniously and carnally knowing and abusing " a fe- male infant under ten years of age. See also Regina v. Jordan, 9 Carrington & Payne, 118. On the other hand, a more reasonable rule has been adopted in this country, and it has been here held, that while the pre- sumption of law is, that infants under four- teen cannot commit the crime of rape, such presumption must give way to proof, that the prisoner has arrived at the age of pu- berty, and was capable of emission, and consummating the crime. Williams v. The State, 14 Ohio, 222, where a very able opinion is pronounced by Bead, J., who said : " The common law presumes that an infant, under the age of fourteen years, is unable to commit the crime of rape, and therefore he cannot be guilty of it, or of an assault with intent to commit a rape ; and, if he be under that age, no evidence is ad- missible to show that, in point of fact, he could commit the crime. This has been the established law of England for many hundred years, nor has it been departed from in the United States, except in a single instance in the State of Massachu- setts, where it was held that a boy under the age of fourteen years, could be con- victed of an attempt to commit this offence. This doctrine proceeds upon the ground of impotency, rather than want of discre- tion ; because all persons, infants and even females, may be convicted of aiding and assisting in this offence, as well, as in other crimes, if there be proof that the infant had a mischievous discretion. The ques- tion is, shall this presumption of the com- mon law prevail in Ohio, to exempt the person under fourteen years from punish- ment for the actual commission of a rape or an attempt to commit a rape ? And, if not, to what extent will it be recognized ? And will proof of positive capacity to com- mit the offence, authorize the conviction of a person under the age of fourteen years, of the crime of rape, or an attempt to commit it ? We admit that we have much hesitation in departing from long established princi- ples 'of law, which have had the sanction of the wisest judges and the test of years. But the principles of the common law re- specting evidence and the capacity to LEADING- CRIMINAL CASES. 73 Infants, Criminal Liability of — r Confessions. commit crime, are founded in the very reason of things, the nature of man and social life, and are adopted from their in- nate truth and good sense. Those princi- ples of law which are of binding force only from the authority of truth, may be justly styled the perfection of reason ; and the obligation of the rules of the common law having this foundation, it is a maxim that, when the reason out of which the rule given, ceases, the rule itself ceases. Rape is defined to be the having un- lawful and carnal knowledge of a woman, by force and against her will. To consti- tute this carnal knowledge, there must be both penetration and emission ; both these are necessary elements in the crime of rape. Hence, before an infant has arrived at the age of puberty ; or before, by the physical laws of human nature, he can emit seed, he is incapable of committing the crime of rape. If, then, it be a fact that, prior to the age of fourteen, an infant is incapable of emission, the rule of law which fixes that as the age within which an infant cannot be convicted of rape or an attempt to commit it, is founded in rea- son, and is of binding authority ; because it proceeds upon the fact that the infant has not committed the crime and could not commit it. If it were an invariable law of human nature that an infant under the age of fourteen years could not emit seed, it would be a reasonable rule that evidence should not be permitted to contradict it ; because it would be worse than idle to in- troduce evidence to contradict that which is necessarily true. But if, in a vast majority of cases,, in- fants under the age of fourteen years, are incapable of emitting seed, then it is a reasonable and necessary presumption of law that any named infant under that age, is incapable of committing the crime ; and the presumption is strong or weak just in proportion to the rareness or frequency of the exceptions. Now, in the moist and cold climate of England and most of the countries of northern Europe, it is so sel- dom that an infant under the age of four- teen is capable of emission, that it is as- sumed as a fact that, prior to that age, he is never capable ; and hence, under that 7 age, no one can be convicted of rape. This rule there, may have reason. But, in tropical climates, where the male usu- ally arrives at puberty before the age of fourteen, the rule, instead of being founded in reason, would contradict both reason and fact. It is an admitted law of physi- ology, that climate, habit, and condition of life, have much influence in hastening or retarding the age of puberty. Different races of men differ as to the age of pu- berty. In our climate, the age of puberty is frequently earlier than in that of England or the more northern States of this Union. We have among us almost every variety of the races of men. To adopt the rule, then, which exists in England and more northern countries, where the climate, condition, and habits of the people are different, and the population mostly of one race, would not only be a departure from reason and good sense, but would be in violation of the statute itself, by withdraw- ing persons who had actually violated it, from punishment. In England they do not propose to permit guilty persons to escape, but assume the physical impossibil- ity of an infant under fourteen years, being capable of being guilty. In our State, we know that many infants under fourteen, are capable of being guilty; but that a majority are not capable, under that age. Henee we are compelled to suit the rules of law to the fact, as the rule itself has no authority but in fact. The reason of the rule, excluding proof that an infant under the age of fourteen years is capable of committing the crime of rape, ceasing, the rule itself ceases. Modified, then, to our own circumstances and condition, the law is this : An infant under the age of four- teen years is presumed to be incapable of committing the crime of rape, or an at- tempt to commit it ; but that presumption may be rebutted by proof that he has ar- rived at the age of puberty and is capable of emission and consummating the crime. See also Commonwealth v. Lanigan, 2 Bos- ton Law Reporter, 49. So in Commonwealth v. Green, 2 Picker- ing, 380, an infant under fourteen years of age was held indictable for an assault 74 LEADING CRIMINAL CASES. Infants, Criminal Liability of — Confessions. ■with intent to commit a rape, although it seems to have been admitted by the court in the same case that he could not be guilty of the crime itself; a distinction difficult to support. For if in contempla- tion of law the crime cannot be committed, and can have no legal existence, how can he be guilty of attempting it. But the grounds of this decision (Parker, Ch. J. dissenting,) are thus stated : " The law ■which regards infants under fourteen as incapable of committing rape, was estab- lished in favorem vita, and ought not to be applied by analogy to an inferior of- fence, the commission of which is not punished with death. A minor of fourteen years of age, or just under, is capable of that kind of force which constitutes an essential ingredient in the crime of rape, and he may make an assault with an. intent to commit that crime, although by an artificial rule he is not punishable for the crime itself. An intention to do an act does not necessarily imply an ability to do it ; as a man who is emasculated may use force with intent to ravish, although pos- sibly, if a certain effect should be now, as it was formerly, held essential to the crime, he could not be convicted of a rape." But, at the age of fourteen, all presump- tion in favor of the infant ceases, as has been directly adjudged. Thus, in the The Slate v. Handy, 4 Harrington, 566, a boy between fourteen and fifteen was indicted for an assault with intent to ravish. The court said, that under fourteen, a boy was deemed by law incapable of committing a rape, and, therefore, could not be con- victed of an assault with intent to com- mit; but. that after fourteen, he was pre- sumed capable, until the contrary was shown, and the prisoner was convicted. But in all cases where the defendant is under fourteen years of age, the fact of guilt-knowledge must be distinctly made out. The burden of such proof is on the government. The presumption of law in favor of in- fants under fourteen, and the necessity of satisfying the jury that the child, when committing the act, must have known that he was doing wrong, is well illustrated by the case of Rex v. Elizabeth Owen, 4 Car- rington & Payne, 236, where a girl often years of age was indicted for stealing coals. It was proved that she was standing by a large heap of coals belonging to the prose- cutor, and that she had a basket upon her head, containing a few coals, which the girl herself said she had taken from the heap. Littledale, J., in summing up to the jury, remarked: "In this case there are two* questions : First, did the prisoner take the coals ; and, second, if she did, had she at the time a guilty knowledge that she was doing wrong. The prisoner is only ten years of age, and, unless you are satis- fied by the evidence, that in committing > this offence she knew that she was doing wrong, you ought to acquit her. When- ever a person committing a felony is under fourteen years of age, the presumption of law is, that he or she has not sufficient capacity to know that it is wrong, and such person ought not to be convicted, unless there be evidence to satisfy the jury that the party, at the time of the offence, had a guilty knowledge that he or she was doing wrong." The jury returned a ver- dict of " not guilty," adding, " We do not think the prisoner had any guilty knowl- edge." So in The People v. William Davis, 1 Wheeler, C. C. 230, which was an indict- ment for larceny, the defendant being not yet fourteen years old by a few weeks, the taking was clearly proved, but no evidence was offered of his capacity to commit crime, and the jury were instructed that the law presumes an infant under fourteen incapa- ble of committing crimes, " and in order to show his liability, it was necessary to prove his capacity." And there being no evidence either way upon the point, the defendant was acquitted. The same prin- ciple was adopted in Walker's case, 5 City Hall Recorder, 137. This doctrine was again distinctly affirmed in The Queen v. Sidney Smith, 1 Cpx, C. C. 260, where a boy, ten years of age, was indicted for maliciously setting fire to a hay-rick. The act of firing was clearly proved, but there was no proof of a malicious intention. Earle, J., told the jury : " Where a child is under the age of seven years, the law presumes him incapable of committing a LEADING CRIMINAL CASES. 75 Infants, Criminal Liability of — Confessions. crime ; after the age of fourteen, lie is presumed to be responsible for his actions as entirely as if he were forty ; but be- tween the ages of seven and fourteen, no presumption of law arises at all, and that which is termed a malicious intent, a guilty knowledge that he was doing wrong, must be proved by the evidence, and cannot be presumed from the mere commission of the act." This fact of guilty knowledge may often appear from the circumstances of the case, as, if the prisoner conceals himself, denies the act, or in any way shows a conscious- ness that he was doing wrong. Thus, in the case of The State v. Mary Doherly, 2 Overton, 80, where a girl between twelve and thirteen years of age was indicted for murder, the jury were instructed, ' That if an infant is under fourteen and not less than seven, the presumption of law was, that he could not discern between right and wrong. But this presumption is re- moved, if from the circumstances, it ap- pears the person discovered a conscious- ness of wrong. That this fact of guilty knowledge may appear from the circum- stances of the case, see Stage's case, 5 City Hall Recorder, 177, where a boy of the age of eight years, was indicted for larceny of a lady's dressing-box and jewelry. The owner detected the boy going out of the house with the box under his arm; she seized him, and he tried to bite her and retain the box by force ; he then began to cry, and said another boy told him to take away the box. No other evidence of capacity was offered. The jury were told that they must be ' satisfied that he had a capacity of knowing good from evil ; that this might be proved by extrinsic testi- mony, or it might arise from the circum- stances of the case. Here a concealment and an attempt to escape appeared ; it was for the jury to say that the defendant knew that he was doing wrong.' The defend- ant was convicted. 3rd. The liability of infants above the age of fourteen. Here all authorities agree, with but a single class of exceptions, that entire crim- inal responsibility commences, and the pre- sumption of incompetency wholly ceases. Blackstone, on this point, says : " The law of England does in some cases privilege an infant, under the age of twenty-one, as to common misdemeanors, so as to escape fine, imprisonment, and the like ; and par- ticularly in cases of omission, as not repair- ing a bridge, or a highway, and other similar offences. Tor, not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires. But where there is any notorious breach of the peace, a riot, or a battery, or the like, (which infants, when full grown, are at least as liable as others to commit,) for these an infant, above the age of fourteen, is equally liable to suffer as a person of the full age of twenty-one years." See also 1 Hale ? s Pleas of the Crown, 20-22. 4th. The confessions of an infant. The question has been much discussed, whether the confessions of an infant are admissible against him, in proof of the commission of crime. And it has been sometimes thought that, as in a civil case, an infant is not bound by his admissions and declarations, so in a criminal case, his declarations of his own guilt are not ad- missible, and if admissible, are not suffi- cient proof of the commission of the crime. But this reasoning is not supported by the authorities, for they all agree that the confessions of an infant, if otherwise com- petent, are admissible against him in the same manner as confessions of adults. Rex v. Wild, 1 Moody, C. C. 452 ; Rex v. Up- church, 1 Moody, C. C. 465 ; Mather v. Clark, 2 Aikens, 209 ; Rex v. Thornton, 1 Moody, C. C. 27 ; Commonwealth v. Zard, cited in Eoscoe's Criminal Evidence, p. 38, note. This question seems to have received more consideration in this coun- try than in England. Thus, in The State v. Aaron, 1 Southard, 231, a slave of the age of ten years and ten months, was in- dicted for murder, and it was much dis- cussed whether his confessions of the crime were admissible in evidence. It was held, that they were admissible, but to furnish the ground of a conviction, they ought to be clear and pregnant, and corroborated by 76 LEADING CEIMINAL CASES. Feme Covert — Criminal Liability of — Coercion. circumstances, and made understandingly. But whether the admissions of an infant, made in pais, are or are not admissible against him, it has been thought that the plea of an infant to an action for the price of goods sold him, viz., that he was an in- fant at the time of the purchase, is not ad- missible in an indictment against the in-, fant for obtaining the goods upon false pretences ; the alleged false pretence be- ing, that the defendant at the time of the purchase avowed that he was of age. Regina v. Walker, 1 Cox, C. C. 99 ; Regina v. Simmonds, 4 Cox, C. C. 277. One of the most striking criminal trials to be found on record, was that of The State v. James Guild, 5 Halsted, 163. There the prisoner, aged twelve years and five months, was indicted for the murder of Catharine Beakes. His own confessions were the principal evidence ; the corpus delicti being otherwise proved. The court held this sufficient, and the boy was con- victed and executed. So in The State v. Mary Bostick, 4 Harrington, 563, a serv- ant girl, twelve years old, was indicted for arson. She was proved to be a " shrewd, sensible, and artful child." The question before the court was, whether her admis- sions were evidence. The chief justice said : " If she has such mental capacity as renders her amenable to law for the com- mission of crimes, she has sufficient capa- city to make a confession of guilt." But the confessions having been extorted by promises, were held inadmissible, and she was acquitted. An infant defends an indictment in the same manner as an adult. He has the same right to appear and defend himself by attorney, or in person ; it is error there- fore to assign him a guardian, and try him upon a plea put in for him by such guar- dian. Word v. The Commonwealth, 3 Leigh, 743 ; Regina v. Tanner, 2 Lord Raymond, 1284. The burden of proving infancy is said to be always on the defendant. The State v. Arnold, 13 Iredell, 184. Which fact must be proved by evidence like any other fact, for proof by inspection is not a part of our law. The consequences of a conviction for crime, seem to be the same, in the cases of an infant, as in those of other persons, and if an infant is convicted of a riot, and fined, his property is liable to pay the fine and costs, in the same man- ner as is that of an adult. Beasley v. The State, 2 Yerger, 481. E. H. B. Commonwealth v. John Neal and Elizabeth Neal. 1 May Term, 1813. Feme Covert — Criminal Liability of — Coercion. Afeme covert is not indictable for an assault and battery committed in the presence, and under the command of her husband. If a husband and wife be jointly indicted for an assault and battery, one may be convicted and the other acquitted. The defendants, being husband and wife, were indicted at the October term, in Cumberland county, in 1812, for an assault and battery. Upon a trial, which was had at the same term before Thatcher, J., the jury found the said John guilty ; and as to the said Elizabeth, they found specially " That she committed the assault 1 10 Massachusetts, 152. LEADING CRIMINAL CASES. 77 Feme Covert — Criminal Liability of — Coercion. and battery charged in the indictment, in company with, and com- manded by the said John Neal, her husband. And if this in law will make her guilty, then the jury find her guilty ; but if being in company with, and commanded by her husband, will justify or ex- cuse her in law, then the jury find that the said Elizabeth Neal is not guilty." The indictment was continued to this term for judgment upon this verdict, and now Wliitman, argued that the wife, acting under the direction and coercion of the husband; was not personally liable to conviction and punishment, and this immunity extends to every case, except those of keeping a bawdy house and a gaming house. The jury have found that the wife, in this case, acted by the command of her hus- band. 4 Bi. Comm. 28 ; 1 Mass. Rep. 391, 476 ; 10 Mod. 63, 335 ; 1 Salk. 384. Morton, attorney-general, for the Commonwealth. The la^v ex- cuses the wife, only in cases where she may be supposed ignorant of the criminality of the act ; as in larceny, &c, she may not know in whom the property of the goods is. The husband's commands are no excuse for her, where she must know, as well as he, that the action is wrong ; as in the case at bar, where she could not be igno- rant that it was unjustifiable to beat and wound, her neighbor. 1 Hawk. P. C. ch. 1, § 9, 13 ; see also Bl.. Comm. ubi. supra, and Chris- tian's notes. Curia. The general doctrine is, that a feme covert incurs no legal guilt by the commission of'civil offences, by the coercion of her husband, or even when in his presence. To this general rule, there are certain exceptions, as of crimes forbidden by the law of nature, which are mala in se, and some where the wife may be presumed the principal agent. The case at bar is not within the exceptions, and Elizabeth Neal is not guilty, and must therefore be discharged. The present state of the law upon the jointly with her husband, it appear in responsibility of married women for crime, evidence that the husband was actually seems to support the following proposi- present, when the wife committed the act, tions. his coercion will be presumed; but this 1st. There is no objection, in law, to an presumption may be rebutted by the cir- indictment against the wife alone, charg- cumstances of the case, ing her directly with the offence. 1st. There is no objection, in law, to an in- 2d. There is no objection, in law, to an dictment against the wife alone, charging indictment charging a husband and wife her directly with the crime. jointly with the commission of an offence. The coverture of the wife, and the con- 3d. If upon the trial of the wife alone, or sequent merger of her legal existence in 7* 78 LEADING CEIMINAL CASES. Feme Covert — Criminal Liability of — Coercion. that of the husband, does not operate to shield her from prosecution for any offence, or render it necessary that an indictment for her acts should include the name of her husband. The rule in civil cases, that the wife cannot be sued alone, even for her own torts, never obtained in criminal law. Thus, in The King v. Fenner, 1 Siderfin, 410 ; 2 Keble, 468, decided on the 9th of February, A. d. 1680, a mar- ried woman had been indicted, " sans so. baron," for selling fish contrary to the statute against forestalling, and having been found guilty, her counsel moved to quash the indictment, because a feme covert could not make bargains without her husband, and as all the profits of the illegal traffic belonged to him, she could not be indicted, herself, at least not without joining him. But the court said, " That for grander offences, such as rec*ancy and felonies, married wo- men were indictable without their hus- bands." See The King v. Jordan, 2 Keble, 634. It had some time before (1615) been resolved by the whole court, that married women might be indicted on the stat. 1 Elizabeth, ch. 2, concerning recusants, and for the uniformity of common prayer, and that they, like men, should forfeit 12d. for not repairing to church every Sunday and holidays. So it was resolved that a married woman was within the similar act of 23 Elizabeth, and might be imprisoned for non-compliance with it. Dr. Foster's case, 11 Coke, 61. Many old cases are to be found, where a wife has been indicted alone. Thus, in Somerset's case, 2 State Trials, 951, the Countess of Somerset was indicted as accessory before the fact, to the murder of Sir Thomas Overbury. The wife was first arraigned alone, and pleaded guilty. The husband was also tried, it is true, but they were indicted separately; and from Hume's History of England, vol. iv. ch. 47, it would appear that she was the more guilty party. So in Rex v. Crofts, 2 Strange, ,1 120, the defendant was convicted of selling gin, in violation of the 9 George 2, ch. 23. It was ob- jected in arrest of judgment, that as the defendant was a, feme covert, she could not be convicted ; or at least, that her"husband ought to have been joined in the indict- ment. But the court said, we think the con- viction right ; this is not like cases that sound only in damages. The wife may be con- victed alone for recusancy. Hobart, 96. And in The Queen v. Foxby, 6 Modern R. 11, 178, 213, 239, a married woman had been convicted of being a common scold, and had been sentenced to be ducked. Her husband was not joined in the indict- ment, although he afterwards came in and brought a writ of error, in connection with his wife, and reversed the judgment on another point. Lord Mansfield also had occasion, still later, to apply the same principle. Thus, in Rex v. Ellen Taylor, late Bent, 3 Bur- row, 1679, a married woman had been ad- judged the mother of a bastard child, and had been committed to the house of cor- rection, for disobeying an order of the justices thereon. Upon habeas corpus, it was objected that the commitment was illegal (inter alia,) because of the cover- ture. Lord Mansfield said : " A feme covert is liable to be prosecuted for crimes committed by her. This woman has dis- obeyed the order of the justices, and the 18 Elizabeth, ch. 3, prescribes the punish- ment. There is no need to summon the husband in a criminal prosecution against the wife." So, in Rex v. Sargeant, 1 Ryan & Moody, 352, a married woman was indicted and convicted with others for conspiring to procure her husband to marry her. Also, in Rex v. Sarah Hurrell, 1 Ryan & Moody, 296, the prisoner was indicted under stat. 3 & 4 William & Mary, ch. 9, § 5, for stealing goods in a lodging-house let to her. It appearing that she was a married woman, Gazelee, J., doubted whether the letting ought not to be stated to the husband, according to its legal operation, but finally "held the in- dictment good, and the prisoner was con- victed. Her husband did not live with her, nor in any manner assent to the con- tract. If a wife may thus be indicted alone, while living with her husband, a fortiori, when she is living separate and apart from him, there can be no necessity for LEADING CRIMINAL CASES. 79 Feme Covert — Criminal Liability of — Coercion. joining him in the criminal prosecution. Thus, in The State v. Mrs. Collins, 1 McCord, 355, it was held, that a woman though married, who lived separate and apart from her husband, might be indicted and convicted alone, for retailing spirituous liquors without a license. In like manner, in Commonwealth v. Lewis, 1 Metcalf, 151, the supreme court of Massachusetts held, that a married woman who lived apart from her husband might be indicted alone, and punished, for keeping a house of ill fame ; and the reasoning of the court would sanction the same doctrine, althoug"h the wife was living with her husband. Dewey, J., said : " The humanity of the criminal law does indeed, in some in- stances, consider the acts of the wife as venial, although she has in fact partici- pated with her husband in certain acts, which, on the part of her husband, would constitute an offence, as against him ; up- on the ground that much consideration is due to the great principle of confidence which a feme covert may properly place in her husband, as well as the duty of obedience to the commands of the hus- band, by which some femes covert may be reasonably supposed to be influenced in such cases. Thus, in cases of theft, or burglary, where the wife is in company with her husband, the law presumes that she acts under coercion ; and she is to be acquitted. But even this presumption, it is said, may be controlled by clear evidence that she was the principal offender. And this rule of presumption of coercion, on the part of the husband, does not prevail in relation to a case like the present. 1 Russell on Crimes, (1st ed.) 26. This is an offence, of which a feme covert may be guilty, as well as if she were sole ; and she, together with her husband, may be con- victed and punished. 1 Russell on Crimes, 433 ; 1 Salkeld, 384. And it is a general rule, that if the offence be of the character that it may be committed by her alone, without the concurrence of the husband, she may be punished alone. 1 Russell on Crimes, 26; 4 Blackstone, Comm. 29." See also Pennybaker v. The Slate, 2 Black- ford, 484. 2d.« There is no objection, in law, to an indictment charging a husband and wife jointly with the commission of an offence. No demurrer will lie to such an indict- ment, for the indictment is both joint and several, and both may be convicted, if it appear that the wife was not acting under the coercion of the husband ; or either of them may be convicted separately. Penn- sylvania v. Lovel, Addison, 18. The rule sometimes held in civil cases that a husband and wife can not commit a joint tort, (Park v. Hopkins, 2 Bailey, 411,) does not prevail in criminat law. Neither is there any ob- jection to such joint indictment, in arrest of judgment, or on writ of error ; for a joint conviction may well be supported, if the wife was an instigator, or participator in the crime. And thp wife may be con- victed alone, if the evidence does not in- culpate her husband. Thus, in Rex v. John Sf Mary Hammond, 1 Leach, C.C. 499, case 196, the defendants were jointly in- dicted for sending a threatening letter, demanding money. The wife wrote the letter, and the husband delivered it, not knowing the contents. Ashurst, J., told the jury, that if " they were of opinion that she wrote the letter herself, without any interference of her husband, and sent it by him, without his knowing any thing of the contents, she might be found guilty alone." But both were acquitted. In Somerville's case, 1 Anderson, 104, a hus- band and wife were jointly indicted and convicted of treason. In that case Ed- ward Arden and his wife were jointly charged with procuring Somerville to de- stroy the queen, and both were found guilty. In like manner in Rex v. Cross §■■ Uxor, 1 Lord Raymond, 711, a hus- band and wife were indicted for haw- ing feloniously received stolen goods ; the husband was acquitted, and the wife con- victed. So, in The Queen v. Williams, 10 Modern, 63 ; 1 Salkeld, 384, a husband and wife were indicted, for keeping a bawdy house. In arrest of judgment it was moved they could not be jointly indicted for this offence ; and Brooks's case, 2 Rolle, 8, was relied on ; but the court said, " The indict- ment is good ; keeping the house does not 80 LEADING CRIMINAL CASES. Feme Covert — Criminal Liability of — Coercion. . necessarily imply property, but may sjgnify that share of government which the wife has in a family as well as the husband." In the same case in 1 Salkeld, 383, it is stated that the objection was taken on " a motion to quash ; " and a better report of the opinion of the court is found there. In like manner in The King v. Dixon and Wife, 10 Modern, 335, the defendants be- ing indicted for keeping a .common gam- ing house, demurred (inter alia) because the indictment should be brought against the husband only, and not against husband and wife. The court observed : " This objection would have weight in it if the property or ownership of the house was the matter in question ; but it signifies nothing here, where not the property, but the criminal management of the house (in which the wife may probably have as great, nay a greater share than the hus- band,) is the fact charged. This ease is not to be distinguished from the case of The Queen v. Williams, 10 Modern, 63 ; 1 Salkeld, 384, which was an indictment against husband and wife for keeping a bawdy house, and held good ; for as there the wife may be concerned in acts of bawdry, so here she may be active in pro- moting gaming, and furnishing the guests with all conveniences for that purpose." So, in Iiegina v. Cruse, 8 Carrington & Payne, 541, a man and wife being jointly indicted for murder, were both convicted of an assault under 1 Victoria, ch. 86, § 11, and the conviction was held right. And see the late case of Regina v. Bird and Wife, 2 Eng. Law and Eq. E. 428. And in State v. Harvey and Wife, 3 New Hampshire, 65, it was held that the hus- band and wife were jointly liable to pros- ecution for a joint forcible entry and de- tainer, but that the fine should be imposed on the husband only. And in The Stale v. Bentz, 11 Missouri, 28, the same rule was recognized, the court deciding that a husband and wife might well be joined in an indictment for keeping a bawdy house. This liability of the wife to be jointly indicted with her husband, leaving the propriety of the conviction to depend upon the evidence, has, however, been sometimes lost sight of. Thus, in Com- monwealth v. Trimmer and Wife, 1 Mas- sachusetts, 476, a husband and wife were jointly indicted for breaking and entering a store, with intent to steal therein. The court said the indictment could not be supported against the wife, as she was charged with having committed the crime jointly with her husband. The attorney- general thereupon entered a nol. pros, as to her, and proceeded against the other defendant. It is conceived that the prac- tice here was erroneous, since it was im- possible for the court to say, before hear- ing the evidence, that the wife might not have been, in fact, the principal offender; the instigator of the whole transaction ; if so, there was no objection to the indict- ment being against them both. And such was, in fact, the case, the wife having committed the offence, while sole, and the husband was, on trial, acquitted on that ground. And this was clearly the view of the court in The State v. John Parkerson and Mary, his Wife, 1 Strobhart, 169, where the defendants were jointly indicted for an assault and battery, and both con- victed generally. After verdict, it was moved in arrest of judgment, 1st. That the husband and wife could not be joined for an assault and battery committed in his presence ; 2d. That the indictment did not set forth whether the assault was committed by the husband or the wife, but charged it upon both, without saying whether the husband committed it by himself, or by his wife in his presence. Both these objections were overruled, and the court said : " It is a mistake to affirm that a wife may not be indicted, con- victed, and punished, in conjunction with her husband ; while it is true that if she committed a bare theft, or even a burg- lary, by the coercion of her husband, she shall not suffer punishment ; and while it is also laid down that coeroion is to be presumed from his presence, still it is quite as clear that this is only one of those presumptions or inferences classed as pri- ma facie, that may be rebutted by testi- mony, and hence presents a question for LEADING CRIMINAL CASES. 81 Feme Covert — Criminal Liability of — Coercion. the jury, which in this case has been re- solved against the defendants, and cer- tainly not without foundation." This last case is also supported by precedent, as well as by principle ; for in Eegina v. In- gram and Wife, 1 Salkeld, 884, a husband and wife were jointly indicted, convicted, and sentenced for an assault and battery. And if jointly indicted, and the evidence be simply that the wife did the act when her husband was absent, and no authority is proved to have been given, the husband must be acquitted* Pennybaher v. The Slate, 2 Blackford, 484. 3d. If upon the trial of the wife alone, or jointly with her husband, it appear in evi- dence that the husband was actually present when the wife committed the act, his coer- cion will, in some offences, be presumed, and the wife should be acquitted. The simple fact that they were in com- pany at the commission of the offence, is thought sufficient to justify the acquittal of the wife, on the ground of coercion, if no other fact appear showing the contrary. Rex v. Knight, 1 Carrington & Payne, 116. Slight circumstances have, how- ever, been considered quite sufficient to rebut such a presumption, and to show that, in fact, the wife was rather the prin- cipal than the accessory in the offence. At the present day, indeed, the presump- tion that a wife is compelled by her hus- band to commit a crime, must be very weak, and it is not easy to see how any one's orders, even a husband's, should be a shield for criminal violations of law. It is certain that a father's commands to a child, or a master's to a servant, will not exonerate him from the consequences of his acts, even of a trespass ; and on prin- ciple, it seems difficult to discover a satis- factory reason for a difference in the two cases. The distinction, however, seems well established and recognized both in ancient and modern times. And in the laws of Ina, king of the West Saxons, who reigned in the year 712, (see Wil- kins's Leges Anglo Saxons, p. 24, art. 57,) the same principle was adopted. The provision there found has been translated thus : " Si maritus aliquid de- prmdetur, et persuadeat ad id uxorem suam,'et deprehensus sit in eo vir, tunc suam partem compenset ille, excepta uxore, quoniam ipsa superiori suo obedire debet. Si ea jurejurando confirmare audeat, se cum deprmdato non participasse, sumat ter- tiam ejus portionem." The laws of Canute on the same subject are found at p. 145 of the same work. And in Dey's case, 37 Edward 3, cited 1 Hale's P. C. 47, a wife was acquitted of harboring felons jointly with her husband : " Quia ipsa, in vita mariti sui de aliquo receptamento in pre- sentia viri sui, cui contradicere non potuit, occasionari non debet." See 8 Carrington & Payne, 553. In Kelyng, 31, it is said to have been propounded to all the judges, at the Lent assizes at Cambridge, (16 Car. 2,) " If a man and wife go both together to com- mit a burglary, and both of them break a house in the night, and enter and steal goods, what offence is this in the wife ? — and agreed by all, that it was no felony in the wife, for the wife being together with the husband in the act, the law supposeth the wife doth it by coercion of the hus- band. And so it is, in all larcenies; but as to murder, if husband and wife both join in it, they are both equally guilty." See 2 E. 3; F. Corone, 160; 27 Ass. PI. 40; F. Corone, 199. The same prin- ciple was adopted in Sarah Connolly's case, 2 Lewin, C. C. 229, where the pris- oner was indicted for uttering base coin. The evidence was,', that she had gone from house to house uttering counterfeit coin, and that her husband accompanied her to the door, but did not go in. Bay- ley, J., directed the jury to infer she was acting under the coercion of her husband, and to find her not guilty. So, in Rex v. John Wm. Price and Sarah Price, 8 Car- rington & Payne, 19, a man and wife were jointly indicted for uttering counter- feit coin. The only evidence implicating the wife was, that she was present when her husband passed the coin, and after he had received change for it, said to him, " You can take a shilling of it, and I can go and get what I want out." The jury were told that the presumption was that she acted under his coercion, and she was acquitted. 82 LEADING CRIMINAL CASES. Feme Covert — Criminal Liability of — Coercion. The frequent cases of indictments against man and wife for jointly receiving stolen goods, furnish illustrations of this presumption of coercion arising from- the presence of the husband. Thus, in Rex v. Archer, 1 Moody, C. C. 143, a husband and wife were jointly indicted for receiving stolen goods, knowing them to have been stolen. The goods were found in the house of the husband, and in the room Occupied by the wife. The judge told the jury that, generally speaking, the law does not impute to the wife those offences which she might be supposed to have con- curred in by the coercion or influence of her husband, and particularly where his house is made the receptacle of stolen goods; but if the wife appears to have taken an active and independent part, and to have endeavored to conceal the stolen goods more effectually than her husband could have done, and by her own acts, she would be responsible as for her own uncontrolled offences. The jury found both guilty ; but in the following Easter term, all the judges met and con- sidered the case, and held that as the charge against the husband and wife was joint, and it had not been left to the jury to say whether she received the goods in the absence of the husband, the conviction of the wife could not be supported, al- though she had been more active than her husband. So, in Regina v. Banks, 1 Cox, C. C. 238, it was held, that when stolen goods are found in the house of a married man, they must be considered as in his possession and not in his wife's ; and un- less there be some other fact implicating her, she ought not to be convicted. See, also, Regina v. Boober, 4 Cox, C. C. 272 ; Dalton, C. 157, p. 353. And her state- ment exonerating her husband and impli- cating herself, may perhaps be inadmissi- ble if made in her husband's presence. Regina v. Langher, 2 Cox, C. C. 134. And the fact of her hiding or destroying the goods, if done to screen her husband, is not evidence of a guilty possession. Regina v. Boober, 4 Cox, C. C. 273. And in all cases except treason it is no offence for a wife to comfort and assist her husband who has committed a felony ; owing to the legal unity of the parties' Regina v. Good, 1 Carrington & Kirwan, 185. For the same reason she cannot be indicted for stealing his goods, Regina v. Tollett, 1 Carrington & Marshman, 112; Rex v. Willis, 1 Moody, C. C. 375; nor for burning his house, Marsh's case, 1 Moody, C. C. 182 ; nor can they be guilty of conspiracy, for in law they are but one. People v. Mather, 4 Wendell, 229. In Regina v. Mathews, 1 Eng. Law and Eq. R. 549 ; 1 Denison, C. C. 549, a man and wife were indicted for jointly receiv- ing stolen goods. The evidence was that the goods were first found in their dwell- ing-house, the husband' himself not being at home. His wife, who was there, said she bought some, and her husband bought the rest. Some other evidence was given of the declarations of the husband, tend- ing to charge him. Both being found guilty, a case was reserved for the opinion of the whole court. On the argument, the court said there was not sufficient evi- dence on which to convict the wife, and the conviction was quashed as to her, but affirmed as to her husband ; and Patteson, J., said : " If the husband and wife re- ceive jointly, how do you convict the wife ? " In Regina v. Brooks, 14 Eng. Law and Eq. K. Ill, a woman was in- dicted solely for receiving from her hus- band goods previously stolen by him. The facts, that the husband stole the goods, that the wife received them from him, at the time knowing they had been feloniously obtained, and that she after- wards endeavored to prevent their discov- ery, and made false statements concern- ing them, were abundantly proved. The recorder, before whom the woman was tried, told the jury that the law presumed that she acted under her husband's con- trol in receiving them, but that this pre- sumption might be rebutted. If, there- fore, they were satisfied, that at the time she received the articles, she knew they were stolen, and in receiving them acted not by reason of any control or coercion of her husband, but voluntarily, and with a dishonest and fraudulent intent, she might be found guilty. The prisoner being found guilty, the case was reserved, LEADING CRIMINAL CASES. 83 Feme Covert — Criminal Liability of — Coercion. and the conviction quashed, Parke, Ba- ron, saying : " There is no evidence of an independent act; she did not want her husband to be found out — that was not misconduct in a ■wife." Alderson, B., add- ed : " They did not go out together to steal the things ; there was no activity on her part," etc. See 21 Law Times Re- ports, 80. So, in Regina v. Draddy and Wife, 8 Cox, C. C. 425, the husband and wife were jointly indicted for receiving stolen sugar. It appeared that the husband received the sugar, his wife not being present ; but a person going to their house to search for the stolen property, found some of the sugar in a sink in the kitchen. On ques- tioning the wife, she said she had washed away all the sugar ; that she had burned the bags which contained it, and she thought it a hard case that she and her husband should be at a loss of 41. or 51. Her counsel objected on this evidence that no case was made out against her ; that she was not present when the prop- erty was received, and that in any thing she afterwards did she might well be taken to have acted under the coercion of her husband ; and that her conduct was rather an attempt to screen him, than evidence of any felonious receiving by herself. Coltman, J., in summing up, told the jury: "If the husband received the property, knowing it to be stolen, and if the wife received it from him with the like knowledge, and with the purpose of aiding and assisting him in the object which he had in view in receiving it, by turning it to pecuniary profit, or other like manner, although prima facie she might be supposed to be acting under the coercion of her husband, that is rebutted by the active part she took in the matter with the intent above mentioned. But if the part she took was merely for the pur- pose of concealing her husband's guilt, and of screening him from the conse- quences, then I think she ought to be acquitted. A wife cannot be convicted of harboring her husband, when he has committed a felony ; and the mere cir- cumstance of her attempting to conceal what may lead to his detection, appears to come within the same principle.'' The wife was acquitted. In such prosecutions it is not necessary that the indictment aver that in receiving the goods the wife was not acting under the coercion of her husband. The State v. Nelson, 29 Maine. 329. But this presumption of coercion arising from the husband's presence, as we have said before, is slight, and easily rebutted. Wagener v. Bill, 19 Barbour, 321. Thus, in Regina v. Henry and Elizabeth Pollard, 8 Carrington & Payne, 553, note g, a man and wife were jointly indicted for setting fire- to a house, with intent to defraud an insurance company. On trial, it appeared that the man, although present, was a crip- ple and bed-ridden in the room. This was held to repel the presumption of coercion. In The King v. James and Catherine Stapleton, Jebb, C. C. 93, the prisoners were indicted for highway robbery, and tried before Bushe, C. J., at the Summer Assizes for Carlow, in 1828. It appeared in evidence that the prosecutrix, Mary Quin, was travelling alone, on foot, to- wards Dublin, when she was overtaken by the prisoner, Catherine, whom she did not know, and who accosted her, asking her how far she had to travel, and advised her to secure her money, as the road was dangerous ; she asked her how much money she had, and proposed that they should put together their respective mon- eys, and conceal them ; upon which the prosecutrix said she had but £2, and that it was well secured in a pocket-book, which, at her request, she showed the prisoner, Catherine ; the latter examined it, and returned it to her after they had travelled some time. The other prisoner, the husband, overtook them, and, after a time, left them, and then again joined them ; and after some conversation, he seized the prosecutrix and knocked her down, and his wife sat down on her head and held her down while both rifled her pockets of all the property in them. The Jiusband then desired his wife to walk on, which she did, taking with her the prose- cutrix's bonnet ; the husband then at- tempted to ravish the prosecutrix, and on her resistance, beat and bruised her in a 84 LEADING CRIMINAL CASES. Feme Covert — Criminal Liability of — Coercion. cruel manner, and tore off her clothes and threw them about the road. Her screams brought four persons to her as- sistance, who rescued her, and pursued and apprehended the prisoner. In sum- ming up the evidence, the learned judge told the jury, that if they believed that the woman acted under the coercion of her husband, they ought to acquit her ; and if they believed that she acted volun- tarily, and without coercion, they ought to find her guilty, if they believed the evidence. The jury found her guilty, and the learned judge reserved for the consideration of the judges the question, whether the conviction of the wife was legal, on two points ; first, whether the offence was one in which the coercion of the husband constitutes a defence for the wife. Secondly, if it were, whether, the existence of coercion ought not to be inferred from the presence of the husband as a legal conclusion, without leaving any question upon it to the jury. The nine 'judges held that the question was prop- erly submitted, and that the conviction was therefore right. It seems, also, that the presumption does not arise unless the husband is actu- ally present when the act is done. In Rex v. Sarah Morris and John Morris, Eussell & Ryan, C. C. 270, a wife, by her husband's order and procuration, but in his absence, knowingly uttered a forged order and certificate for the payment of prize- money. Held, that the presumption of coercion did not arise, as the husband was absent, and that the wife was prop- erly convicted of uttering, and the hus- band of procuring. So, in Rex v. Martha Hughes, 2 Lewin, C. C. 229, the defend- ant, a married woman, was indicted for forging and uttering bank-notes. A wit- ness stated at the trial, that in conse- quence of some conversation with the prisoner's husband, he went to his shop, but the husband was not at home ; the. wife beckoned the witness into another room, when the witness told her what her husband had said. The wife then sold the witness three forged notes. After the bargain was closed, and while the witness was putting up his forged notes, the hus- band looked into the room and said : " Get on with you ; " but did not come in. The wife was held to have done the act alone, and: that the presumption of her husband's coercion did not apply, since he was not actually present taking any part in the transaction. The coercion must be at the time of the act done ; but if the act is done in his absence, no subsequent act of his can change the wife's act. And although the husband is present, the circumstances may be sufficient to show that the wife was the principal offender, and that if any coercion existed, it was on the part of the female. Thus, in The City Council v. John Van Roven and E. Van Roven, his wife, a sole dealer, 2 McCord, 465, the defendants were jointly prosecuted for a sale of spirituous liquors by the wife, who was a sole dealer, under the laws of that State. The hus- band was present in the shop, when the sale was made, but the shop was kept by the wife. It was objected that the sale was the act of the husband, and not of the wife, for which she was not responsible. But Mr. Justice Nott said : " It is, how- ever, contended, that if there was a sale, it was by the husband and not by the wife ; and that, although a wife may be presumed to act under the influence of a husband, a husband is never to be pre- sumed to act under the influence of the wife. It is true, the husband and wife, in contemplation of law, are considered, in many respects, as one person, and the husband being primus inter pares, what- ever the wife does in his presence, is pre- sumed to be done under his control or coercion. The same principle of law vests the personal estate of the wife in the husband, and gives him absolute do- minion over it. But in the progress of civilization and the extension of com- merce, an artificial state of society has grown up, incompatible with that state of simplicity from which many rules of the common law have been derived. A feme covert sole trader is a new species 'of body corporate, not known in former times. The common law did not contemplate a case where a wife might hold property separate and apart from her husband ; LEADING CRIMINAL CASES. 85 Eeme Covert— .Criminal Liability of — Coercion. might deal, trade, and traffic, enter into contracts, sue and be sued, in the same manner as if she were sole. Such a change in the relative rights and powers of husband and wife must give a different operation to the rules of law by which they are to be gpverned. While the right and disposition of the property re- mains in the husband, any intermeddling of the wife is presumed to be as his agent, and under his influenpe. But when the dominion is transferred to rjer, she must have it with all ' the rights and appurte- nances thereunto belonging.' All the property in this store belonged to the wife. The husband could not sell a gill of whis- key but -by her permission. Whatever he did, then, in her presence, must be considered as her act. Any other view of the subject would render the ordinance in such a case almost nugatory. The wife could not be convicted when selling in the presence of the husband, because she would be presumed to act under his coercion. The husband could not be convicted, because,, the sceptre having departed from his hands, he is not em- braced in" the law." It is a question entirely for the jury, whether the wife did act from her own free and uncontrolled will, although her hus- band was present at; the time; see The King v. Stapleton, Jebb, C. C. 93, and it seems their finding a general verdict of guilty, is conclusive on this point. See Uhl's case, 6 Grattan, 711. It is not in all offences, that this presumption of coercion is allowed. It may not be positively settled where the line of separation is, bufrfor cer- tain crimes the wife is responsible, although committed under the compulsion of her husband. Such are murder* Davis v. The State, 15 Ohio, 72 ; 1 Hale's Pleas of the Crown, 45 ; 2 Carrington & Kirwan, 903 ; — homicide, 1 Hale's Pleas of the Crown, 47; — treason, Somefville's case, 1 Ander- son, 104.; Somerset's case, 1 State Trials, 28, 29 ; — and apcording to some authori- ties, robbery, 1 Russell on Crimes, 18; Hawkins, P. C, b. 1, ch. 1, §, 11; The King v. Stapleton, Jebb, C. C. 93. But see Rex v. Knight, 1 Carrington & Payne, 116, note (a) ; 8 Carrington & Payne, 8 542 ; Reginav. Buncombe, 1 Cox, C. C. 183, where a different opinion is expressed. Blackstone says, " Murder and the like." It seems also that perjury, Regina v. Dicks, 1 Russell on Crimes, 19; adultery; and many other offences, might be included in the list of exceptions, in which no pre- sumption of coercion could be satisfactorily drawn. We have before seen, that in proceed- ings against husband and >wife for their joint act, the judgment, if a fine, should be only against the property of the hus- band, 3 New Hampshire, 65 ; at least, the judgment should 'not be against her alone. Thus, in Rather and Wife v. The State, 1 Porter, 132, a man and wife were complained of for obstructing the highway by the erection of a fence which was a nuisance. The husband' was acquitted, and the wife convicted and adjudged to pay a fine. * This judgment was afterwards reversed for error, on the ground that the judgment should have been against both husband and wife,, although the wife was actually the guilty party. Stafford, Jus- tice,' said : " The last assignment presents for our consideration, the question whether, for an offence of this kind, a, feme covert is subject to a conviction and judgment for the forfeiture, without being joined with the husband. To establish error in' the judgment, reference is made to Reeves' Domestic Relations, p. 69, where it is said, that ' for offences by the wife against the laws, where the punishment inflicted is nothing more than a fine, the husband is liable with the wife in all cases.' That it is otherwise where imprisonment or cor- poral punishment "is to be inflicted. He also says : ' Jf the wife be liable to the penalty of a statute, the husband must be a party to the action or information.' The principle is . said to be general, that for fines and forfeitures incurred by the act of the wife, for which the husband is^ liable, either separately or conjointly with' his wife, he must be made a party to the judgment, and equally subject to arrest and imprisonment, to enforce the payment. This Hoctrine is more particularly appli- cable to arrests under civil process ; but where the penalty consists of a pecuniary 86 LEADING CRIMINAL CASES. Feme Covert — Criminal Liability of — Coercion. forfeiture merely, the principle is the same, regardless of the form of the prosecution. The policy of the rule is to create a suffi- cient inducement' for the husband to exert himself to discharge the debt, and exonerate both. For the commission of various indict- able offences, especially for crimes of the higher grade, by a, feme covert, she may be punished without her husband, if he were not present or in any manner encouraging or assenting to them. It is a legal presump- tion, that whatever the wife does in pres- ence of her husband, is done under his coercion, so as to subject him to the pun- ishment, and, in respect to some offences, to exonerate hsr ; yet the husband may show the contrary, that the act was com- mitted against his will, and thus discharge himself from liability to any infamous or corporal punishment, though the wife be subject to the same. There are crimes mala in se, for the commission of which by the wife, the presence and presumed coer- ■ cion of the husband afford her no impunity — such as treason, murder, etc. This case must be governed by the law applicable to the inferior grade of crimes and misde- meanors ; and the *ature of the offence, and character of the punishment, more than the form of the prosecution, must de- termine the relative liability of the parties. In New York, it has been held, that the husband was liafcle in a qui tarn action for a forfeiture under their statute, incurred by the wife, by retailing liquors in his ab- sence. 10 Johnson, 256. Besides the policy of the principle already alluded to, the additional reason exists for the liability of the husband, that being entitled to his wife's portion, and all her earnings, he alone has the means of discharging the forfeiture. As respects the form or char- acter of this prosecution, it is considered sufficient to say, that it is in the nature only of an information to recover a fine or forfeiture for the violation of a • penal statute — that having been commenced, as it should be, against the husband ■ as well as the wife, she was not subject to a con- viction, unless he had heenalso convicted. That on the acquittal of the husband^ the ■wife was also entitled to her discharge ; consequently there was error in the judg- ment for which it must be reversed." See 1 Cheves,- 120. In like manner, under a penal statute, if the wife violates the law, the husband may be liable alone for the penalty. In Hasbrouck v. Weaver, 10 Johnson, 247, a married woman had, with- out a license, sold liquor in her husband's house, during his absence, contrary to a statute of the State. The husband was held liable, in a suit against him alone, 'for the penalty given by the statute ; and the court observed : " The sale by the wife of the defendant, in his house, was a sale by the defendant, for which he must be deemed responsible, in a civil suit, as for his own act." See also The Attorney- General v. Riddell, 2 Tyrwhitt, 523. The same rule is applied in criminal law. See Williamson v. The State, 16 Alabama, 431. The onus of proving that a woman, in- dicted as a single woman, ftfr crime, was at the time married, is of course upon her. If she leaves that fact doubtful, it has been said she can claim no benefit from such a de- fence. See Davis v. The State, 15 Ohio, 72. ' Of course if the female defendant is described in the indictment as wife, that js sufficient evidence of the fact. Rex v. Knight, 1 Carrington & Payne, 1-16. At the sessions at the Old Bailey, Dec. 7, 1664, Thomas Wharton and Jane Jones were jointly indicted for burglary. The woman refused to plead to the name of Jones, but pleaded she was the wife of Wharton. The name was then altered.by the grand jury to" Jane Wharton, alias Jones, spinster. She then pleaded not guilty, but failing to prove on the trial that she was married to Wharton, she was found guilty, and judgment given against her. Kelyng, 3 7. In like manner, in Rex v. James Hassal and Sarah Hassal, 2 Carrington & Payne, 434, two persons were indicted for larceny, the female being described as a single woman. It appearing on the trial, that the prisoners had, during the commis- sion of the crime, and after then; arrest, spoken of each other as husband and wife, and one witness testified that he had known them for two ye^rs, during which time they lived together, and passed as hus- band and wife, and were reputed to be so, the woman's counsel claimed that this was LEADING CRIMINAL CASES. 87 Insanity — Delusion — Medical Testimony. sufficient evidence that the parties were married, and that the woman was entitled to an acquittal. But Garrow, B., thought that although it was not absolutely neces- sary to give direct proof of an actual mar- riage, yet such evidence must be produced as would satisfy the jury that they were in fact husband and wife ; and that this evi- dence was by no means sufficient; and they were both convicted. Whether it would be sufficient for her to prove a mar- riage de facto, but not de jure, does not seem to have been . directly adjudged. Upon principle, we should say that such a defence, being in its nature somewhat technical, it was incumbent upon the party claiming it, to bring herself fully and en- tirely within it, and that an illegal mar- riage would be no defence. See Regina- v. Good, 1 Carrington & Kirwan, 185. The fact however that she is described in the indictment as a single woman, and • that she pleaded generally to- the indict- ment .as such, will not estop her from proving her coverture. Thus, in Regina v. Thomas Woodward and Margaret Wood- ward, 8 Carrington & Payne, 561, the pris- ' oners werg jointly indicted for larceny, and the female was described as a single woman. It appearing on the trial that she was the wife of the other party, the jury were directed to acquit her, although she had pleaded to the indictment describ- ing her as single. If the indictment de- scribe her as a married woman, that of course would obviate the necessity of any proof of the fact on her part, and if any advantage could result from such fact, she would be entitled to it, in the same . manner as though it had appeared in evidence from the defence. But if a person is described as a married wo- man in the indictment, the prosecution are not obliged to prove that she was mar- ried, such a description being but matter of addition, which, if wrong, must be ex- cepted to by plea in abatement, and a plea of not guilty is a waiver. Commonwealth v. lewis, 1 Metcalf, 151. Neither is it any gr*ound for quashing an indictment, or ar- resting judgment, that a married woman is described as a " matron," unless she is prejudiced thereby. The State v. Nelson, 29 Maine, 329. The foregoing review is believed to con- tain most of the adjudications upon the responsibility of married women for their criminal acts, and a careful examination of them tends to convince us, that cover- ture is but a slender shield, at the present day, for violations of law ; and the doctrine of coercion of the husband over the wife, seems seldom applicable, and of little if any avail where the wife is proved to have taken an active part in the transaction. E. H. B. Commonwealth v. Abner Rogebs, Jr. 1 March Term, 1844. Insanity — Delusion — Medical Testimony.. A party indicted is not entitled to an acquittal on the ground of insanity.jf, at the time of the alleged offence, he had capacity and reason sufficient to enable him to distinguish be. tween right and wrong, and understood the nature, character, and consequences of his act, and had mental powers sufficient to apply that knowledge to his own case. "Where the delusion of a party is such, that he has a real and firm belief of the existence of a fact which is wholly imaginary, and under that insane belief he does an act which 7 Metcalf, 500, more fully reported in pamphlet, Rogers' Trial. 88 LEADING CEIMINAL CASES. Insanity — Delusion — Medical Testimony. would be justifiable if such fact existed, he is not responsible for such act. Nor is a party responsible for an act done under an uncontrollable impulse, which is the result of mental disease.. Where professional men, who have long been conversant with insanity in its various forms^ and have had the superintendence of insane persons, attend the trial of a party who is in- dicted for a crime, and whose defence is insanity, and hear the testimony in the case, their opinions, on the question whether the party was insane, are competent evidence, though they never personally examined the party. A jury is authorized to find that a party, who is indiated, was insane, at the time of the alleged offence, if the preponderance of the evidence is in favor of his insanity. 1 The defendant, a convict in the State Prison, at Charlestown, Mass., was indicted for the wilful murder of Charles Lincoln, the warden of the prison, on the 15th day of June, a. d. 1843, by stabbing him with a shoe knife. The fact of killing was clearly proved,-and the sole defence was insanity. * The homicide took place on Thurs- day, and the evidence tended to show that, commencing on Monday night previous, and continuing with increasing aggravations up to some period subsequent to the warden's death, the prisoner was laboring under some powerful hallucination; that he was at times in great distress and apprehension ; that he declared he heard the voices of his fellow prisoners; confined in distant parts of the prison, and also some of the officers speaking to him, and threatening him with danger ; telling him that poisonous substances were mingled in his food ; that a fatal or dangerous game was playing upon him, which he could not long survive ; that the warden was going to take him up tp the old prison, shut him up, and keep him there till he was carried out feet first; that he expressed *his fears and apprehensions at various times to different persons, during the three days prior to the homicide, and particularly and frequently stated that the warden was going to shut him up, and that if he did he should not live three days ; he should be carried out feet first ; and other statements of a like kind. His predominant fear seemed to be that he was to be shut up by the warden, and the consequence would be that he should suffer instant death. On the afternoon of the homicide the prisoner saw the warden entering the shop where he was at work, and under the influence of his delusion, which then appeared to be at its crisis, and in full possession of his mind, he probably imagined the time had come for his imprisonment in the old prison, and his consequent death ; impelled by a fear of his impending danger, he rushed upon the object of- his fear, and averted his own death, as he supposed, by taking the life of the warden. Several medical gentlemen, and superintendents of insane asylums, some of whom had, and others had not, made a personal examination 1 The following statement of the case is substituted for the Reporter's abstract. LEADING CRIMINAL CASES. 89 Insanity — Delusion — Medical Testimony. of the prisoner, testified that in their opinion he was unquestionably- insane. The prisoner's counsel (George Bemis, Esq., and George Tyler Bigelow, Esq., now. Mr. Justice Bigelow," of the Supreme Judicial Court of Massachusetts,) claimed upon this and the«other evidence of the case, that if the jury were satisfied that the prisoner, when he committed the homicide, was laboring under a delusion which over- powered his will, and" deprived him of self-control, and the act was connected with that delusion, he was entitled to an acquittal. How entirely that position was sustained by the facts and the law, the verdict of acquittal and the instruction of the court to the jury furnish sufficient answer. The charge of the court was thus deliv- ered by Shaw, C. J. In order to constitute a crime, a person must have intelligence and capacity enough to have a criminal intent and pur- pose; and if .his reason and mental powers are either so deficient that he has no will, no conscience or controlling mental power, or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a. responsible moral agent, and is not punishable for criminal acts. But these are extremes easily distinguished, and not to be -mis- taken. The difficulty lies between these extremes-, in the cases of partial insanity, where the mind may be clouded and weakened, but not incapable of remembering, reasoning, and judging, or so per- verted by insane delusion, as to act under false impressions and influences. In these cases, the rule of law, as we understand 'it, is this : A man is not to be excused from responsibility, if he has capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act he is then doing ; a knowl- edge and consciousness that the act he is doing is wrong and crim- inal, and will subject him to punishment. In order to be responsible, he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him ; that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty. On the contrary, although he may be laboring under partial in- sanity, if he still understands the nature and character of his act, and ' its consequences ; if he has a knowledge that it is wrong and crim- inal, and a mental power sufficient' to "apply that knowledge to his own case, and tp know that, if-he does the act, he will do wrong, and receive punishment ; such partial insanity is not sufficient to exempt him from responsibility for criminal acts. If, then, it is proved, to the satisfaction of the jury, that the mind 8* 90 LEADING CEIMINAL CASES. Insanity — Delusion — Medical Testimony. of the accused was in a diseased and unsound state, the question will be, whether the disease existed to so high a degree, that for the time being it overwhelmed the reason, conscience, and judgment, and whether the prisoner, in committing the homicide, acted from an irre- sistible and uncontrollable impulse. If so, then the act was not the act of a voluntary agent, but. the involuntary act of the body, with- out the concurrence of a mind directing it. The character of the mental disease, relied* upori to excuse .the accused in this case, is pastial insanity, consisting of melancholy, accompanied by delusion. The conduct may be in many respects regular, the mind acute, and the conduct apparently governed by rules of propriety, and at the same time there may be insane delu- sion, by which the mind is perverted. The most common of these cases is that of monomania, when the mind broods over one idea and cannot be reasoned out of it. This may operate as an excuse for a criminal act in one of two modes. 1. Either the delusion is such that the person under its influence has a real and firm belief of some fact, not true in itself, but which, if it were true, would excuse his act ; as where the belief is, that the party killed had an immediate design upon his life, and under that belief the insane man kills in supposed self-defence. A common instance is where he fully believes that the act he is doing is done by the immediate command of God, and he acts under the delusive but sincere belief that what he is doing is by the command of a superior power, which supersedes all human laws, and the laws of nature. 2. Or this state of delusion indicates to an experienced person, that the mind is in a diseased- state ; that the known tendency of that diseased state of the mind is to break out into sudden paroxysms of violence, venting itself in homicide or other violent acts towards friend or foe indiscriminately; so that although there were no- previous, indications of violence, yet the subsequent act, connecting itself with the previous symptoms and indications, will enable an experienced person to say that the outbreak was of such a character, that for the time being it must have overborne memory and reason ; that the act was the result of the disease, and not of a mind capable of choosing ; in short that it was the result of uncontrollable impulse, and not of a person acted upon by motives, and governed by the will. The questions, then, in the present case will be these: 1. Was there such a delusion and hallucination ? 2. Did the accused act under a false but sincere belief that the warden had a design to shut him up, and, under that pretext, destroy his life ; and did he take this means to prevent it ? 3. Are the' facts of such a character, taken in connection with the opinions of the professional witnesses, as to induce the jury to. believe that the accused had been laboring for 92 LEADING CRIMINAL CASES. Insanity — Delusion — Medical Testimony: wound described would be an adequate cause, or whether such wound was, in their opinion, the actual cause of the death, in the particular case. Such question is commonly asked without objec- tion; and the judicial proof of the fact of killing often depends wholly or mainly upon such testing of opinion. It is upon this ground, that the opinion of witnesses, who have long been conversant with insanity in its various forms, and who have had the care and superintendence of insane persons, are received* as competent evi- dence, even though they have not had opportunity to examine the particular patient, and observe the symptoms and indications of dis- ease, at the time of its supposed existence. It is designed to aid the judgment of the jury, in regard to the influence and effect of certain facts, which lie out of the observation and experience of persons in general. And such opinions, when they come from persons of great experience, and in whose correctness and sobriety of judgment just confidence can be had, are of great weight, and deserve the respectful consideration of a jury. But the opinion of a medical man of small experience, or of one who has .crude, and visionary notions, or who has some favorite theory to support, is entitled to very little con- sideration. The value of such testimony will depend mainly upon the experience, fidelity, and impartiality of the witness who gives it. One caution, in regard to this point, it is proper to give. Even where the me'dical or other professional witnesses have attended the whole trial, and heard the. testimony of the other witnesses, as to the facts and circumstances of the case, they are not to judge of the credit of the witnesses, or of the truth of the facts testified by others. It is for the jury to decide whether such facts are satisfactorily proved. And the proper question to be put to the professional witnesses is this : If the symptoms and indications testified to by other witnesses are proved, and if the jury are satisfied of the truth of them, whether, in their-opinion, the party was insane, and what was the nature and character of that insanity ; what state of mind did they indicate ; and what they would expect would be the conduct of such a person, in any supposed circumstances. . See 1 M. & Rob. 75. The jury, after being in consultation several hours, came into- court and asked instructions upon these two questions ; " Must the jury be satisfied, beyond a doubt, of the insanity of the prisoner, to entitle him to an acquittal ? And what degree of insanity will amount to a justification of the offence?" In answer to the first of these questions, the chief justice repeated his former remarks on the same point, and added, that if the prepon- derance of the evidence was in favor of the insanity of the prisoner, the jury would be authorized to find him insane. In answer to the LEADING CRIMINAL CASES. 93 Insanity — Delusion — Medical Testimony. second question, the chief justice added nothing to the instructions which he had previously given. The jury afterwards returned a verdict of " not guilty, by reason of insanity." & D. Parker, for the Commonwealth. G. T. Bigelow and G. Bemis, for the defendant. In this interesting case three points are involved, which is designed to make the subject of this note. 1st. What is such insanity as exempts from punishment. 2d. Of the evidence competent on the issue of insanity, and especially of the opinions of witnesses on that subject. 3d. The degree of proof sufficient to authorize a jury to find insanity. Of each of these in. their order. And 1st. What insanity is an excuse for crime. It is foreign to the purpose of this note to enter into any general discussion of this terrible malady, its subtle and mysterious nature, its various causes, its growth and progress, or its manifold symptoms and manifestations. Such an examination more properly belongs to a treatise on medical jurisprudence, or to an independent and separate volume on insanity itself. Neither is it our design to examine the correctness or propriety of the result of any of the in- teresting and important trials on record, where the defence of insanity has been set up. Juries may, and doubtless have, erred on the one side and the other, in their ap- plication of the just and true principles of the common law to individual cases as they came before them. And the apparent in- consistency of some of their recorded ver- dicts, essentially increases the painful un- certainty attending the administration of this perplexing branch of criminal law. But our present limits do not allow us to dwell upon either of these aspects of the subject, but simply to present a summary of the principles of law by which insanity is to be tested, as we can gather them from ' the language of courts and judges to whom has fallen the duty of expounding and ex- plaining them. Every reader conversant with the course of English trials, cannot fail to have ob- served that, notwithstanding all the fluctu- ations and inconsistencies of opinion among the most eminent and learned judges, their vague generalities and loose expressions, a gradual advance in accuracy, clearness, and reason in the law of insanity is per- ceptible, as laid down in modern trials, when compared with the doctrines of Lord Coke, Hale, Fitzherbert, and others, of early time. One of the most eminent of* those early writers declares that " such a person as laboring under melancholy dis- tempers, hath yet ordinarily as great un- derstanding as ordinarily a child of four- teen hath, is such a ^person as may be guilty of treason or felony." 1 Hale's Pleas of the Crown, 30. And even as late as 1723, we find this language used by Mr. Justice Tracy, on the trial of Arnold for shooting at Lord Onslow : — " It is not," said he, " every kind of frantic humor, or something unaccountable in a man's actions, that points him out to be such a madman as is exempted from punishment ; it must be a man that is totally deprived of his understanding* and memory, and doth not know what he is doing no more than an infant, than a brute, or wild beast ; such a one is never the. ob- ject of punishment." 8 Hargrave, State Trials, 322; 16 lb. 764. True it is, such an one is never the ob- ject of punishment, b»t if the converse is to be held true, that all others are amen- able, then absolute idiocy is the only shield against the arm of the criminal law. Doc- trines like these could hardly be expected long to withstand the advance of scientific knowledge, and the diffusion of more ac- curate information concerning the exist- 94 LEADING CRIMINAL CASES. Insanity — Delusion — Medical Testimony. .ence aud manifestations of a diseased and disordered%iind. The first advance from the old doctrines was, that if the accused had so far lost the use of his understanding as not to know right from wrong, he was not responsible. This test was afterwards so far modified, as to be applied to the pre- cise act for which the prisoner was ar- raigned, and it has now long been the rule usually applied in the English courts, that if the accused has reason sufficient to dis- tinguish right from wrong, in reference to his contemplated act, or, 'to speak more accurately, reason sufficient to know that the act was contrary to law, he is amen- able to justice. And this test has been adhered to, with some tenacity, by the English judges. Several instances of their reported language will be found cited in this note. Lord Brougham, in the memor- able debate in the house of lords, occa- sioned by the acquittal of McNaughten, 'for murder, in 1843, thus decidedly ex- pressed himself: — " If the perpetrator knew what he was doing ; if he had taken the precaution to accomplish his purpose; if he knew at the time of doing the«desperate act, that it was forbidden by the law, that. was his test of sanity ; he cared not what judge gave another test ; he should go to his grave in the belief that it was the real, sound, and consistent test." Sir James Mansfield, [not Lord Mansfield,] in Bellingham's case, 5 Carrington & Payne, 169, note, applied this test in its most general form to a pris- oner indicted for murder. " In order to support such a defence," said he, " it ought to be proved by the most distinct and un- questionable evidence, that the prisoner was incapable of judging between right and wrong ; in fact, it must be proved beyond all doubt that at the time he com- mitted the atrocious act with which he stood charged, he did not consider that murder was a crifn* against the laws of God and nature ; and that there was no other proof of insanity which would ex- cuse murder or any other crime ; that, in the species of madness called ' lunacy,' persons are subject to temporary parox- ysms, in which they are guilty of acts of extravagance, such, persons committing crimes when they are not affected by the malady, would be, to all intents and pur- poses, amenable to justice; and .that so long as they could distinguish good from evil, they would be answerable for their conduct ; and that in the species of in- sanity in which the patient fancies the ex- istence of injury; and seeks an opportunity of gratifying revenge by some hostile act, if such a person is capable in other re- spects of distinguishing right from wrong, there would be no excuse for any act of atrocity which he might commit under this description of derangement." But the principles here advanced are so shocking, so contrary to one's moral sense, that it is not strange they should have been subse- quently disapproved, even by Mansfield's successors.. Yet, such a deep impression had the old authorities made upon the judicial mind of England, that we find Lord Lyndhurst, in 1831, expressly approving of the doctrines in Bellingham's case, although'he furnished a much milder test to the jury in the case then before him. Rex v. Offbrd, 5 Car- rington & Payne, 168. The prisoner was there indicted for murder. His defence was insanity. It appeared that he labored under the notion that the inhabitants of Hadleigh, and especially the deceased, were continually issuing warrants against his life, and he would frequently, under the same notion, abuse persons whom he met in the street, and with whom he had no dealings of any kind. In his pocket was found a list of conspirators against his life ; also, another paper, headed " This is the beginning of an attempt against my life." The chief baron told the jury that they must be satisfied, before they could acquit the prisoner on the ground of in- sanity, that he did not know what the effect of his act would be, if fatal, with, reference to the crime of murder; and that the question was, whether he knew he was committing an offence against the laws of God and nature. Under this evidence and these instructions the prisoner was acquitted, and with ap- parent good reason, for the delusion in that case was the same as in our leading case of Commonwealth v. Roaers. and th« LEADING CRIMINAL CASES. 95. Insanity — Delusion — Mefdical Testimony. cases are in their facts and results very similar. The jury in Offord's case, acted on the sound principle, although it does not seem to have been intimated to them from the bench. How much clearer and more satisfactory a guide was given to the jury for their examination of this deli- cate, subtle, and mysterious subject, in Roger's- case than in Offord's case, only twelve years previous. Bowler's case, before Justice Le Blanc, in 1811, furnishes another painful illustra- tion of the application of this loose test of legal insanity. The court there told the j ury " it was for them to determine whether the prisoner, when he committed the of- fence, was capable of distinguishing be- tween right and wrong, or under the in- fluence of any illusion in respect to the prosecutor, which rendered his mind at the moment insensible of the nature of the act he was about to commit ; since, in that case, he would not be legally responsible for his conduct. On the other hand, pro- vided,' when he committed the offence, he was capable of distinguishing right from wrong, and not under the influence of such an illusion as disabled him from discover- ing that ,he was doing a wrong act, he would be answerable to the justice of the country, and guilty in the eye of the law.'' Lord Ferrer's case, before the house of lords, in 19 Howell, State Trials, 886, adopts the same test as Bowler's case. The power of distinguishing right from wrong was again made the test of insanity, in Regina v. Higginson, 1 Carrington & Kirwan, 129, before Maule, J., who said to the jury : " If you are satisfied that the prisoner, at the time of committing the of- fence, was so insane that # he did not'know right from wrong, he should be acquitted on that ground. But if you think he did know right from wrong, he is responsible for his acts, although of weak intellect." Tindal, C. J., uses similar language in Regina v.Vavgkan, 1 Cox, C. C. 80, where he informed the jury that "it was not mere eccentricity or singularity of manner, . that will suffice to establish the plea of in- sanity ; it must be shown that the prisoner had no competent use of his understand- ing, so as to know that he was doing a wrong thing in the particular act in ques-# tion." This is much better than the pre- ceding, since it is confined to the act in question. Lord Denman, at the trial of Oxford for shooting at the queen, in 1841, said : "If you think that the prisoner was, at the time, laboring under any delusion which prevented him from judging of the effects of the act he had committed, you cannot find him guilty. But if, though laboring under a delusion, he fired the loaded pistols at the queen, knowing the possible result, though forced to the act by his morbid love of notoriety, he is respon- sible, and liable to punishment." So in- the more recent case of Regina v. Stokes, 3 Carrington & Kirwan, 185, Kolfe, B., told the jury that " every man is held responsible for his acts by the law of his country, if he can discern right from wrong. This subject was, a few years ago, carefully considered by all the judges, and the law is clear upon the subject. It ia true that learned'speculators, in their writ- ings, have laid it down, that men with a consciousness that they were doing wronc, were irresistibly impelled to commit some unlawful act. But who enabled them to dive into the human heart, and see the real motive that prompted the commission of such deeds. It has been urged that no motive has been shown for the commission of this crime ; but it is a dangerous ground to take to say that a man must be insane, because men fail to discern the motive for his act." See also Regina v. Laylon, 4 Cox, C. C. 149, to the same effect. So in Regina v. Allnut, before the same eminent judge in 1848, a boy twelve years of age was convicted of poisoning his grandfather, under circumstances showing great contrivance and deliberation. The defence was that the act was done under an irresistible impulse, which amounted to insanity. The jury were told, " the wit- nesses called for the defence described the prisoner as acting from uncontrollable im- pulse, and they made other statements, of the v.alue of which it would be for the jury to decide ; but he must say that it was his opinion that such evidence ought to, be scanned by juries with very great jealousy and suspicion, because it might tend to 96 LEADING CRIMINAL CASES. Insanity — Delusion — Medical Testimony. perfect justification of every crime that was committed. What was the meaning of not being able to resist moral influence i Every crime was committed under an in- fluence of such a description, and the ob- ject of the law was to compel persons to control these influences ; and if it was made an excuse for a person who had com- 1 mitted a crime, that he had been goaded to it by some impulse, which medical men might choose to say he could not control, he must observe that such a doctrine would be fraught with very great danger to society." And Parke, Baron, seems to have had this case in mind in the sub- sequent case of Regina v. Barton, 3 Cox, C. C. 2 75, 'where the prisoner was indicted for the murder of his wife, by cutting her throat with a razor. That distinguished judge told the jury " there was but one question for their consideration, viz., 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 character of the deed he was commit- ting, and if so, whether 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 Rolfe's views of such cases ; that learned judge having expressed his opinion to be that the excuse of an irresistible im- pulse, coexisting 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 influence of some irresistible im- pulse. Something more than this was necessary to justify an acquittal on the ground of insanity, and it would be there- fore 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 alto- gether deprived him of knowledge that he was doing wrong." 'So in Regina v. Pate, before Baron Alderson, in 1850, for an assault upon the queen, the species of insanity relied upon was that of an uncontrollable impulse driving the prisoner on, against his will, to commit the offence. The medical gentle- men expressed a decided opinion that the prisoner was insane and not responsible, but the learned judge said, in summing up, "It is not because a man is insane that he is unpunishable; and I must say, that upon this point -there exists a very grievous delusion in the minds of medical men. The only insanity which excuses a man for his acts, is that species of delu- sion, which conduced to, and drove him to commit the act alleged against him. The jury ought to have clear proof of a formed disease of, the mind, a disease ex- isting before the act was committed, and which made the accused incapable of know- ing at the time that it was a wrong act for him to do. The law does not acknowledge the doctrine of an uncontrollable impulse, if the person was aware it was a wrong act he was about to commit. A man might say he picked a pocket from some uncontrollable impulse, and in that case the law would have an uncontrollable im- pulse to punish him for it. The question you have to decide is, are you satisfied that at the time he was suffering from a disease of the mind which rendered him incapable of judging whether the act he committed was a right or wrong act ? If you are not satisfied of this fact you must' say he is guilty." The English formula, already so often repeated, was applied in The State v. Spencer, 1 Zabriskie, 196, where Chief Justice Hornblower said to the jury : " The simple question for you, is, whether the accused at the time of do- ing the act was conscious that it was an act he ought not to do. If he was con- scious of this, he cannot be excused on the score of insanity, — he is amenable to the law." The same test of legal respon- sibility was deliberately pronounced by the judges of England, after great and anx- ious deliberation, upon questions put to them by the house of lords, after the trial of McNaughten, 10 Clark & Finnelly,. 200, one of the most striking' and im- LEADING CKIMINAL CASES. 97 Insanity — Delusion — Medical Testimony. portant cases concerning insanity on re- cord. " The first question was : ' What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect to one or more particular sub- jects or persons ; as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of in- sane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?' To which the judges answered, assuming that such inquiries are confined to those persons who labor under such partial delusions only, and are not in other re- spects insane, 'we are of opinion, that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public ben- efit, he is nevertheless punishable, accord- ing to the nature of the crime committed, if he knew at the time of committing such crime, that he was acting contrary to law, which expression we understand to mean the law of the land.' The second inquiry was : ' "What are the proper questions to be submitted to the jury, where a person alleged to be afflicted with insane delu- sion, respecting one or more particular subjects or persons, is charged with the commission of a crime, (murder, for ex- ample,) and insanity is set up as a de- fence ? ' And, thirdly : ' In what terms ought the questions to be left to the jury as to the prisoner's state of mind at the time when the act was committed ? ' To both of these interrogatories it was an- swered that the jury ought to be told in all cases ' that every man is to be pre- sumed to be sane, and to possess a suffi- cient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction ; and that, to establish a defence on the ground of insanity it must be clearly proved, that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not 9 to know the nature and quality of the act he was doing, or if he did know it, that he did not know that he was doing that which is wrong.' The mode of putting the latter part of the question to the jury on these occasions, has generally been, whether the accused at the time of doing the act knew the difference between right and wrong ; which mode, though rarely, if ever, lead- ing to any mistake with the jury, is not so accurate when put generally, and in the abstract, as when put with reference to the party's knowledge of right and wrong, in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to con- found the jury, by inducing them to be- lieve that an actual knowledge of the law of the land was essential in order to lead to a conviction ; whereas the law is admin- istered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if the act was at the same time contrary to the law of the land, he is punishable ; and the usual course, therefore, has been to' leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong ; and this course we think is correct, accompanied with such obser- vations and explanations as the circum- stances of each particular case may re- quire.'' The subject was much discussed in Freeman v. The People, 4 Denio, 29. The rule of McNaughten's case was there cited with approbation, especial care being taken to confine the inquiry to the per- son's capacity of distinguishing right from wrong as to the particular act charged ; for while a person might have a very just perception of the moral qualities of most actions, he might at the same time be as to some particular act absolutely insane, and consequently incapable as to that of judging accurately between right and wrong. And we see not why the converse may not be equally true, viz. : that a per- 98 LEADING CEIMTNAL CASES. Insanity — Delusion — Medical Testimony. son may be generally insane, and be inca- pable of distinguishing right from wrong in a majority of his actions, and yet retain clear perceptions of some of his duties and obligations, and realize that a certain specified violation thereof, should render him amenable to punishment. It was, therefore, denied in Freeman v. The People, that sanity, and a general ca- pacity to distinguish between right and wrong were convertible terms, and this we understand to be the rule of the modern English authorities, meaning by right and wrong as used in the foregoing cases, not right or wrong in a moral sense purely, but rather in a legal one. Lord Brougham, in the debate on McNaughten's case declared, that " Knowing right from wrong ; knowing he sinned against the law of God and nature ; knowing the act to be forbidden by the law of the country was vague and indefinite." The true test was this: "was he capable of distinguishing right from wrong ; that is, right according to the law ; wrong, an act condemned and punishable by the law ? " We may, therefore, conclude, that in- capacity of perceiving that the act was contrary to law, is in all cases sufficient evidence of insanity. But is that the only test ? Is the exist- ence of such capacity, equally a test of sanity ? Our leading case justifies us in claiming an additional test of insanity, viz. : delusion, or the fixed belief of the mind in the existence of things as reali- ties, which have no existence but in the brain of the madman. Hadfield's cflse, before Lord Kenyon, in 1800, is a strik- ing illustration. He had been a pri- vate soldier in a dragoon regiment, in the year 1793, received many severe wounds in battle, near Lisle, which had caused partial derangement of mind, and he had been dismissed from the army on account of insanity. Since his return to England he had been annually out of his mind, from the beginning of spring to the end of the dog days, and had been under confinement as a lunatic. When affected by his disorder, he imagined himself to hold intercourse with God ; sometimes called himself God, or Jesus Christ, and used other expressions of the most irre- ligious and blasphemous kind, and also committed acts of the greatest extrava- gance ; but at other times he appeared to be rational, and discovered no symptom of mental incapacity or disorder. On the 14th May, preceding the commission of the act in question, his mind was very much disordered, and he used many blas- phemous expressions. At one or two o'clock on the following morning he sud- denly jumped out of bed, and, alluding to his child, a boy of eight months old, of whom he was usually 'remarkably fond, said, he was about to dash his brains out against the bed-post, and that God had ordered him to do so ; and upon his wife screaming, and his friends coming in, he ran into a cupboard, and declared he would lie there, it should be his bed, and God had said so ; and when doing this, having overset some water, he said he had lost a great deal of blood. On the same and the following day he used many incoherent and blasphemous expressions. On the morn- ing of the 15th of May, he seemed worse, said that he had seen God in the night, that the coach was waiting, and that he had been to dine with the king. He spoke very highly of the king, the royal family, and particularly of the Duke of York. He then went to his master's workshop, whence he returned to dinner at two, but said that he stood in no need of meat, and could live without it. He asked for tea between three and four o'clock, and talked of being made a member of the society of Odd Fellows ; and after repeating his irre- ligious expressions, went out and repaired to the theatre. On the part of the crown it was proved that he had sat in his place in the theatre, nearly three quarters of an hour before the king entered ; that on the moment when the audience rose on his Majesty's entering his box, he got up above the rest, and presenting a pistol loaded with slugs, fired it at the king's person, and then let it drop ; that when he fired his situation appeared favorable for taking aim, for he was standing upon the second seat from the orchestra, in the pit ; and he took a deliberate aim, by looking down the barrel as a man usually does when LEADING CRIMINAL CASES. 99 Insanity — Delusion — Medical Testimony. taking aim. On his apprehension, amongst other expressions, he said that he knew perfectly well his life was forfeited ; that he was tired of life, and regretted nothing but the fate of a woman who was his wife, and would be his wife a few days longer, he supposed. These words he spoke calmly and without any apparent derange- ment ; and with equal calmness, repeated that he was tired of life, and said that his plan was to get rid of it by other means ; he did not intend any thing against the life of the king, he knew the attempt only would answer his purpose. The evidence for the defendant tended to show, and the memorable argument of the eloquent Erskine, was directed to con- vince the jury that the accused was labor- ing under a sincere and firm delusion that it was his duty to offer himself a sacrifice for his fellow-men, to do some act by which he should be visited with the extreme pen- alty of the law ; and the most ready way, as he conceived, to attain his object, was to attempt the life of his sovereign, and thus draw upon himself that death he thought it his duty to undergo. This de- lusion, Erskine claimed, if the cause of the act complained of, rendered him irre- sponsible. This was a direct, and acknowl- edged innovation upon the law of insanity, as then recognized by courts in England, and entirely inconsistent with the test of capability of distinguishing between right and wrong, already so often alluded to. For Hadfield did know right from wrong ; did know that the act he was about to do , was forbidden by the law ; did know the nature and character of the penalty at- tached to murder ; and more than this he was able to calculate, and did calculate the means necessary and proper to secure his end, and no sane man could have rea- soned better in this respect that he. He made deliberate preparations to do an act, at a time and place, and in a manner, which, whether successful or not, could not fail to draw, upon him the fatal conse- quence he so much desired, and which, un- der an overwhelming delusion, he thought it his highest duty to suffer. There was unquestionably a method in his madness, but he must have been a responsible being according to the rule of Lord Brougham, before stated; yet the whole facts and searching analysis of Eskine probably con- vinced all who heard it, that it would be a violation of law and of humanity to hold the accused accountable for the conse- quence of his delusion. And Lord Kenyon, himself, after listening to the new position of the prisoner's counsel, concurred in its wisdom, justice, and truth, and advised the withdrawal of the prosecution. Martin's case, for firing the cathedral at York, is familiar to our readers. The insanity there relied upon was, as in Had- Jield's case, delusion. He admitted he knew the act to be wrong; i. e. contrary to the law of the land ; but he was labor- ing under the delusion that he was com- manded by a voice from heaven' to burn the church on account of the sins of the clergy. He knew the nature of the act, and that it was punishable by law, since, when accused of having stolen the golden fringe, and other ornaments of the choir, he declared he did not wish to steal any thing, but kept them to furnish proof that, he alone had committed the act, in obedi- ence to his heavenly commission, so that no other person might bear the punish- ment. He also was acquitted ; but if knowledge of right and wrong, or what is) allowed and what is forbidden by law, be the sole test of insanity, he was clearly re-, sponsible. Another instance occurred in 1844, at the central criminal court, Regina v. Ross Touchett, which illustrates the presence of insanity at the same time with the most perfect consciousness, that the act contemplated was forbidden by the law. The prisoner entered a shoot- ing gallery, took a pistol and deliberately fired at the proprietor of the gallery, while his back was turned, and inflicted a wound which resulted in death. After firing his pistol, he said he did it on purpose, for he wished to be hanged ! that he had no knowledge of the person he shot, but that he wished to be hung, and had brooded over suicide for some years. He referred to a case of a man who had just then been executed for shooting a man at Brighton, and said he wished to do something of the same kind, as he wished to be hung. Yet 100 LEADING CKIMENAL CASES. Insanity — Delusion — Medical Testimony. he was acquitted on the score of insanity. If knowing that his act was forbidden by the law constituted him sane, he was un- justly acquitted. So in the next year, the case of Regina v. Brixey, at the central criminal court, June, 1845. The prisoner was a quiet, inoffensive girl, a maid servant in a re- spectable family. She labored under a disordered menstruation, and had shown some unusual violence of temper a short time before. One day she procured a knife from the kitchen on some false pre- tence, and while the nurse was out of the room, cut the throat of her master's infant child. She then went down stairs and told her master what she had done, was perfectly conscious of the crime she had committed, and expressed much anxiety to know whether she would be hanged, or only transported. She was acquitted as insane, and as having done the deed under some delusion or irresistible impulse, prob- ably caused by her obstructed menstru- ation. Delusion, too, was the phase of in- sanity relied upon in Oxforffs case, who shot at the queen ; believing it necessary, in order to accomplish some great public benefit. McNaughten's case, in 1843, before re- ferred to, furnishes another illustration of the same phase of insanity, namely, delu- sion or hallucination. The defendant was a Scotchman, and shot Mr. Drummond, the private secretary of Sir Robert Peel, in the streets of London, evidently mistaking him for Sir Robert himself. The act was done under circumstances showing great deliberation, coolness, and possession of intellectual powers. The defence was, that the prisoner was laboring under an insane delusion that he was the victim of some indefinite, mysterious, and incessant persecution ; that he was everywhere fol- lowed by enemies, blasting his fame, dis- turbing his peace, accusing him of crimes, and filling him with intolerable inquietude. And believing Sir Robert Peel to be one of his persecutors, he resolved to sacrifice him. The fact of the existence of the de- lusion was supported by strong medical testimony ; so strong, indeed, that Tindal, chief justice, having inquired of Sir Wil- liam Follett, conducting the prosecution, if he could control the testimony for the defence, thought it to be his duty to stop the case, and it was submitted without argument. The prisoner was acquitted, which gave rise to much discussion both in and out of the house of lords, and led to the authoritative announcement of the law by all the judges before given. Whether the acquittal of McNaughten was consis- tent with the principles then laid down, especially in the answer to the first ques- tion, we leave our readers to judge ; but that he was in fact insane, became after- wards clear to all. Delusion, illusion, or hallucination, where there is no frenzy or raving madness, has also been declared to be a true legal test of insanity in the ecclesiastical courts. Dew v. Clark, 3 Addams, 79 ; Frere v. Peacocke, 1 Robertson, 442, a very excel- lent case on this subject. Our leading case, therefore, is well sustained, both on principle and authority. Indeed it is di- rectly supported by the fourth answer of the judges in McNaugliten's case, which, with the question, were as follows : — " If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby ex- cused ? " To which the judges said : " The answer must depend upon the nature of the delusion ; but, making the same as- sumption as we did before, namely, that he labors under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the in- fluence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, ashe supposes, in self-defence, he would be ex- empt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such sup- posed injury, he would be liable to punish- ment." This subject was ably examined by Nis- bit, J., in Roberts v. The State, 3 Georgia, 310, where the general rule that if a person LEADING CRIMINAL CASES. Insanity — Delusion — Medical Testimony. has reason sufficient to distinguish between right and wrong in relation to the partic- ular act to be committed, he is criminally responsible, was admitted to have this ex- ception, that although the prisoner had such reason, yet, if the act was done in consequence of some delusion which over- powered his will, and there was no crim- inal intent, he is not punishable, and the law of Commonwealth v. Rogers and Had- fielaVs case was expressly approved. The rule in Massachusetts was also approved in New York, in 1848, in The People v. Pine, 2 Barbour, 571, where Barculo, J., says : " There are cases in which the in- sanity consists in a delusion by which the prisoner has a real and firm belief in the existence of a fact wholly imaginary and unfounded. In regard to this, the English courts hold that it is no defence for a crime that, the prisoner supposes he is redressing an injury or grievance. The Massachu- setts rule is, that if the imaginary facts would justify the act, if true, then he is excusable ; as when the prisoner supposed that the person was about to kill him, and he slays the other in self-defence. There must be an immediate apprehension of danger." Numerous instances are on record, which sufficiently prove that persons really insane, may, and do commit acts, of the criminality of which they were at the time perfectly conscious. Indeed those who have had the care of lunatics tell us that they have heard undoubted lunatics boast that they could not be hung for the crime of murder, and that their insanity ex- empted them from punfshment for viola- tion of the law. When one really insane murders another in order to receive the punishment of death at the hands of the law, as in HadfieloVs case, or commits a twofold murder, with the express declara- tion that he may as well suffer for both as for one, as in Greensmith's case, Midland Circuit, July, 1837, it is apparent that a capacity of distinguishing between what is allowed and what is forbidden by the law is not always conclusive evidence. of sanity. Either all those persons who have been acquitted on the ground of insanity, when there was evidence of such knowledge, 9* have been illegally acquitted, has been sacrificed, or else the 1 sanity so often laid down is an imperfect test. Delusion, therefore, seems to be an equally sound and safe test of insanity, in many cases, as incapacity from knowing right from wrong. But this delusion ought to be so great in its extent and degree as to blind the person to his moral duty, in fact controlling his will, and rendering the commission of the act, in his view, a duty of overruling necessity. The act charged against him must also have been the direct result of his delusion ; and to free him from responsibility, the delusion must have been directly connected with the act, driv- ing him to its commission. An excellent illustration of this species of insanity is that perverted sense of religious obli- gation which causes men oftentimes to sacrifice their wives and children. The two tests already named may, and often do, coexist in the same mind. In Com- monwealth v. Rogers,* the prisoner la- bored under a delusion, but which, at the same time, clouded his capacity of distin- guishing right from wrong, and led him to believe that the act he contemplated was not wrong, either morally or legally, as in- deed it would not have been, had the de- lusion been well founded in fact ? But will these two tests suffice ? Are there no crimes committed which may be excused, although not done under the in- fluenceof an insane delusion as to existing facts, or with an incapacity of knowing right from wrong ? These two tests essen- tially apply to the intellect. But is man composed entirely of intellect ? Has he not emotions, passions, propensities, and, above all, a personal will, which may be- come deranged ? Are there not other faculties and powers essential to an ac- countable being, besides those of mere in- tellect and sense ? And are not these the distinguishing characteristics of man above the lower orders of animals ? — Is not the agency and cooperation of the will, that self-originating and self-controlling power, belonging to man alone, necessary to give character to any act, and render it censur- able or praiseworthy ? If that will, there- fore, be truly in subjection to a higher or 102 LEADING CRIMINAL CASES. Insanity — Delusion — Medical Testimony. a lower power than itself; if it be not free, uncontrolled, and without restraint, is its possessor chargeable with guilt for its operations ? Is not, therefore, the power of choosing right from wrong as essential to legal responsibility, as the mere capacity of distinguishing between the two ? If a person's power of controlling his thoughts, words, and actions, is really de- stroyed or suspended, from the effect of a disordered or diseased mind, why should he be responsible for his acts, although his intellect may not be so far impaired that it cannot discern his conduct to be contrary to the law of God and man ? If in ethics free will is essential to moral accountability, why should not the power of control over one's actions be necessary to render man amenable to human punishment ? Any act, to be criminal, should be voluntary. Actus non facit reum, nisi mens sit rea. Why is the wife who commits a misde- meanor in the presence and by command of her husband, erttirely excused in the eye of the law ? — Because her will is > overruled and controlled by his, and he is, in law, the only guilty party. Why is the infant of tender years irresponsible for his acts ? Because his mental powers are so weak and defective, that he has no criminal will or intent. Why is homicide, caused by pure accident, no crime ? Be- cause the voluntary will, the essence of all criminality, is wanting. For this reason it is, that if one commit a felony by means of an innocent agent, the principal, and not the agent, is alone criminally respon- sible. Regina v. Bleasdale, 2 Carrington & Kirwan, 765. It must be confessed, however, that this species of insanity, moral insanity, as it has been called, or lesion of the will, as medical men term it, {lesion de volanti of the continental writers,) coexisting with intellectual sanity, has not received the sanction of modern English judges. In- deed, it has been emphatically repudi- ated, as our readers have already seen. And see Slate v. Spencer, 1 Zabriskie, 207. And if by moral insanity is to be understood only a perversion or disordered state of the affections or moral powers of the mind, it cannot be too soon discarded as affording any shield from punishment for crime. It would be as just and as safe to make moral depravity a protection for crime, as to extend the defence of insanity to any such untenable and pernicious grounds. But may there not be a moral or homi- cidal insanity, consisting of an irresistible inclination to kill, or commit some other offence, some unseen pressure on the mind, drawing it to consequences which it sees but cannot avoid, and placing it under a coercion, which, while its results are clearly perceived, it is incapable of resisting V Such was the opinion and language of Chief Jus- tice Gibson, of Pennsylvania, in the case of Commonwealth v. Mosler, 4 Barr, 267. It is not alone the sane who may say : I see the right and yet the wrong pursue. On what other ground was the servant maid, in Regina v. Brixey, ante, entitled to an acquittal ? She had capacity to know, and did know, she was doing wrong. She knew the nature of the act she was doing, and its penalty. She was even curious to know which of the alternative penalties was to be visited upon her head. Tried by the test of knowledge alone, she was re- sponsible. Neither would the second test, before spoken of, exempt her; for there was no evidence she was laboring under any delusion of fact, which, if true, would have been a justification, as in Common- wealth v. Rogers. Unless, therefore, some other species of insanity, or manifestation of that disease, is recognized, what shall be done with her case, and other similar cases? On what other ground is the parent, who, without cause, suddenly murders an inno- cent and beloved child, sometimes held excusable ? Accountability for crime pre- supposes a criminal intent, and that re- quires a will subject to control. For this reason, a homicide, committed under the influence of uncontrollable impulse, has been declared to be no murder. But this must be confessed to be a most dangerous doctrine, and one to be recognized only in the clearest; cases. To establish such a justification, said Chief Justice Gibson, in 4 Barr, 267, in any particular ease, it is necessary to show, by clear proofs, its con- temporaneous existence evinced by present LEADING CRIMINAL CASES. 103 Insanity — Delusion — Medical Testimony. circumstances, or the existence of an habit- ual tendency, developed in previous cases, becoming in itself a second nature. How difficult must it be satisfactorily to determine whether an act charged as crim- inal was the result of a truly irresistible impulse, overruling a diseased and dis- ordered mind, or was only the outbreak of ungoverned, and therefore ungovernable passions. Yet the one is a sufficient excuse, and the other no palliation for deeds of violence and wrong. While, on the one hand, there is too much foundation for the remark of Mr. Baron Gurney, on trial of the case of Rex v. Reynolds, that the " defence of insanity, had lately grown to a fearful height, and the security of the public requires that it should be closely watched," may not a por- tion of the distrust of eminent judges in that species of insanity exhibiting itself in an irresistible impulse, be founded rather in the extreme difficulty of satisfactorily determining whether, in any given case, the impulse under which the act was done, was or was not irresistible, than in the plea itself when entirely proved. That it is almost beyond the reach of man's wisdom to know whether a prisoner was or was not able to control and subdue *the power which was urging him on to the commission of crime, is unquestionably true ; never- theless, the difficulty of determining any fact sought for, in a judicial investigation, ought not to affect the legal consequence of that fact, when once established. Be- sides, will not the same objection apply, and with equal force, to the other test of insanity, viz., capacity of knowing right from wrong? How much easier .is it for human imperfection to determine that a prisoner had not sufficient capacity to know right from wrong, than to conclude he had not sufficient power of will to con- trol his impulses ? The difficulty is not in the test ; it is inherent in the nature of the subject. What finite mind can fathom the depths, or fully comprehend the work- ings of a mind laboring under this most mysterious and subtle disease ? " It is hid from the eyes of all living, and kept close from the fowls of the air." Although the doctrine of irresistible im- pulse, or moral insanity, is well established among medical writers, and gentlemen ex- perienced in the care of lunatics, it has not yet attained a fixed and decisive char- acter in judicial trials. It seems to have been recognized by Chief Justice Shaw, in our leading case, when he says : " Mo- nomania may operate as an excuse for a criminal act, when it indicates to an ex- perienced person, that the mind is in a diseased state ; that the known tendency of that diseased state is to break out into sudden paroxysms of violence, venting it- self in homicide or other violent acts to- wards friend or foe indiscriminately ; so that, although there were no previous in- dications of violence, yet the subsequent act, connecting itself with the previous symptoms jtnd indications, will enable an experienced person to say that the out- break was of such a character that, for the time being, it must have overborne mem- ory and reason ; that the act was the result of the disease, and not of a mind capable of choosing ; in short, that it was the re- sult of uncontrollable impulse, and not of a person acted upon by motives, and gov- erned by the will." Judge Edmonds, on the trial of Kleim, for murder,- in New York city, in 1844, said to the jury : — "If some controlling disease was, in truth, the acting power within him, which he could not resist, or if he had not suffici- ent use of his reason to control the passions which prompted him, he is not responsible. But it must be an absolute dispossession of the free and natural agency of the mind. It must be borne in mind that the moral as well as intellectual faculties may be so dis- ordered by the disease, as to deprive the mind of its controlling and directing power. In order to establish crime, a man must have memory and intelligence to know that the act he is about to commit is wrong; to remember and understand, that if he commit the act, he will be subject to pun- ishment; and reason and will to enable him to compare and choose between the supposed advantage or gratification to be obtained by the criminal act, and the im- munity from punishment which he will secure by abstaining from it. If, on the 104 LEADING CRIMINAL CASES. Insanity — Delusion — Medical Testimony. other hand, he have not intelligence enough to have a criminal intent and pur- pose, and if his moral or intellectual powers are either so deficient that he has not sufficient will, conscience, or controlling mental power; or if, through the over- whelming violence of mental disease, his intellectual power is for the time obliter- ated, he is not a responsible moral agent." 2 American Journal of Insanity, January, 1846, p. 261. Substantially the same principles were recognized by Whiting, J., on the trial of Freeman, 4 Denio, 29. Trial of Freeman, pamphlet. It may be that there is not yet a concurrence by the English judges in this species of in- sanity last alluded to, but that may be in part owing to that extreme regard for life and property ever indicated in the decisions and opinions of the English bench. The conclusion to which we come on this branch of our subject is, therefore, that it is impossible to give a complete definition of insanity, or one that is uni- versally applicable, or to say what it is and what it is not ; it may be described and explained, but not defined. We think, however, that the state of the au- thorities will justify these three proposi- tions, as already established : — First. A person is not criminally re- sponsible, if, at the time he committed the act, he had not sufficient capacity to know whether his act was right or wrong, or, more accurately, to know that it was contrary to the law of the land. Thus far, all the authorities agree. Second. He is not responsible, if the act was done under a fixed bona fide de- lusion that certain facts existed, which were wholly imaginary, but which, if true, would have been a good defence. Fourth answer of the judges in McNaughten's case, ante. Commonwealth, v. Rogers ; Rex v. Offord, 5 Carrington & Payne, 168; People v. Pine, 2 Barbour, 571 ; Hod- field's case ; Martin's case. Third. He is not responsible if the act was done under some irresistible impulse, the result of a diseased and disordered mind, which overpowered his will, taking away his power of control, and there was no criminal intent. Roberts v. The State, 3 Georgia, 310; Regina v. Touchett; Regina v. Brixey ; Regina v. McNaughten ; Regina v. Oxford; Kleim's case. 2nd. 'Of the evidence admissible on the issue of insanity, and especially the opin- ions of witnesses therein. It seems to be generally conceded that a higher degree of insanity must be shown in criminal cases, in order to absolve a party from guilt, than in civil actions, to discharge him from the obligations of his contracts. 2 Greenleaf, Ev. § 372. But it is conceived that in both cases the same evidence is admissible, and that what may be received in one may be received in the other, and what must be rejected in one, ought to be rejected in the other. See Rex v. Watson, 2 Starkie, 155; Regina v. Murphy, 8 Carrington & Payne, 297. And although the precise question always is, whether the accused was insane at the very time he committed the act, yet evi- dence of acts, declarations and conduct both before and after that time, showing an insane state of mind, are admissible as bearing upon the exact point in contro- versy. Peaslee v. Robbins, 3 Metc.alf, 164 ; Norwood v. Marrow, 4 Devereux & Battle, 442 ; Vance v. Commonwealth, 2 Virginia Cases, 132 ; Grant v. Thompson, 4 Connecticut, 203 ; Dickinson v. Barber, 9 Massachusetts, 225 ; United States v. Sharp, 1 Peters, C. C. 118; Bryant v. Jackson, 6 Humphreys, 199; McAllister v. The State, 17 Alabama, 434; McLean v. The State, 16 Alabama, 672; Kinne v. Kinne, 9 Connecticut, 102 ; Lake v. The People, 1 Parker, C. C. 495. And where general insanity is proved to have existed prior to the commission of the crime, its continuance up to that time will be pre- sumed, and the prosecution must then show the occurrence of a lucid interval. CartwrigM v. Cartwright, 1 Phillimore, 100 ; Jackson v. Van Dusen, 5 Johnson, 144 ; Armstrong v. Timmons, 3 Harring- ton, 842 ; Jackson v. King, 4 Cowen, 207 ; The State v. Spencer, 1 Zabriskie, 196 ; Hoge v. Fisher, 1 Peters, C. C. 163. So of partial insanity, or insanity only on par- ticular subjects, — Thornton v. Applelon, 29 Maine, 298 — unless such prior in- LEADING CRIMINAL CASES. 105 Insanity — Delusion — Medical Testimony. sanity was caused by some violent disease, in which case the presumption of continu- ance does not apply ; for cessante ratione, cessat ipsa lex. Hix v. Whittemore, 4 Met- calf, 545. For to authorize the presump- tion of continuance, the insanity proved ought to be of an habitual and not merely an occasional character. Lewis v. Baird, 3 McLean, 56. The rules of evidence, therefore, being the same in civil and criminal cases, evidence of hereditary in- sanity is admissible in both cases. Re- gina v. Tucket, 1 Cox, C. C. 103 ; Regina v. Oxford, 9 Carrington & Payne, 525. But medical books containing the opin- ions of medical gentlemen of even the highest authority are not, on the recent authorities, admissible in either case. Commonwealth v. Wilson, 1 Gray, 337; Collier v. Simpson, 5 Carrington & Payne, 74 ; Cocks v. Pvrday, 2 Carrington & Kirwan, 270 ; Carter v. The State, 2 Car- ter, 617; Melvin v. Easley, 1 Jones, 386. And the spirit of the rule forbids the reading of such books to the jury. Regina v. Cranch, 1 Cox, C. C. 94. But that may be rather a matter of discretion with the court. Luning v. The State, 1 Chandler, 178. And this brings us to the main question on this branch of our subject, namely : When are the opinions of physicians and others competent evidence on the issue of insanity ? That professional gentlemen, who are acquainted with the disease of insanity, and who have personally examined the party to whom insanity is attributed, may give their opinion upon the direct ques- tion whether he was or was not insane, is beyond controversy. Such evidence comes strictly within a familiar principle of law, permitting the opinions of ex- perts to go directly to the jury. But our leading case goes much further than this, and permits persons conversant with in- sanity, and who have heard the testimony adduced at the trial, but who have never had any personal knowledge of the party, sto give their opinion upon the sanity or uisanity of the prisoner, supposing the mots detailed at the trial to be true. The proper form of such questions is, if the symptoms and indications testified to are true, and the jury are satisfied of the truth of them, whether, in their opinion, the party was insane, and what was the nature and character of that insanity ; what state of mind did they indicate ; but they cannot give their opinions di- rectly and positively upon the ease, but only upon an admitted or hypothetical state of facts; they cannot draw infer- ences of fact from the evidence ; and un- less the jury find as true the hypothetical facts upon which the opinions of such wit- nesses can alone be based, then their opinion is not applicable to the case, and ought not to influence a jury. See Uni- ted States v. McGlue, 1 Curtis, C. C. R. 9. And the state of facts submitted to the witness must be all the facts relied upon to establish the plea of insanity. Lake v. The People, 1 Parker, C. C. 495. The grounds of the admissibility of such evi- dence are exceedingly well stated in the lucid charge of Chief Justice Shaw, in our leading case, and the propriety of the rule has been frequently recognized and acted upon in other American courts. - McAllis- ter v. The State, 17 Alabama, 434 ; Clark v. The State, 12 Ohio, 483 ; Potts v. House, 6 Georgia, 824. And such a question has frequently been permitted in England, sometimes with and sometimes without objection. See Rex v. Searle, 1 Moody & Eobinson, 75, Parke, J. ; Rex v. Offord, 5 Carrington & Payne, 168; McNaughten's case, 10 Clark & Finnelly, 201. And Maule, J., in answer to the questions by the house of lords, acqui- esced in the propriety of such questions, and considered the position established. But all the other judges declared a con- trary opinion. The question put to them was : " Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the com- mission of the alleged crime, or his opin- ion whether the prisoner was conscious, at the time of doing the act, that he was acting contrary to law, or whether he was 106 LEADING CRIMINAL CASES. Insanity — Delusion — Medical Testimony. laboring under any and what delusion at the time." And their reply was in these words : " We think the medical man, under the circumstances supposed, can- not, in strictness, be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and questions are not mere questions upon a matter of science, in which case such evidence is admissible. But, where the facts are ad- mitted, or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the ques- tions to be put in that general form, though the same cannot be insisted on as a matter of right." If, therefore, the question could not be put as a matter of right, it could not be put at all, if objected to by the opposite party, which is equivalent to disallowing it altogether. And Lord Brougham, in the debate on this case in the house of lords, declared that " If the house would look at what was laid down by Lord Hardwicke, then sitting as Lord High Steward, at the trial of Earl Fer- rers, in 1760, when that very kind of evidence was tendered, where those very questions were put to the witnesses, and when Lord Camden, then Attorney- Gen- eral Pratt, objected to that evidence and those questions, they would find that Lord Hardwicke said that the question must not be put — that it was not legal evi- dence ; and his lordship said, you must not ask a witness whether the facts sworn to by other witnesses preceding them amount to a proof of insanity ; you shall state the facts to the witnesses — men of skill in their profession — and you shall ask if such a fact is an indication of in- sanity or not — you shall ask them, upon their experience, what is an indication of insanity — you shall draw from them what amount of symptoms constitute insanity — but you shall not remove the witness from the witness-box into the jury-box, be he a medical man of the most unquestionable skill, the most practised in that most use- ful but most painful walk of his vocation ; be he the most competent possible to give us the result of his practical observation and experience, still, you shall not trans- fer that witness from the witness-box to the jury-box, but you shall ask him what symptoms his experience indicates to him as a test of insanity or sanity, and leave it to the judge, or rather to the jury, to say whether the man be guilty or not guilty, he being sane or insane." This is in direct conflict with the rule as aiopted in Commonwealth v. Rogers, but it is the modern English practice. See Rex v. Wright, Russell & Ryan, C. C. 451 ; Regina v. Frances, 4 Cox, C. C. 57. In this case, the question was put by the prosecution in these words, to a physician who had been in court "during the whole case : " Whether, from all the evidence he had heard, both for the prosecution and the defence, he was of opinion that the prisoner, at the time he did the act in question, was of unsound mind ? " Al- derson, B., immediately interposed, say- ing : " I cannot allow such a question to be put." McNaughten's case, and the opinion as given above, was then cited. Cresswell, J., then added : " That case decides that the question cannot be put as a matter of right ; " and Alderson said : " And I do not think that it ought to be put at all. I am quite sure that decision was wrong. The proper mode is to ask what are the symptoms of insanity, or to take particular facts, and assuming them . to be true, to ask whether they indicate insanity on the part of the prisoner. To take the course suggested, is really to substitute the witness for the jury, and allow him to decide upon the whole case. The jury have the facts before them, and they alone must interpret them by the general opinions of scientific men." Cresswell, J., concurred. The following year the same question arose before Lord Campbell, on an issue to try the mental competency of a testator to make a will. The question was in a similar form as that in Regina v. Frances. Lord Campbell said : " I have not the slightest hesitation in overruling it. The witness may give general scientific evidence on the causes and symptoms of insanity, but he must not express an opinion as to the result of the LEADING CRIMINAL CASES. 107 Insanity — Delusion — Medical Testimony. evidence he had heard with reference to the sanity or insanity of the testator " — his lordship saying peremptorily that he ■would not allow a physician to be substi- tuted for a jury. Doe d. Bainbrigge v. Bainbrigge, 4 Cox, C. C. 454. In the same year, on the trial of Robert Pate, before Baron Alderson, for an assault upon the Queen, a medical gentleman was about to testify : " From all I have heard to-day, and from my personal observation, I am satisfied the prisoner is of unsound mind." The presiding judge, with some indignation, interposed : " Be so good, Dr. as not to take upon yourself the functions of both the judge and jury. If you can give us the results of your scientific knowledge in this point, we shall be glad to hear you ; but while I am sitting on this bench, I will not permit any medical witness to usurp the func- tions of both the judge and the jury." But how usurp the functions of the jury? True it is, the jury are to give their opinion upon the direct question, " whether the prisoner was or was not in- sane." And true it is that such is the iden- tical question sought to be put, in these cases, to medical gentlemen. But how is that trenching upon the rights and powers of the jury ? In every investigation, where matters of science, trade, etc., are involved, is not the same course pursued ? For instance, an experienced physician and surgeon sits at the trial of a person for murder, by poison, or perhaps by vio- lence ; he hears the witnesses describe the wound, its locality, length, depth, and breadth, the symptoms of the sufferer, and the gradual wane of life, and the approach of death, may he not then be asked, whether, in his opinion, as a gentleman conversant with similar cases, such death was caused by the wound inflicted, or the poison administered ? And yet that is the very question which the jury must de- ■ termine for themselves, in forming their general verdict of guilty or not guilty. Shall it be said that, for that reason, they shall not have the benefit of the opinion of persons more competent ? Is that the English practice in other cases where some other issue than insanity is raised ? Take the frequent case of actions involv- ing the issue of careful or negligent man- agement of a vessel. The question for the jury in such cases is, was the master guilty of negligence, that is, what is their opinion about it ? and yet it is every day's practice at such trials in England, to call nautical men, who have heard the evi- dence, but who knew nothing of the facts of the particular case, and ask them, sup- posing the facts to be true, as testified to, was the master guilty of negligence ? See an instance in Malton v. JVesbit, 1 Carrington & Payne, 70, before Lord Tenterden. Is that usurping the prov- ince of the jury ? It seems to us that such is the very best evidence that could be laid before a jury. The object of such a question is not to de- cide the fact itself, but to give the jury additional means for deciding it for them- selves, viz. : the opinion of disinterested persons, who on account of their profes- sional knowledge, are more competent to judge than persons in the ordinary walks of life. See also Fenwick v. Bell, 1 Car- rington & Kirwan, 312, which was for col- lision of two vessels, whereby the plaintiff's was injured. A witness, who had heard the trial, was asked whether, supposing the facts as proved by the plaintiff to be true, the collision could have been avoided by proper care on the part of the de- fendants ? Now that was the precise question the jury were to try, and in that case the very objection was taken, but it was overruled and the question put. Lord Ellenborough has also sanctioned the same kind of evidence in Beckwith v. Sydeboiham, 1 Campbell, 116, where the issue was whether a vessel insured by the defendant was seaworthy. The defendant called eminent surveyors of ships, who had never seen the vessel lost, to prove that on the facts testified by others, she could not have been seaworthy at the com- mencement of the voyage. The same ob- jection was raised again, that this was an inference which the jury, and the jury alone, were to draw. But Lord Ellen- borough held that this was like examining a physician or surgeon, to say whether, upon such and such symptoms, a person 108 LEADING CRIMINAL CASES. Insanity — Delusion — Medical Testimony. whose life was insured, could, at the time of insurance, have been in a good state of health, — "where there was a matter of skill or science to be decided, the jury- might be assisted by the opinion of those peculiarly acquainted with it from their professions or pursuits." See also Thornton v. Royal Exchange Assurance Co. Peake, 25. We have confined ourselves, in the cita- tion of these analogies, to English decis- ions, because it is only in that country that the mode of putting the question practiced in Commonwealth v. Rogers, is disapproved. The distinction between asking a physician whether, in his opinion, a certain individual was or was not in- sane, and asking him whether the acts which that person committed, in his opin- ion, indicate sanity or insanity, is cer- tainly perceptible, but, as we think, it is a distinction without a difference. The lat- ter is a general question of science and experience, as to the usual and ordinary evidence or criteria of insanity, and the former is but an application of the same general principle of science and experi- ence, to the manifestations of a particular case. Possibly it may not be competent to ask a witness his opinion whether the act charged was caused by the insanity of the prisoner, since that would be exclud- ing all other agencies, (Wright's case, 1 Russell & Ryan, C. C. 451,) but that is a very different question from asking his opinion of the person's sanity or insanity. Sometimes physicians have been asked both what are the symptons of insanity, and their opinion upon a hypothetical statement of facts. Lake v. The People, 1 Parker, C. C. 495. The rule of our leading case, therefore, seems best sup- ported by principle and analogy. The opinions, therefore, of physicians being competent testimony, and they be- ing permitted to. give their opinion upon the direct question, whether the accused was, or was not insane, can they also be asked whether, in their opinion, the pris- oner was capable of distinguishing be- tween right and wrong ? Such a question was disallowed and disapproved by Baron Rolfe, in Regina v. Laylon, 4 Cox, C. C 155, he saying it was a question which no man could be prepared to answer. On the other hand, the question was put and allowed in America, on cross-examination, to a physician who had testified in chief that he believed the party was insane. See Clark v. The State, 12 Ohio, 483. Physicians, however, are not permitted to give their mere opinion of a person's sanity ; they must also give the facts and circumstances on which their opinion is founded, otherwise the opinion will be entitled to very little weight. Clark v. The Slate, 12 Ohio, 483 ; Hathome v. King, 8 Massachusetts, 371 ; and has some- times been excluded altogether. Dickin- son v. Barber, 9 Massachusetts, 225. Opinions of witnesses not professional. That witnesses, not professional, cannot give their opinion from facts disclosed at the trial, and cannot give their opinion at all upon the question of insanity, uncon- nected with facts and circumstances upon which such opinion is founded, is entirely clear. It may be that witnesses to a will form an exception to this rule, and it is not unusual, upon an issue to try the sanity of a testator, to ask such persons the ab- stract question alone, whether, in their opinion the testator was, at the time of execution of the will, of sound mind. But this exception does not impair the rule itself; which is sustained by reason and authority. Gibson v. Gibson, 9 Yerger, 329 ; Potts v. House, 6 Georgia, 325 ; Dicken v. Johnson, 7 Georgia, 484 ; The State v. Brinyea, 5 Alabama, 241 ; Doe d. Sutton v. Reagan, 5 Blackford, 217; McCurry v. Hooper,_ 12 Alabama, 823. But on the broader question, whether wit- nesses, not professional, but who have, for a long time, personally known the in- dividual charged with insanity, and have had opportunities of observing him, his habits, manners, and conduct, can give their opinion of his insanity, there is more room for doubt and difference of opinion. This evidence was admitted, after, much deliberation, in Clary v. Clary, 2 Iredell, 78, on an issue to try the sanity of a tes- tator, and the reasons for its admission were ably stated by Gaston, J. " In the first place," said he, " it seems to us that LEADING CRIMINAL CASES. 109 i Insanity — Delusion — Medical Testimony. the restriction of the evidence to a simple narration of facts, having or supposed to have a.bearing on the question of capacity, would, if practicable, shut out the ordinary means of obtaining truth ; and, if freed from this objection, cannot in practice be effectually enforced. The sanity or insan- ity of an individual may be a matter noto- rious and without doubt in a neighbor- hood, and yet few, if any, of the neighbors may be able to lay before the jury distinct facts, that would enable them to pronounce a decision thereon with reasonable assur- ance of its truth. If the witness may be permitted to state that he has known the individual for many years ; has repeatedly conversed with him, and heard others con- verse with him ; that the witness had no- ticed that in these conversations he was incoherent and silly ; that in his habits he was occasionally highly pleased and greatly vexed without a cause ; and that in his conduct he was wild, irrational, extrava- gant and crazy ; what would this be but to declare the judgment or opinion of the witness of what is incoherent or foolish in conversation; what reasonable cause of pleasure or resentment; and what the indicia of sound or disordered intellect? If he may not so testify, but must give the supposed silly or incoherent language, state the degrees and all the accompanying circumstances of highly excited emotion, and specifically set forth the freaks or acts regarded as irrational, and this without the - least intimation of any opinion, which he has formed of their character, where are such witnesses to be found ? Can it be supposed, that those not having a special interest in the subject shall have so charged their memories with those matters, as disr tinct, independent facts, as to be able to present them in their entirety and sim- plicity to the jury ? Or if such a witness be found, can he conceal from the jury the impression which has been made upon his own mind ; and when this is collected, can ithe doubted but that his judgment has been influenced by many, very many, cir- cumstances, which he has not communi- cated, which he cannot communicate, and of which he is himself not aware ? " We also think that there is an analogy 10 in the investigation of questions of this kind and in the investigation of other ques- tions, wherein positive and direct evidence is unattainable, and in which the rule of evidence is well established. Of this kind are questions of personal identity and handwriting. Mere opinion as such is admissible. But where it is shown that the witness has had an opportunity of observing the character of the person or the handwriting, which is sought to be identified, then his judgment or belief, framed upon such observation, is evidence for' the consideration of the jury; and it is for them to give to this evidence that weight, which the intelligence of the wit- ness, his means of observation, and all the other circumstances attending his testi- mony, may in their judgment deserve. And why is this, but because it is impos- sible for the witness to specify and detail to the jury all the minute circumstances by which his own judgment was deter- mined, so as to enable them by inference from these to form their judgment thereon. And so it is in regard to questions respect- ing the temper, in which words have been spoken or acts done. Were they said or done kindly or rudely, in good humor- or in anger, in jest or in earnest? What answer can be given to these inquiries, if the observer is not permitted to state his impression or belief? Must a, facsimile be attempted, so as to bring before the jury the very tone, look, gestures, and manner, and let them collect thereupon the disposition of the speaker or agent ? " In the ecclesiastical courts, where ques- tions of sanity or insanity in eases of wills are of frequent occurrence, the practice is to interpose allegations, and admit these allegations to proof, that the general ap- pearance, manners, conduct, and deport- ment of the testator denoted unsound in- tellect — that he was treated and regarded by his friends and acquaintances as one not in his right senses — and on the other hand to receive pleas, and of consequence proofs, that he was regarded by his friends and acquaintances as sane — that he was engaged in acts of business, which he con- ducted without suspicion' of unsoundness — and that his general deportment was ra- 110 LEADING CEIMINAL CASES. Insanity — Delusion — Medical Testimony. » tional and proper. See Wheeler and Bats- ford v. Alderson, 3 Haggard, 574. In this case it was stated by Sir John Nicholl, in pronouncing his judgment, — " there is a cloud of witnesses who gave unhesi- tating opinions that the deceased was mad." He declared, indeed, upon a con- sideration of all the circumstances of the case, " their opinions are of little weight ; " but he did not reject them as inadmissible, nor remark upon them as contrary to the course of the court. See also the testi- mony received in the case of Eagleton and Coventry v. Kingsion, 8 Vesey, 449. " It is a well known exception to the general rule requiring witnesses to testify facts and not opinions, that in matters in- volving questions of science, art, trade, or the like, persons of skill may speak not only to facts, but give their opinions in evi- dence. It is insisted that by the terms of this exception, persons not claiming to possess peculiar skill, and all persons up- on matters not requiring peculiar skill, are excluded from giving opinions. Cer- tainly the testimony rejected in this case cannot claim to be admitted under this exception ; and, as we understand the ex- ception, it does exclude mere opinion in all cases other than those which are em- braced within it. Professional men are allowed to testify to the principles and rules of the science, art, or employment in which they are especially skilled, as general practical truths, or facts ascer- tained by long study and experience ; and also may pronounce their opinion as to the application of these general facts to the special circumstances of the matter under investigation, whether these cir- cumstances have fallen under their own observation or have been given in evi- dence by others. " The jury being drawn from the body of their fellow-citizens, are presumed to have the intelligence Which belongs to men of good sense, but are not supposed to possess professional skill, and, therefore, in matters requiring the exercise of this skill, are permitted to obtain what is needed from those who have it, and who are sworn to communicate it fairly. Thus shipmasters have been allowed to state their opinions on the seaworthiness of a ship from a survey which had been taken by others ; physicians to pronounce upon the effect of a wound which they have not seen ; and painters and statuaries to give their opinion whether a painting or statue be an original or copy, although they have no knowledge "by whom it was made. This is mere opinion, although the opinion of skilful men. This, none but professional men are permitted to give in matters involving peculiar skill, and none whatever are allowed to give in matters not thus involving skill ; because, with this exception, the jury are equally com- petent to form an opinion as the witnesses, and, with this exception, their judgment ought to be founded on their own un- biassed opinion. But judgment founded on actual observation of the capacity, dis- position, temper, character, peculiarities of habit, form, features, or handwriting of others, is more than mere opinion. It approaches to knowledge, and is knowl- edge, so far as the imperfection of human nature will permit knowledge of these things to be acquired ; and the result thus acquired should be communicated to the jury, because they have not had tlje op- portunities of personal observation, and because in no other way can they effect- ually have the benefit of the knowledge gained by the observations of others. " It has also been insisted that there is a difference between the attesting witnesses to an instrument and other witnesses, as to their competency to express an opinion upon the capacity of the maker. Wher- ' ever such a difference has been intimated, it seems confined to cases of wills, in which it is said, that " the testator is in- trusted to the care of the attesting wit- nesses — that it is their business to inspect and judge of the testator's sanity before they attest — that in other cases witnesses are passive, here they are active, and principal parties to the transaction.'' Now we can readily conceive why, primcrfacie, it shall be presumed that witnesses thus engaged are more observant than others on whom the duty of observation has not been thrown, and also the propriety of the rule, which obtains on the trials of an issue LEADING CRIMINAL CASES. Ill Insanity — Delusion — Medical Testimony. of devisavit vel non, that all the attesting witnesses, if to be had, shall be produced and examined before the jury. But we do not see (and without sufficient reason or clear authority for such a distinction we cannot admit it) why the judgment of any witness, actually founded upon such observation, shall not be received in evi- dence. It is conceded that the attesting witnesses may express an opinion upon the testator's capacity, because, as the law has made it their duty to inspect the testator's capacity, the law presumes that they did observe and judge of it. If observation presumed, be a sufficient ground for receiving in evidence the judg- ment of a witness, supposed to be there- upon formed, it is not readily conceivable that actual observation is an insufficient ground to warrant respect for the judg- ment of a witness, in fact formed upon it." If admissible in such case, we can see no reason why it should not be whenever the question of sanity or insanity is in issue. The American authorities generally favor the admission of such evidence, re- quiring, however, that the witness should first state the facts and circumstances on which his opinion is founded. Clarice v. The State, 12 Ohio, 483 ; Grant V. Thomp- son, 4 Connecticut, 203 ; Rambler v. Try- on, 7 Sergeant & Rawle, 90 ; Wogan v. Small, 11 Sergeant & Rawle, 141 ; Morse v. Crawford, 17 Vermont, 499; Lester v. Pittsford, 7 Vermont, 158; Gibson v. Gib- son, 9 Yerger, 329 ; Potts v. House, 6 Georgia, 324 ; Culver v. Haslam, 7 Bar- bour, 314, where the subject is examined at length ; Baldwin v. The Slate, 12 Mis- souri, 223 ; De Witt v. Barley, 13 Bar- bour, 550 ; Kinne v. Kinne, 9 Connecticut, 102; Norris v. The State, 16 Alabamai 776 ; Florey v. Florey, 24 Alabama, 241 ; Powell v. The Stale, 25 Alabama, 27. It is also admitted in the English ecclesias- tical courts. Wheeler v. Alderson, 3 Hag- gard, 5 74. But with deference to the decisions of so many very respectable tribunals, it is not easy to see the grounds upon which such testimony is competent. That ordi- nary witnesses cannot give their mere opinion, unsupported by facts and circum- stances, all agree. Why then should the fact that such witnesses have stated facts which may tend to satisfy the jury of the insanity, enable the witness to give his opinion, 'when he otherwise could not; or make that competent evidence which be- fore was not so ? The disclosure of the facts and circumstances on which the opinion was based, might, if the opinion were admissible at all, add much to its weight and strength ; it might affect ma- terially its credibility ; but that is a very different question from its competency; the one is solely for the jury, the other solely for the court. In some courts, such evidence is not admitted, and persons, not experts, nor subscribing witnesses to a will, are not permitted to state their opinion as to a person's sanity, although they first state the facts and circumstances on which it is founded. Commonwealth v. Wilson, 1 Gray, (Massachusetts,) 337 ; Poole v. Richardson, 3 Massachusetts, 330 ; Needham v. Ide, 5 Pickering, 510. And see the opinion of Hand, J., in Culver v. Haslam, supra. 3d. What degree of proof is sufficient to authorize the finding of a verdict of insanity f That every man is presumed to be sane until the contrary appears, has become an axiom of the law ; and therefore that it is incumbent on the prisoner to establish the faqt of insanity, whenever he relies upon such a defence, has been again and again declared. Attorney- General v. Parnther, 3 Brown, C. C. 441 ; Lee v. Lee, 4 Mc- Cord, 183 ; Jackson v. King, 4 Cowen, 207 ; Huge v. Fisher, 1 Peters, C. C. 163 ; Jackson v. Van Dusen, 5 Johnson, 144 ; The State v. Stark, 1 Strobhart, 479 ; The Peo- ple v. Robinson, 1 Parker, C. C. 649 ; Lake v. The People, 1 Parker, C.C. 495 ; Regina v. Layton, 4 Cox, C. C. 149 ; Regina v. Turton, 6 Cox, C. C. 385 ; Regina v. Stokes, 3 Carrington & Kirwan, 188 ; United States v. McGlue, 1 Curtis, 1. Whether in a criminal case, this rule is always true in its whole length- and breadth, may be discussed in a future note on the " Burden of Proof," but the au- thorities as yet recognize no distinction between civil and criminal cases, in this 112 LEADING CKIMINAL CASES. Insanity — Delusion — Medical Testimony. respect. For the present, therefore, we assume, as true, the language of Rolfe, Baron, in Regina v. Taylor, 4 Cox, C. C. 155, that " in cases of insanity, there is one cardinal rule never to be departed from, viz. : that the burden of proving innocence rests on the party accused. Every man committing an outrage on the person or property of another must be, in the first instance, taken to be a respon- sible being. Such a presumption is neces- sary for the security of mankind. A man going about the world, dealing and acting as if he were sane, must be presumed to be sane, till he proves the contrary." See also Regina v. Stokes, 3 Carrington & Kirwan, 188. The question therefore is, said that acute minded judge, not " whe- ther the prisoner is of sound mind, but whether he has made out to the satisfac- tion of the jury that he was of unsound mind." For, of course, if the prisoner must prove his insanity, he must prove it to the satisfaction of a jury. But what degree of satisfaction must he produce in their minds to entitle him to an acquittal ? Does the same burden devolve upon him as upon the government to prove the corpus delicti f Must he satisfy the jury beyond a reasonable doubt, or by a fair balance of testimony ? The same rule has been sometimes applied to the pris- oner as to the government. Thus, in The Slate v. Brinyea, 5 Alabama, 244, the judge at nisi prius ruled that " it was in- cumbent upon the State to make out the prisoner's guilt beyond all reasonable doubt, but if the act was proved, then the prisoner was bound to make out by the testimony, beyond all reasonable doubt, that he was insane at the time the act was committed, by proof strong, clear, and convincing. But if, upon the testimony, the jury entertained no reasonable doubt of the defendant's sanity, they should find him guilty." And this ruling was affirmed on error. The same rule is said to have been adopted in The State v. Marler, 2 Alabama, 43. Rolfe, Baron, in Regina v. Stokes, 3 Carrington & Kirwan, 188, says : " If the prisoner seeks to excuse himself upon the plea of insanity, it is for him to make it clear that he was insane at the time of committing the offence charged. The onus rests on him, and the jury must be satisfied that he was actually insane. If the matter rle left in doubt, it will be - their duty to convict." The same was said in The State v. Stark, 1 Strobhart, 479. Chief Justice Hornblower, in The State v. Spencer, 1 Zabriskie, 202, said, with some emphasis : " Where it is admitted, or clearly proved, that the prisoner commit- ted the act, but it is insisted that he was insane, and the evidence leaves the ques- tion of insanity in doubt, the jury ought to find against him. The proof of insanity at the time of committing the act, ought to be as clear and satisfactory, in order to acquit a prisoner on the ground of in- sanity, as proof of committing the act ought to be, in order to find a sane man guilty." But a milder and more merciful rule was adopted in our leading case, viz. : That if the prisoner satisfied the jury by a preponderance of the evidence that he was insane, the defence was made out. It has sometimes been thought that Commonwealth v. Rogers decided that the defendant must make out his insanity by a preponderance of testimony. But we do not so understand it. The question of burden of proof was not at all raised in the case. But the court simply said, if the preponderance of the testimony was in favor of the insanity, the jury would be authorized to find him insane ; without saying whether they would or would not have been so authorized upon any other state of the evidence. And can any stronger proof of insanity than this be required in any case ? It being a universally admitted princi- ple, that in all causes between party and party, the proof of any fact by the preponderance of testimony is all that is requisite, is not the only exception to this rule the case where the government is one party, and the individual the other ? And is not this exception, requiring proof beyond a reasonable doubt of the prosecu- tion, an exception in favorem vitce ; the natural result of the legal presumption of innocence, always allowed ; and should it not be limited and applied only to the LEADING CHIMIN AL CASES. 113 Drunkenness — Effect of — Criminal Intent. precise case on which it is founded ? Is some statutory laws, as game laws, or li- not the analogy of the criminal law in cense laws, if the defence rests on the favor of the less stringent rule ? For in- fact that the defendant was a qualified or stance, when the defence for homicide is licensed person, is not that fact made out that gross provocation existed, reducing by a preponderance of the testimony ? the crime from murder to manslaughter, ■ See Smyth v. Jefferies, 9 Price, 257. is the defendant bound to prove the prov- In like manner, when the defence to an ocation beyond a reasonable doubt, or will assault and battery is that the blow was a preponderance of testimony suffice? The accidental, if the proof of that fact is ever latter was the opinion of the court in upon the, defendant, is not the defence Commonwealth v. York, 9 Metcalf, 94. established by a fair balance of the tes- So, where the defence is an alibi, must timony on his side ? And if infancy or the defendant make out, beyond all doubt, coverture be the defence, does not the that he was elsewhere at the time of the same rule apply ? Why should a differ- commission of the crime ? And if the ent rule obtain when the defence is in- jury fairly and truly, doubt whether he sanity? Whether a reasonable doubt of was the person who gave the fatal blow, the prisoner's sanity will not authorize an is he not clearly entitled to an acquittal ? acquittal, see note to Commonwealth v. And in prosecutions for violations of McKie, post. E. II. B. United States v. Alexander Drew. 1 May Term, 1828. Drunkenness — Effect of — Criminal Intent. Where a person is insane at the time he commits a murder, he is not punishable as a mur- derer, although such insanity be remotely occasioned by undue indulgence in spirituous liquors. But it is otherwise, if he be at the time intoxicated, and his insanity be directly caused by the immediate influence of such liquors. Indictment for the murder of Charles L. Clark, on the high seas, on board the American ship John Jay, of which Drew was master, and Clark was second mate. Plea, general issue. At the trial the principal facts were not contested. But the de- fence set up was the insanity of the prisoner at the time of commit- ting (he homicide. It appeared, that for a considerable time before the fatal act, Drew had been in the habit of indulging himself in very gross and almost continual drunkenness; that about five days before it took place, he ordered all the liquor on board to be thrown over- board, which was accordingly done. He soon afterwards began to betray great restlessness, uneasiness, fretfulness, and irritability ; ex- pressed his fear that the crew intended to murder him ; and com- plained of persons, who were unseen, talking to him, and urging him ' 5 Mason, (Circuit Court,) 28. 10* 114 LEADING CRIMINAL CASES. Drunkenness — Effect of — Criminal Intent. to kill Clark ; and his dread of so doing. He could not sleep, but was in almost constant motion during the day and night. The night before the act, he was more restless than usual, seemed to be in great fear, and said, that whenever he laid down there were persons threat- ening to kill him, if he did not kill the mate, &c, &c. In short, he exhibited all the marked symptoms of the disease brought on by in- temperance, called delirium tremens. Upon the closing of the evidence, the court asked Blake, the dis- trict attorney, if he expected to change the posture of the case. He admitted, that unless upon the facts, the court were of opinion that this insanity, brought on by the antecedent drunkenness, constituted no defence for the act, he could not expect success in the prosecution. See 1 Hale, P. C. 29, 36; 1 Russell, P. C. 11 ; 19 State Trials, 496; 3 Paris & Troutt, 140 ; Haslam on Insanity, 50 ; Coates, 34 ; Arm- strong, 372 ; Cooper Med. Jurisp. 10 ; Arnold on Insanity, 67. After some consultation the opinion of the court was delivered as follows : — Story, J. We are of opinion that the indictment upon these ad- mitted facts cannot be maintained. The prisoner was unquestionably insane at the time of committing the offence. And the question made at the bar is, whether insanity, whose remote cause is habitual drunk- enness, is, or is not, an excuse in a court of law for a homicide com- mitted by the party, while so insane, but not at the time intoxicated or under the influence of liquor. We are clearly of opinion that in- sanity is a competent excuse in such a case. In genera}, insanity is an excuse for the commission of every crime, because the party has not the possession of that reason, which includes responsibility. An exception is, when the crime is committed by a party while in a fit of intoxication, the law not permitting a man to avail himself of the excuse of his own gross vice and misconduct, to shelter himself from the legal consequences of such crime. But the crime must take place and be the immediate result of the fit of intoxication, and while it lasts ; and not, as in this case, a remote consequence, superinduced by the antecedent exhaustion of the party, arising from gross and habitual drunkenness. However criminal in a moral point of view such an indulgence is, and however justly a party may be responsible for his acts arising from it to Almighty God, human tribunals are generally restricted from punishing them, since they are not the acts of a reasonable being. Had the crime been committed while Drew was in a fit of intoxication, he would have been liable to be convicted of murder. As he was not then intoxicated, but merely insane from an abstinence from liquor, he cannot be pronounced guilty of the offence. The law looks to the immediate, and not to the rpmrir.fi pause : LEADING CRIMINAL CASES. 115 Drunkenness — Effect of — Criniinal Intent. to the actual state of the party, and not to the causes which remotely produced it. Many species of insanity arise remotely from what in a moral view is a criminal neglect or fault of the party, as from religious melancholy, undue/exposure, extravagant pride, ambition, &c. Yet such insanity has always been deemed a sufficient excuse for any crime done under its influence. D. Davis and Basset, for the prisoner. Verdict, not guilty. The leading case of United Slates v. Drew, settles the point, if it could before have been in doubt, that insanity, the re- mote cause of which is habitual drunken- ness, is as much an excuse for crime as in- sanity produced by any cause. See also United States v. Forbes, Crabbe, R. 558. But it is of drunkenness merely, when not amounting to insanity, in the ordinary ac- ceptation of that word, that we propose now to treat. That voluntary drunkenness is not a sufficient excuse for crime com- mitted while under its influence, is a prin- ciple alike of natural and municipal law. The reason of this is thus clearly stated by Puffendorff, De Jur. Nat. & Gent., lib. 3, ch. 6, § 4 : " Equidem id manifestum est, delicta ob ebrietatem, per quam pa- trata sunt ideo a poena haudquaquain im- munia esse. Scilicet quanquam forte in ebrietate ipsa quis ignoret, quid agat ; tamen ubi quis ultro voluit usurpare ilia, ex quibus obnubilationem mentis orituram norat, censetur etiam in ea consensisse, quae inde erant consecutura. Quia abso- lute est interdictum, delicta admittere, ideo vitanda? quoque sunt homini occa- siones, quse probabiliter in delicta possunt pertrahere. Quid autem ebrietas de- signet, vix est, ut ignorare quis possit. Et cum fpsa ebrietas eo prsecipue nomine sit peccatum, quatenus ad alia peccata hom- inem disponit ; non potest ex peccatorum numero eximi, quod in se est peccatum ideo, quia peccato suam debet originem." And in our own law, Sir E. Coke, in a well-known passage, says : (Co. Litt. 247, a) " As for a drunkard who is voluntarius dosnwn, he hath (as hath been said) no privilege thereby, but what hurt or ill so- ever he doth, his drunkenness doth aggra- vate it : Omne crimen ebrietas et incendit, et detegit." It may be questioned whether drunken- ness can be properly said to aggravate a crime, but it is abundantly settled, upon ancient and modern authority, that it is not a complete defence for any criminal act. In the old case of Reniger v. Fogosa, Plowden, 19, in the exchequer chamber, it is thus laid down : " Where a man breaks the law by voluntary ignorance, there he shall not be excused. As if a person that is drunk kills another, this shall be felony, and he shall be hanged for it, and yet he did it through ignorance, for when he was drunk he had no understand- ing or memory ; but inasmuch as that igno- rance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby. And Aristotle says' that such a man deserves double punishment, because he has doubly offended, viz., in being drunk, to the evil example of others, and in committing the crime of homicide." So, in Beverly's case, 4 Coke, 123, it is said, "that al- - though he who is drunk is, for the time, non compos mentis, yet his drunkenness doth not mitigate his act or offence, nor turn to his avail." Hale's Pleas of the Crown is equally explicit : "The third sort of madness is that which is dementia affeclala, namely, drunken- ness. This vice doth deprive a man of his reason, and puts many men into a perfec.t, but temporary frenzy ; but by the laws of England, such a person shall have no privilege by his voluntarily con. tracted madness, but shall have the same judgment as if he were in his right senses." Vol. 1, p. 32. See, also, Rus- 116 LEADING CRIMINAL CASES. Drunkenness — Effect of— Criminal Intent. sell on Crimes, vol. 1, p. 7; Hawkins, Pleas of the Crown, Book 1, ch. 1, § 6 ; 4 Blackstone's Commentaries, 26 ; 1 Gab- bett's Criminal Law, 9. In John Burrow's case, 1 Lewin, C. C. 75, the prisoner was indicted for rape, and urged as his defence, that he was in liquor. Holroyd, J., told the jury : " Drunkenness is not insanity, nor does it answer to what is termed an unsound mind, unless the derangement which it causes becomes fixed and continued by the drunkenness being habitual, and thereby rendering the party incapable of distinguishing between right and wrong." See, also, Rennie's case, 1 Lewin, C. C- 76. And Alderson, B., in Rex v. Meahin, 7 Carrington & Payne, 297, uses the fol- lowing language to the jury : " It is my duty to tell you, that the prisoner being intoxicated, does not alter the nature of the offence. If a man chooses to get drunk, it is his own voluntary act; it is very different from madness, which is not caused by any act of the person. That voluntary species of madness which it is in a party's power to abstain from, he must answer for." Parke, B., likewise says in Rex v. Thomas, 7 Carrington & Payne, 820 : " I must also tell you, that if a man makes himself voluntarily drunk, it is no excuse for any crime he may commit whilst he is so ; he must take the consequences of his own voluntary act, or most crimes would go unpunished." Drunkenness is itself a crime, and was made punishable in England, as early as 1607, by statute, 4 James 1, ch, 5, with a fine of five pounds, or the sitting six hours in the stocks. Blackstone's remark, therefore, in regard to the excuse of drunkenness, — " the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, though real, will not suffer any man thus to privilege one crime by another," is well founded, notwithstanding the criticism sometimes made upon it. In America, the same general principle has been frequently adopted. Cornwall v. The Slate, Martin & Yerger, 147, 149 ; Burnett v. The Slate, Martin & Yerger, 133 ; The State v. John, 8 Iredell, 330 ; The People v. Robinson, 1 Parker, C. C. 649. In The Slate v. Turner, 1 Wright, 30, the prisoner was indicted for the murder of his own brother. It was proved that he was intoxicated at the time. Wright, J., told the jury : " Much has been said to you about the drunk- enness of the prisoner, as conducing to show that he was of unsound mind. No reliance can be placed upon drunk- enness, as establishing the insanity of a person, which excuses him from accounta- bility for crime. The habit of intoxica- tion is highly immoral and vicious, tend- ing to the destruction of the best interests of society, the severance of the deare«t relations of life. He who takes an intoxi- cating draught voluntarily, makes himself mad, and the law, by reason of such mad- ness, will not excuse him from responsi- bility for crimes committed under its influence. If it were otherwise, the most hardened criminal would escape punish- ment, and the corrupt, and profligate, and revengeful would only have to intoxicate themselves to be exonerated from liability for crime, and to acquire the right to commit any act, however shocking and horrid, with impunity. In our opinion, the law does not afford to bad men such protection." The Supreme Court of North Carolina has also held to the rule laid down above. In 1848 a pris- oner was indicted for murder. • One defence was drunkenness. The judge told the jury, that drunkenness would not lessen the prisoner's guilt, if they believed he was sane before he became drunk. A new trial being moved for on the ground of misdirection, Battle, J., said : " All the writers on the criminal law, from the most ancient to the most recent, so far as we are aware, declare that voluntary drunkenness will not ex- cuse a crime committed by a man other- wise sane, while acting under its influence- Even the cases relied on by the counsel for the prisoner; Rex v. Meahin, 7 Car- rington & Payne, 297, Rex v. Thomas, Ibid. 817, 1 Russell on Crimes, 8, all acknowledge the general rule ; but they LEADING CRIMINAL CASES. 117 = Drunkenness — Effect of — Criminal Intent. say that, when a legal provocation is proved, intoxication may be taken into consideration to ascertain •whether the slayer acted from malice, or from sud- den passion excited by the provocation. Whether the distinction is a proper one or not, we do not pretend to say. It has been doubted in England, Rex v. Carroll, 7 Carrington & Payne, 145, and it is a dangerous one, and ought to be received with great caution. But whether admit- ted or not, it has no bearing upon the present case. There is not a particle of testimony to show that the prisoner was acting, or can be supposed to have been acting, under a legal provocation ; and there was, therefore, no cause for the appli- cation of the principle for which the coun- sel contends." The State v. John, 8 Iredell, 330. The case of Pirtle v. The State, 9 Humphreys, 663, is an important case on this point. The defendant was indicted for murder. At the time of the commission of the offence, he was intoxicated from the use of ardent spirits. And in re- lation thereto the judge charged the jury, "that the fact of such drunken- ness could not be taken into considera- tion by them, unless the defendant was so far gone, as not to be conscious of what he was doing, and did not know right from wrong." " Out of this charge," said Turley, J., "arises the point to be considered by the court in this case, and that is, how far drunkenness, in law, is a mitigation or excuse for the-commission of offences. This is no new question, presented for the first time for consideration, but one of the earliest consideration in the law of offences; one which has been again and again adjudicated by the courts of Great Britain and the United States, and, as we apprehend, with a consistent uniformity rarely to be met with in questions of a like interest and importance. Upon the subject we have nothing to discover, no new principle to lay down, no philosophi- cal investigation to enter into, in relation to mental sanity or insanity, but only to ascertain how the law upon this subject has been heretofore adjudged, and so to adjudge it ourselves. In the case of Cornwall v. The State of Tennessee, Mar- tin & Yerger, 147, 149, the able judge who delivered the opinion of the court, in speaking upon this subject, uses the following very emphatic language : ' A contrary doctrine ought to be frowned out of circulation, if it has obtained it, by every friend to virtue, peace, quiet- ness, and good government. All civil- ized governments must punish the cul- prit who relies on so untenable a defence ; and in doing so, they preach a louder les- soif, of morality, to all those who are ad- dicted to intoxication, and to parents, and to guardians, and to youth, and to society, than comes in the cold abstract from pul- pits.' To the justice and correctness of these remarks, all who have had experi- ence in the annals of crime can bear testi- mony. It is only at the present term. of the court that we have seen it proven, that an offender, a short time before the perpetration of a horrid murder, inquired of a grocery-keeper what kind of liquor would make him drunk soonest, and swal- lowed thereupon a bumper of brandy. We have had three cases of murder, and one of an assault with intent to murder, before us at this term of the court, in every one of which there were convic- tions in the circuit court and affirmances in this; every one of which is of aggra- vated character, and in every one of which the perpetrator, at the time of the commission of the offence, was laboring, under dementia affectata, drunkenness ; an awful illustration of the necessity of holding to the law, as it has been ad- judged upon this subject. There is, in our judgment, no conflict of authority upon this point of law ; every case which may have such appearance being a case of exception in the application of the rule, or a case of no authority upon the subject. Lord Hale, in his work before referred to, (P. C.) part 1, ch. 4, says: 'If, by means of drunkenness, an habitual or fixed madness be caused, that will ex- cuse, though it be contracted by the vice and will of the party ; for this habitual or fixed frenzy puts a man in the same con- dition as if it were contracted at first in- voluntarily.' And it was to this principle the circuit judge was alluding when he 118 LEADING CRIMINAL CASES. Drunkenness — Effect of — Criminal Intent. charged the jury in the present case, that the drunkenness of the prisoner could not be taken by them into consideration, un- less he were so far gone as to be uncon- Bcious of what he was doing, and did not know right from wrong ; in saying which he put. the case most favorable for the prisoner, for a man may be so intoxicated as to be unconscious of what he is doing, and not to know right from wrong ; and yet not have contracted an habitual and fixed frenzy, the result of intemperance, of which Lord Hale is speaking above." In Kelleyv. The State, 3 Smedes and Mar- shall, 518, the same question came before the High Court of Errors and Appeals of Mississippi. The court below declined to charge the jury that intoxication might be evidence of a want of design, and that if so, the killing might not be murder. The prisoner was convicted of manslaughter only ; but the court above, in remarking upon this question, lay down the law as well established, that drunkenness is no excuse for crime, although sometimes held proper for consideration where the sole question is whether the act done was premeditated, or done only with sudden heat and im- pulse, which might be as truly said of anger or any other excitement arising from sudden provocation or peculiar cir- cumstances ; but not much importance was to be attached to it, as might be con- ceived from the presumption, which was equally great, that the design might have previously existed, and intoxication have been employed to nerve the criminal to the commission of the crime ; that the law discriminates between the delusion of intoxication and the insanity which it may ultimately produce. If drunkenness, they said, were to be considered an excuse for crime, there would be established a com- plete emancipation from criminal justice. So, in United States v. Clarice, 2 Cranch, C. C. R. 158, the prisoner was indicted for the murder of his wife, by shooting her with a musket, upon her return home in the evening, from church. Mr. Key, for the prisoner, prayed the court to instruct the jury, that if they should be satisfied, by the evidence, that the prisoner, by long and settled habits of intemperance, had become disordered both in body and mind, and subject to fits which affected both his mind and body, and that by reason thereof he was generally, and at all times, when not under the influence of liquor, of unsound mind, then the pris- oner could not be found guilty of killing the deceased with malice ; which instruc- tion the court refused to give, but in- structed the jury that if they should be satisfied, by the evidence, that the pris- oner, at the time of committing the act charged in the indictment, was in such a state of mental insanity not produced by the immediate effects of intoxicating drink as not to have been conscious of the moral turpitude of the act, they should find him not guilty. And he was found guilty and sentenced to death. In like manner in United States v. James Mc Glue, 1 Curtis's C. C. R. 1, it was held that, if a person, while sane and responsible, makes himself intoxicated, and while in that state commits murder by reason of insanity, which was one of the consequences of intoxication, and one of the attendants of that state, he is responsible. But if he is suffering under delirium tremens, and is so far insane as not to know the nature of the act, nor whether it was wrong or not, he is not punishable, al- though such delirium tremens is pro- duced by the voluntary use of intoxicating liquors. See also Lawton v. The Sun Mu- tual Insurance Company, 2 Cushing, 500. But although drunkenness is not itself a complete defence for crime, as insanity is, yet it may, in certain cases, be admis- sible to the jury as evidence of the in- tent, or rather the absence of an alleged intent, with which the act was done. Thus, in Regina v. Moore, 3 Carrington & Kirwan, 319, (at the Sussex Summer Assizes, 1852, before Jervis, C. C.,) the prisoner was indicted for a misdemeanor in attempting to commit suicide by throw- ing herself into a well^ The evidence was, that she was, at the time, so drunk she did not know what she was doing. Jervis, C. J., told the jury : " If the pris- oner was so drunk as not to know what she was about, how can you find that she intended to destroy herself?" and she LEADING CRIMINAL CASES. 119 Drunkenness — Effect of — Criminal Intent. ■was acquitted. And the same opinion was expressed in Regina v. Doody, 6 Cox, C. C. 463. And in Marshall's case, 1 Lewin, C. C. 76, where the prisoner was indicted for stabbing, Parke, J., told the jury that they might take into consideration, among other circumstances, the fact that the prisoner was drunk at the time, in order to determine whether he acted under a bona fide apprehension that his person or property was about to be attacked. And Goodier's case, in 1831, is said to be the same way, before another judge. So in Regina v. Cruse, 8 Carrington & Payne, 541, on an indictment for inflict- ing a dangerous wound, with intent to murder, under stat. 1 Vict, ch. 85, § 2, and where a positive intention of murder- ing is essential to make out the particular offence charged, Patteson, J., instructed the jury that although drunkenness is no excuse for any crime, yet it is often of very great importance, in cases where it is a question of intention. " A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence. If you are not satisfied that the prisoners or either of them had formed a positive intention of murdering the child, you may still find them guilty of an assault." And the jury found the prisoners guilty only of an as- sault. In a subsequent case under the same statute, where this case was cited, Coleridge, J., said : " The case cited is one of great authority, from the eminence of the learned judge who decided it. The only difficulty is, in knowing whether we get the very words of the judge from the case quoted ; and even if we do, whether all the facts are stated which induced him to lay down the particular rule. Although I agree with the substance of what my brother Patteson is reported to have said, -I am not so clear as to the propriety of adopt- ing the very words. If he said that the jury could not find the intent without being satisfied it existed, I shall so lay it down to you ; the only difference between us is as to the amount and nature of the proof sufficient to justify you in coming to such a conclusion. Under such circum- stances as these, where the act is unam- biguous, if the defendant was sober, I should have no difficulty in directing you that he had the intent to take away life, where, if death had ensued, the crime would have been murder. Drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining himself from committing the act in question, or to take away from him the power of forming any specific intention. Such a state of drunk- enness may no doubt exist. To ascertain whether or not it did exist in this instance, you must take into consideration the quan- tity of spirit he bad taken, as well as his previous conduct. His conduct subse- quentty is of less importance, because the consciousness (if he had any) of what he had done might itself beget considerable excitement. You must not find him guilty of one of these intents on mere guess ; but, on the other hand, I am bound to tell you that if you think one or all of them existed, there is evidence sufficient, in point of law, to justify you in saying so." Regina v. Monkhouse, 4 Cox, C. C. 55. On the same principle it was held in Pigman v. The State, 14 Ohio, 555, that on an indictment for passing counterfeit money, knowing it to be counterfeit, the drunkenness or the prisoner at the time of passing, was proper for the considera- tion of the jury, in determining whether he knew the bill to be counterfeit ; and Read, J., ably and clearly expounded the principles upon which the evidence was considered admissible. See also United States v. Roudenhush, 1 Baldwin, 514. And this principle has been carried somewhat further both in England and this country. In Rex v. Thomas, 7 Car- rington & Payne, 817, the prisoner was in- dicted for maliciously stabbing. One de- fence was a provocation from the injured party, which was urged as reducing the offence, as the blow was inflicted through momentary passion, and not through mal- ice. The prisoner had also used some 120 LEADING CRIMINAL CASES. Drunkenness — Effect of — Criminal Intent. threatening expressions while in liquor, and Park, B., in summing up, said : " Drunkenness may be taken into con- sideration in cases where what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attrib- uted to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober. So, where the question is, whether words have been uttered with a deliberate purpose, or are merely low and idle ex- pressions, the drunkenness of the person uttering them is proper to be considered. But if there is really a previous determin- ation to resent a slight affront in a barbar- ous manner, the state of drunkenness in which the prisoner was, ought not to be re- garded, for it would furnish no excuse. You will decide whether the subsequent act does not furnish the best means of judging what the nature of the previous expression really was." So in Bex v. Median, 7 Carrington & Payne, 297, also an indictment for stab- bing with intent to murder, Alderson, B., instructed the jury : " With regard to the intention, drunkenness may be, perhaps, adverted to, according to the nature of the instrument used." The same prin- ciple was recognized in this country in The State v. Mc Cants, 1 Speers, 384, being somewhat differently applied. The court here held, " that if a crime was com- mitted upon a provocation which, if acted upon instantly by a sober man, would mitigate his offence, evidence of intox- ication was admissible upon the ques- tion whether such provocation was in fact acted upon when the act was done. If a man uses a stick upon you, you would not infer a malicious intent so strongly against him if drunk when he made an intemper- ate use of it, as you would if he had used a different kind of weapon. But where a dangerous instrument is used, which if used must produce grievous bodily harm, drunk- enness can have no effect on the consider- ation of the malicious intent of the party." In Pennsylvania v. Fall, Addison, 257, the prisoner was indicted for murder ; he was drunk at the time of the act. The court left it to the jury whether there was that premeditated malice and design necessary to constitute the crime of murder. " Drunkenness," said the pre- sident, "does not incapacitate a man from forming a premeditated design of murder, but frequently suggests it. But as drunkenness clouds the understanding and excites passion, it may be evidence of passion only, and of want of malice and de- sign." In 1848, the question was before the Supreme Court of Alabama, on an indict- ment for an assault with intent to kill. The court were a9ked to charge the jury, that although drunkenness does not in- capacitate a man from forming a pre- meditated design of murder, yet as it clouds the understanding and excites pas- sion, it may be evidence of passion only, and of a want of malice and design. This the court refused, but told the jury that " drunkenness could have no effect in their consideration." The prisoner ex- cepted, and on the hearing in full court, Chilton, J., declared, that it was a general rule, that although drunkenness reduces a man to a state of temporary insanity, it does not excuse him, nor palliate an offence committed in a fit of intoxication, and which is the immediate result of it ; and that if the prisoner had killed the deceased with the deadly weapon (a knife) with which he stabbed him in a state of intoxi- cation, the crime would not have been re- duced from murder to manslaughter by his intoxication, which must be presumed, in the absence of contrary evidence, to be voluntary ; and the court remark upon the cases of Pennsylvania v. Fall, Addison, 257, and Swan v. The Stale, 4 Humphreys, 136, that there it was important to ascertain whether the homicide was that wilful, de- liberate, malicious, and premeditated kill- ing, which, by the statute, constituted murder in the first degree. The mental state required for that crime being one of deliberation and premeditation, the fact of the prisoner's drunkenness was material, not as an excuse for the crime, but to show it had not been committed. The Slate v. Bullock, 13 Alabama, 413. Possibly this case may have gone too far in refusing to LEADING CKIMINAL CASES. 121 Drunkenness — Effect of — Criminal Intent. allow drunkenness any weight upon the question of intention. See also Sclialler v. The State, 14 Missouri, 502 ; The State v. Thompson, Wright, 617. The fact of drunkenness may doubtless be competent evidence to reduce an act of homicide from murder to manslaughter. And in those States where different de- grees of murder are created by statute, this effect of intoxication has been often con- sidered as effecting the degree of the crime. Swan v. The State, 4 Humphreys, 136, is a strong case upon this point. The prisoner was convicted of murder in the first degree. His counsel had requested the court to charge, as matter of law, that drunkenness would reduce the crime of murder in the first degree to murder in the second degree. The court said, in effect, that drunkenness is no excuse or justifi- cation for any crime ; and upon excep- tions to this ruling, Reese, J., said : The legal correctness of the general statement of the court is abundantly sustained by a long and unbroken series of authorities in ancient and modern times ; but that when the nature and essence of the crime depends by law upon the peculiar state and condition of the criminal's mind at the time, and with reference to the act, drunk- enness, as affecting such state and condi- tion, is proper for the consideration of the jury. The question then is, what is the mental status ? Did the act proceed from sudden passion, or from deliberation and premeditation ? If the mental state re- quired by law is one of deliberation and premeditation, and drunkenness or any thing else excludes the existence of such a state, then it does not excuse the crime, but shows that that crime has not been committed. This decision was subsequent- ly explained by the same court, in Pirtle v. The State, 9 Humphreys, 570, as fol- lows : — " This reasoning is alone applicable to cases of murder under our act of 1829, eh. 28, which provides 'that all murder com- mitted by means of poison, lying in wait, or any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in tfic perpetra- tion, or attempt to perpetrate, any arson, 11 rape, robbery, burglary, or larceny, shall be deemed murder in the first degree, and all other kinds of murder shall be deemed murder in the second degree.' Now, this is drawing a distinction unknown to the common law, solely with a view to the punishment; murder in the first de- gree being punishable with death, and murder in the second degree by confine- ment in the penitentiary. In order to in- flict the punishment of death, the murder must have been committed wilfully, delib- erately, maliciously and premeditatedly ; this state of mind is conclusively proven when the death has been inflicted by poison, or by" lying in wait for that pur- pose ; but if neither of these concomitants attended the killing, then the state of mind necessary to constitute murder in the first degree, by the wilfulness, the deliberation, the maliciousness, the premeditation, if it exist, must be otherwise proven ; and if it appear that there was sudden provocation, though not of such a character as at com- mon law to mitigate the offence to man- slaughter, and the killing thereupon takes place by sudden heat and passion, and without deliberation and premeditation, although the common law would pre- sume malice, yet it is under the statute murder in the second degree, and not to be punished by death. Then it will ■, frequently happen necessarily, when the killing is of such a character as the com- mon law designates as murder, and it has not been perpetrated by means of poison, or by lying in wait, that it will be a vexed question whether the killing has been the result of sudden passion, produced by a cause inadequate to miti- gate it to manslaughter, but still suffi- cient to mitigate it to murder in the sec- ond degree, if it be really the true cause of the excitement, or whether it has been the result of deliberation and premedita- tion ; and in all such cases, whatever fact is calculated to cast light upon the mental status of the offender, is legitimate proof; and, among others, the fact that he was at the time drunk, not that this will excuse or mitigate the offence if it were done wilfully, deliberately, maliciously, and pre- meditatedly ; (which it might well be, 122 LEADING CEIMINAL CASES. Drunkenness — Effect of — Criminal Intent. though the perpetrator was drunk at the time,) but to show that the killing did not spring from a premeditated purpose, but sudden passion, excited By inadequate provocation, such as might reasonably be expected to arouse sudden passion and heat to the point of taking life, without premeditation and deliberation. This dis- tinction can never exist except between murder in the first and murder in the Sec- ond degree under our statute. It is upon such distinction the remarks of the judge, in the case of Swan v. The State, are based, and by it they are to be confined. Tims far we recognize their justness, but can extend them no further. " If a drunken man commit wilful, delib- erate, malicious, and premeditated mur- der, he is, in legal estimation, guilty as if he were sober. If he do it by means of poison, knowingly administered, or by lying in wait, these facts are as conclusive against him as if he had been sober. If, from the proof, in the absence of such lying in wait, or administering of poison, it shall appear that the killing was wilful, deliberate, malicious, and premeditated, he is guilty as though he was sober. But in ascertaining the fact of such intention, all the concomitant circumstances shall be heard, in order to enable the jury to judge whether such deliberate, wilful, malici- ous, and premeditated design existed, or whether the killing was not the result of sudden heat and passion, produced by a sudden and unexpected controversy be- tween the parties, but of such a character as not to mitigate the slaying to man- slaughter. As between the two offences of murder in the second degree, and man- slaughter, the drunkenness of the offender can form no legitimate matter of inquiry ; the killing being voluntary, the offence is necessarily murder*in the second degree, unless the provocation were of such a char- acter as would at common law constitute it manslaughter, and for which latter offence a drunken man is equally responsible as a sober one. " And in the still later case of Haile v. The State, 11 Humphreys, 154, the same question was again before the same court. There the plaintiff in error was indicted for murder, and found guilty of murder in the first degree. There was evidence on the trial that he was intoxicated at the time of the homicide, and the court instructed the jury that voluntary intoxication was no excuse for crime, — rather an aggravation ; yet if the prisoner was so intoxicated as to be unable to form a design deliberately and premeditatedly to do the act, the killing* would be only murder in the second degree. The court then quote and comment upon the previous cases of Swan v. The State and Pirtle v. The State, and state the rule, as declared by the last case, to be, that where the question is between murder in the first and second degree, drunkenness may be proved to show the mental status of the offender, and enable the jury to determine whether the act sprung from a premedi- tated purpose, or from passion excited by inadequate provocation ; and that the de- gree of drunkenness which may shed light upon this mental status is not alone such excessive intoxication as incapacitates the party to frame a design deliberately and premeditatedly to do an act. But that drunkenness cannot be taken into con- sideration in determining whether a party be guilty of murder in the second degree. The court were of opinion that, as to mur- der in the first degree, deliberation and premeditation was a matter of fact to be found by the jury, as to which, the in- fluence of intoxication upon the mind was matter for their consideration. And they held the instruction of the court below erroneous, in stating that it was an aggra- vation of the offence unless so great as to incapacitate the accused from forming a design deliberately and premeditatedly to do the act charged. In Rex v. Grindley, 1 Russell on Crimes, p. 8, note n, Holroyd, J., is re- ported to have ruled that where on a charge of murder the material question is, whether an act was premeditated, or done only with sudden heat and passion, the jury might consider the fact that the party was intoxicated ; but this was sub- sequently denied to be law. In Rex v. Carrol, 7 Carrington & Payne, 145, which was an indictment for murder, Parke, J., said : — LEADING CRIMINAL CASES. 123 Drunkenness — Effect of — Criminal Intent. " Highly as I respect that late excellent judge, I differ from him, and my brother Littledale agrees frith me. He once acted upon that case, but afterwards retracted his opinion. There is no doubt that that case is not law. I think that there would be no safety for human life if it were to be considered as law. The case has also been denied in this country, in Pirlle v. The State, supra, where Turley, J., said : — " The case of Rex v. Grindly, decided at Worcester summer assizes, 1819, by Holroyd, J., not reported, but referred to by Russell in his work upon Crimes, page 8, and now insisted upon by the prisoner as putting the circuit judge in the wrong in his charge to the jury, and holding different principles upon this subject, is expressly overruled by Park and Little- dale, judges, in the case of Rex v. Carrol, 7 Carrington & Payne, 145 ; and if it were not, it is an anomalous case ; and perhaps was not intended or considered by Holroyd, to be in conflict with princi- ples so well and so long settled. The case as stated by Russell, holds that ' though voluntary drunkenness cannot excuse from the commission of crime, yet when upon a charge of murder, the material question is whether an act was premeditated, or done only with, sudden heat and impulse, the fact of the party being intoxicated is a circumstance proper to be taken into consideration.' Now, in relation to this principle as thus laid down, it may be ob- served that cases may arise, even of mur- der at common law, in which it would be proper. to receive such proof as explana- tory of intention. To constitute murder at common law, the killing must have been done with malice aforethought ; the exist- ence of this malice, necessarily implies the absence of all circumstances of justifica- tion, excuse, or mitigation arising from adequate provocation ; and this malice is either express or implied ; express, when it has been perpetrated by poison, lying in wait, or other deliberate and premeditated manner ; implied, from the nature of the weapon, the violence of the assault,' and inadequacy of the provocation. It may become important in a case to know whe- ther poison, which has been implied, was administered knowingly and designedly, ( or accidentally ; and if it be wilful, which it is in the case of the administration of a medicine, there being two on the table, one a poison, and the other not, and the poison be administered, is not the fact that the person who administered it was drunk at the time, legitimate proof for the pur- pose of showing that it was a mistake, which a drunken man might make, though a sober one would not ? This would be, not to protect him from the punishment, for his crime, but to show that he had not given the poison premeditatedly, and therefore was guilty of no crime. So if the question be whether the killing is murder or manslaughter, the defence be- ing adequate provocation, and it being doubtful whether the blow be struck upon the provocation or upon an old grudge, it seems to us, proof that the prisoner was drunk when he struck the blow is legiti- mate, not to mitigate the offence, but in explanation of the intent, that is, whether the blow was struck upon the provocation, or upon the old grudge ; for the law only mitigates the offence to manslaughter, upon adequate provocation, out of com- passion to human frailty ; and, therefore, though there be adequate cause for such mitigation, yet if in point of facj;, one avail himself of it to appease an old grudge, it is murder, and not manslaughter ; and in all such cases the question necessarily is, whether the blow was stricken pre- meditatedly, or upon the sudden heat and impulse produced by the provocation ; and the fact of the self-possession of the per- petrator of the crime, is very material in a conflict of proof upon the subject. If this be the extent of the opinion of Hol- royd in the case of Rex v. Grindly, we are not prepared to hold that it is not law. But if it be understood to hold that a kill- ing may be mitigated from murder to man- slaughter, in consequence of the drunk- enness of the perpetrator, thereby making that adequate provocation, in the case of a drunken man, which could not be so in the case of a sober one, we are prepared to hold with Parke and Littledale, that it is not law." m LEADING CRIMINAL CASES. One Defendant — when a competent Witness for another. Dr. Ray has very ably and fully dis- in his work on " The Medical Jurispru- cussed the general question of criminal dence of Insanity." See the chapter on responsibility in cases of drunkenness, " Drunkenness " in that work, p. 435. and of insanity arising from drunkenness, E. H. B. Commonwealth v. Lewis Marsh and Henry Barton. Same v. Same. 1 October 1, 1830. One Defendant — when a competent Witness for another. Where two were jointly indicted for uttering a forged note, and the trial of one was post- poned, it was held that he could not be called as a witness for the other. In these indictments the defendants were jointly charged with knowingly uttering a forged promissory note. Marsh was tried on both indictments, before Wilde, J. The trial of Barton having been continued to the next term, he was offered as a witness on the part of Marsh ; but was rejected. Marsh was convicted on both indict- ments. If Barton was not rightly rejected, new trials were to be granted ; otherwise, the verdicts were to stand. Dewey, for the defendants. It is not sufficient, in ofder to dis- qualify a witness, that he is interested in the question, but he must be interested in the event of the suit. In this case the acquittal or conviction of Marsh can neither operate in favor of the witness, nor to his disadvantage. If a person is disqualified to be a witness on the part of the accused, because he is united with him in the indict- ment, the government may, at its pleasure, deprive the accused of all his witnesses. Commonwealth v. Easland, 1 Mass. E. 15 ; 2 Stark. Ev. 747 ; Bent v. Baker, 3 T. R. 27. Davis, (solicitor-general,) and Morris, for the commonwealth, cited 3 Stark. Ev. 1062 ; Chapman v. Graves, 2 Campb. 333, note ; Saw- yer v. Merrill, ante, p. 16 ; Man v. Ward, 2 Atk. 228 ; Dougherty v. Dorsey, 4 Bibb. 207 ; 1 Chitty's Cr. L. 605 ; 1 Phil. Ev. (N. York ed. 1816,) 61, 62 ; Tlie People v. Bill, 10 Johns. R. 95 ; Rex v. Locker, 5 Esp. R. 107 ; Rex v. Lafone, 5 Esp. R. 154 ; Davis v. Levins, 7 ' 1 10 Pickering, 57. LEADING CRIMINAL CASES. 125 One Defendant — when a competent Witness for another. 1 Holt's N. P. R. 275; State v. Carr, 1 Coxe's (N. Jers.) R. 1 ; Rex v. Fletcher, 1 Str. 633. Wilde, J., afterward drew up the opinion of the court. It is an inflexible rule of evidence, that parties of record, whether in civil actions or criminal prosecutions, are not admissible as witnesses They are not suffered to testify in their own favor, nor are they com- pellable to furnish evidence against themselves. The rule is not founded ^exclusively on the ground of interest, but on that also of public policy. Thus, nominal parties, who may have no real in- terest in the question to be tried, and who are indemnified as to costs, are nevertheless excluded from testifying. And so in actions of tort, one of several defendants is not admitted to give evidence in favor of a co-defendant. The same rule is adopted in criminal pros- ecutions, even if the defendants are tried separately. This was decided in the case of The People v. Bill, 10 Johns. R. 95 ; and there seems to be no reason ot authority for adopting a different rule. If parties charged with an offence, were permitted to testify for each other, they might escape punishment by perjury. If, in the present case, Barton, whose trial was postponed, had been admitted as a witness for the defendant, he might have been acquitted ; and then, on the trial of Barton, the defendant, in his turn, might be admitted to testify ; and thus they would be allowed mutually to protect each other, and evade the ends of justice. In the case of Rex v. Lafone et al. 5 Esp. R. 155, Lord Ellenborough carried the rule still further, and rejected the testimony of a co-defendant who had suffered judg- ment, which he held was incompetent evidence for the other defend- ant; remarking that he had never known such evidence offered. Such evidence, however, was offered and admitted in the case of Rex v. Fletcher, 1 Str. 633, and it has been admitted in this com- monwealth. After one of several defendants has been convicted, by his own confession, or otherwise, and the conviction does not make him incompetent, there seems to be no good reason why he should not be permitted to testify for or against the other defendants ; for, after conviction, he is no longer a party to 'the issue. But however this may be, it seems clear that the witness offered in the present case was incompetent, and was properly excluded. Motion for new trial overruled. It is a well settled rule in the law of the same whether the defendants are tried evidence, that a party to the same indict- jointly or separately. The People v. Bill, ment is not a competent witness for his 10 Johnson, 95 ; The Stale v. Mooney, 1 co-defendant, until he has been first either Yerger, 402 ; The State v. Smith, 2 Ire- acquitted or convicted; and the rule is dell, 402; Pultenv. The People, 1 Doug- 11* 126 LEADING CRIMINAL CASES. One Defendant — when a competent Witness for another. lass, (Michigan,) 48 ; Campbell v. The Commonwealth, 2 Virginia Cases, 314 ; La- zier v. The Commonwealth, 10 Grattan, 708, 716 ; Rex v. Duffy, 1 Crawford & Dix, C. C. 195. A defendant, who has pleaded guilty, is a competent witness, before sen- tence, for or against his co-defendant. Commonwealth v. Smith, 12 Metcalf, 238 ; Regina v. George, Carrington & Marsh- man, 111 ; Regina v. Hinks, 1 Denison, C. C. 84; 2 Carrington & Kirwan, 462; Regina v. King, 1 Cox, C. C. 232 ; Rex v. Ryan, Jebb, C. C. 55 ; Regina v. Wil- HamSy 1 Cox, C. C. 289 ; Regina v. Arch- er, 3 Cox, C. C. 228 ; Regina v. Arundel, 4 Cox, C. C. 260. See Regina v. Lyons, 9 Carrington & Payne, 555 ; Regina v. Stewart, 1 Cox, C. 0. 174. The case of Rex v. Lafope, 5 Espinasse, 154, cited in the principal case, is not supported, either by principle or authority. It has been established by a series of uniform decisions, that the wife of one of several defendants accused of a crime al- leged to have been jointly committed, is an incompetent witness for any of his associates, when all of them are on trial. Commonwealth v. Robinson, 1 Gray, 555, 560 ; Commonwealth v. Easland, 1 Massa- chusetts, (Band's ed.) 15 ; The State v. Burlingham, 15 Maine, 104; Common- wealth v. Hanson, 2 Ashmead, 31 ; Rex v. Frederick, 2 StrangejJ095 ; Rex v. Locker, 5 Espinasse, 107 ; Rex v. Smith, 1 Moody, C. C. 289; Rex v. Hood, 1 Moody, C. C. 281 ; Regina v. Denslow, 2 Cox, C. C. 230. Yet where the grounds of defence are several and distinct, says Professor Greanleaf, and in no manner de- pendent on each other, no reason is per- ceived why the wife of one defendant should not be admitted as a witness for another; 1 Greenleaf on Ev. tj 335, cited and approved in The State v. Worthing, 31 Maine, 62, 63. And see Regina v. Sills, 1 Carrington & Kirwan, 494. It has also been held, that where several are jointly indicted for an offence, which may be committed either by one or more, and they are tried separately, the wife of one defendant is a competent witness for the others ; and to give them the benefit of her testimony, separate trials will be awarded them, except in cases of con- spiracy and other joint offences. Com- monwealth v. Manson, 2 Ashmead, 31 ; Commonwealth v. Easland, ubi supra ; The Stale v. Moffit, 2 Humphreys, 99 ; The State v. Worthing, 31 Maine, 62 ; The State v. Anthony, 1 McCord, 286 ; Re- gina v. Allen, 1 Crawford & Dix, C. C. 104. See Jones v. The State, 1 Kelly, 610. But a contrary doctrine has been held. In Pullen v. The People, 1 Doug- lass, (Michigan,) 48, the court said : In Commonwealth v. Marsh, Wilde, J., states as a reason why one of two co-defendants jointly indicted for altering a forged note, and whose trial had been postponed, was an incompetent witness for the other, that " if parties charged with an offence, were permitted to testify for each other, they might escape punishment by perjury." By obtaining separate trials, each "de- fendant in his turn, might be admitted to testify, and thus they would be allowed mutually to protect each other, and to evade the ends of justice." If the in- terest of a co-defendant in the investiga- tion of a crime in which he is charged to have participated, is such as to render him incompetent, surely his wife, or if the wife be indicted, her husband would be incompetent for the same reason. But we are not without authorities on the question presented by this case.' . In Com- monwealth v. Easland, ubi supri, five per- sons were indicted for assault and battery, and were on trial together. The wife of one of the defendants was offered as a witness in behalf of the other four. The court ruled unanimously that she could not be examined ; and remarked, that if the other defendants wished for the benefit of her testimony, they should have moved to be tried separately from her husband. This remark was a mere dictum, the ques- tion of the competency of the wife on their separate trial not being before the court. This case is cited 1 Cowen and Hill's Notes to Phillips on Ev. 72 where the authors not only question the authority of this dictum, but cite the case of The People v. Bill, ubi supra, as estab- lishing the doctrine that one defendant was not a competent witness for his LEADING CRIMINAL CASES. 127 Corporations — Criminal Liability — Non-feasance. co-defendants where they severed ; from ence that the wife of such defendant •which they deem it a necessary infer- would also be incompetent. H. Regina v. Birmingham and Gloucester Railway Company. 1 May 28, 1842. Corporations — Criminal Liability — Non-feasance. A corporation aggregate may be indicted by their corporato name for disobedience to an order of justices requiring such corporation to execute works pursuant to a statute. And, if such indictment be preferred at assizes or sessions, where parties cannot appear by attorney, the proper course is to remove it into this court by certiorari, and compel appear- ance by distress infinite. On motion to quash such indictment, as not maintainable against a corporation, the court refused to quash, but directed them to demur, reserving leave to them, if judgment should be given against them on the demurrer, to plead over. • Indictment, found for the spring assizes for the county of Wor- cester, 1840, against a corporation aggregate, the Birmingham and Gloucester Railway Company, for disobedience to an order of jus- tices and an order of sessions confirming it, whereby the defendants, pursuant to certain provisions contained in the statute (6 & 7 W. 4, ch. 14, local and personal) incorporating the company, were directed to make certain arches to connect lands which had been severed by •the railway. The defendants not coming in to plead under the usual venire, some of the goods of the company were seized under a dis- tringas ; and at the Worcester summer assizes, 1840, two of the directors appeared in court to plead, but the officer of the court refused to receive their plea ; and an application on the subject being made to the learned judge, (Parke B.,) he intimated an opinion that the defendants could appear only by attorney, that they could not appear by attorney at the assizes, and that the only course was to remove the indictment by certiorari into this court, and that the defendants should plead by attorney there. Regina v. The Birming- ham and Gloucester Railway Company, 9 C. & P. 469. In Hilary term, January 2 L, 1841, Whately obtained a rule for a certiorari to bring up the indictment ; Littledale, J., observing, on the motion, that he never heard of an indictment against a company for disobedience to an order. In the same term Whately obtained a rule to show cause why the indictment should not be quashed, as not being maintainable against a corporation. In Trinity term, 1841, 1 3 Queen's Bench, R. 223. 128' LEADING CRIMINAL CASES. Corporations — Criminal Liability — Non-feasance. (May 27th, before Lord Denman, C. J., Patteson, Williams, and WlGHTMAN, Js.) Taffourd, Sergt, showed cause, and contended that, although an indictment for misfeasance would not have lain, corporations were indictable for omission of duty. Stat. 6 & 7 W. 4, ch. 14, § 1, enacts that the company may "sue and be sued" by their corporate name; and § 120 regulates the form of indictment in prosecutions by them ; but the act gives no direction as to indictments against them. (The authorities and precedents mentioned were again cited on the argu- ment of the demurrer.) He also urged that the objection taken was no ground for a motion to quash, but might be raised on demurrer, in arrest of judgment, or by writ of error. On this point he cited Rex v. Cooke, 2 B. & C. 618. Whately, in support of the rule, contended that in.all the precedents individuals were pointed out against whom ulterior proceedings could be taken on conviction; here it was not known who composed the company. And that, if the prosecutors demurred and judgment were given against them, they would be concluded. Lord Denman, C. J. As to the proceedings, I do not feel the dif- ficulty so strongly as you put it. We do not, however, wish to decide the point on this motion. We take upon ourselves to say that you may demur; and if we decide against you, you may plead over. Per Curiam. Rule discharged. The defendants appeared in this court, and demurred; and, the prosecutors having joined in demurrer, the case was argued, in last- Hilary term, (Wednesday, January 26th, before Patteson, Cole- kidge, and Wightman, Js.) by Whately, for the defendants. This indictment might have been found at sessions ; and the defendants, though willing to plead and exposed to a distringas from time to time for not pleading, could 'not have pleaded below, because as a corporation they can appear and plead only by attorney, whilst at sessions the parties must appear in person. This is a strong argument against the validity of such an indictment, and it is no answer to say that the indictment may be removed into the crown office; "although at the assizes and sessions, the defendant must appear in person, before plea, it is otherwise in the King's Bench, in the case of misdemeanors;" 1 Chit. Cr. L. 411, 2d ed. Even in this court, the appearance of a defendant in a criminal case by attorney seems to be ex gratia curice. See 4 Hawk. LEADING CRIMINAL CASES. 129 Corporations — Criminal Liability — Non-feasance. P. C. 118, 7th ed., B. 2, ch. 26, § 53 ; Bacon's case, 1 Lev. 146. But, supposing the defendants to have pleaded and to have been found guilty, no punishment can follow ; the judgment for a misdemeanor is that the defendant be fined, et quod idem A. B. capiatur ad satis- faciendum dicto domino regi de fine prasdicto ; that is the form in Fanshawe's case, Trem. P. C. 202, 204 ; and a similar form is used in Holles's case, Trem. P. C. 294, 302. A corporation aggregate cannot be taken ; and, supposing it to have no property, there is no punishment that could be enforced ; they cannot " be outlawed, nor excommunicate, for they have no souls, neither can they appear in person, but by attorney, 33 H. 8 ; Br. Fealty," Bro. Ab. Fealtie & Homage, pi. 15 ; the case of Sutton's Hospital, 10 Rep. 1 a, 32 b. So in Com. Dig. Franchises, F. 19, it is said that " process of out- lawry does not lie against a corporation aggregate ; " " and therefore trespass does not lie against a corporation, but against the par- ticular persons only ; for a capias and exigent do not go against a corporation." And in an anonymous case, in 12 Mod. 559, it is said: "Note: Per Holt, C.J. A corporation is not indictable, but the particular members of it are." The authorities which may be cited on the other side do not impugn this position. There is the precedent of .an indictment (3 Chit. Cr. Law, 600,) against a com- pany of proprietors and certain individuals, assignees of the corpora- tion of Bath, for non-repair of a bridge ; but the joinder of indi- viduals removes the difficulty ; for they might be taken to satisfy the fine. In Rex v. Mayor, SfC. of Liverpool, 3 Bast, 86, this objection was not taken, and the indictment failed on a different ground. In Rex -v. Mayor, Sfc. of Stratford-upon-Avon, 14 East, 348, the indict- ment, which was for non-repair of a bridge, was successful ; but this objection was not taken ; and, as the defendants were indicted by their corporate style of mayor, aldermen, and burgesses, the difficulty would not exist, for the sheriff would only have to ascertain the indi- vidual person who was mayor, and take him ; and the same observa- tion applies to all the modern cases. It appears from a note in the crown office, that in Rex v. Owners and Occupiers of ground called Bum, in the Parish of Easingwold, (Hil. T. 1778; by Mr. Dealtry,) for not repairing a highway, a motion was made to quash the indict- ment because no particular person was named ; a rule nisi was granted; and in the following term the rule was made absolute without opposition ; and this remark is appended : " It appears there- fore that an indictment of a road repairable ratione tenures ought to mention the names of the persons bound to repair, and not to run generally against the owners, &c, as if it was against the inhabitants of a district." It is not contended that the company cannot be punished for disobedience ; but this is not the form. In some recent 130 LEADING CRIMINAL CASES. Corporations — Criminal Liability — Non-feasance. indictments against a gas company a shareholder was indicted by his individual name. If it be said that, although, in the case of a misfeasance, the individual members who are guilty must be indicted, a corporation as such is indictable for non-feasance, this case falls within the distinction, for the indictment is for a contempt, averring notice ; notice cannot be given to the corporation, but only to indi- vidual members ; and if one of them can be shown to have had notice he is liable for the contempt. Talfourd, Sergt, contra. For a non-feasance a corporation aggre- gate is indictable in the corporate name ; there is indeed no direct authority for the position ; but the course of precedents has been uniform for centuries; and the doctrine has frequently been taken for granted both in arguments and by the judges, and is consistent with every thing advanced on the other side except the anony- mous note in 12 Mod. 559. Mr. Kyd comments on that case, (1 Kyd on Corp. 225, ch. 2, § 1,) and draws the distinction correctly : " It seems" that, " where a corporation is bound to keep a bridge or a highway in repair, an indictment will lie against it for not repair- ing. It is, indeed, reported to have been said by Lord Chief Justice Holt, that a corporation is not indictable, but the particular members of it are ; but I apprehend that can apply only to the case of a crime or misdemeanor, and th-at an indictment may lie against a corpora- tion, in the cases mentioned, as well as against a county or parish." In cases of active misfeasance the individuals steps out of their cor- porate capacity ; and it may be on this analogy that it is said tres- pass will not lie ; but trover will, and, as it seems, even for the acts of servants not authorized under seal ; Yarborough v. Bank of Eng- land, 16 East ; see Smith v. Birmingham Gas Company, 1 A. & E.- 526 ; and doubtless it would now be held that trespass will lie. It was so held in Maund v. Monmouthshire Canal- Company, C. P., June 8, 1842 ; 5 Scott, N. S. 457. As to service of declaration in eject- ment on a corporation, see Doe dem. Fisher v. Roe, 10 M. & W. 31. There seems to be no reason against pleading either at assizes or sessions by attorney properly constituted ; at all events the party might plead in this court ; the process will be the same as it is in all cases where outlawry does not lie; thus, on an indictment against a peer, other than for treason, felony, or force, it is by venire and dis- tress infinite; 4 Hawk. P. C. 139, B. 2, ch. 27, § 12; see also 4 Hawk. P. C. 143, B. 2, ch. 27, § 14 ; Rex v. Mayor, SfC. of Hertford, 1 Salk. 374 ; 1 Chit. Cr. L. 347, 348. The difficulty now suggested was felt and overcome as to an appearance in chancery ; in Salmon v. The Hamborough Company, Ca. Chanc. 204 ; S. C. 6 Vin. Abr. 310, tit. Corporations, B. a. pi. 2, a bill was dismissed because in the LEADING CRIMINAL CASES. 131 Corporations — Criminal Liability — Non-feasance. ordinary course of proceedings the chancery could not relieve the plaintiff; for the defendants, being a company, and served with pro- cess would not appear, they having nothing to be distrained by ; but on appeal the house of lords ordered that the dismission should stand, reversed, that the Court of Chancery should issue forth the usual process, and, if cause were, a distringas thereupon against the corporation, and that, if upon return of the process the corporation should not appear, or should appear and not answer, the bill should be taken pro confesso, and a decree should thereupon pass, to be enforced, if necessary, by levies upon every member of the company. In Rex v. Clifton, 5 T. R. 498, the same difficulty was urged, as a reason for not indicting a whole parish for non-repair where it lay in two counties ; and (though Ashhurst, J., differed in opinion,) Lord Kenyon and Buller, J., held that the difficulty might be obviated by removing the record into this court. Neither does it follow that because it may turn out under certain circumstances, such as want of cor- porate property, that a corporation cannot be punished, it is therefore not indictable ; otherwise there could not be a mandamus to a cor- poration ; for on a contempt obedience is enforced by attachment, see Morgan v. The Corporation of Carmarthan, 3 Keb. 350 ; parishes are indicted for the non-repair of highways, and counties for non- repair of bridges; but they cannot be imprisoned. [Coleridge J. You indict the inhabitants of the parish, and the men of the county ; may you not take any of them?] In practice all of them could not be taken ; but any particular inhabitants may be made the defend- ants, which is otherwise in the case of a corporation. In Rex v. Severn and Rye Railway Company, 2 B. & Aid. 646, it was assumed that the company might have been indicted for taking up their railway, which was a public highway ; and the books contain many precedents of similar indictments. (He referred to Cro. Circ. Comp. 355 ; 3 Chit. Cr. L. 586 ; 4 Went. 157 ; 3 Chit. Cr. L. 603 — indict- ment against the Dean and Chapter of Christchurch, and the Mayor, Bailiffs and Commonalty of Oxford, for not cleansing ar watercourse — was also cited, in showing oause against the motion to quash.) That of Rex v. The Mayor, Sfc. of Stratford upon Avon, 14 East, 348, is very strong. The mode in which a corporation might be reached was discussed in the case of Thusfeild and Jones, Master and Ward- ens of the Company of Waxchandlers, Skin. 27, who being cited in the spiritual court, for a church-rate on the company's hall, by their names of baptism and their surnames, with the addition of Master and Wardens of the Company of Waxchandlers, moved for a pro- hibition on the ground that they were sued in their natural capacity, when it should be in their politic capacity ; "but the court said, there was no other way of citing them than this ; they could not cite the 132 LEADING CRIMINAL CASES.' Corporations — Criminal Liability — Non-feasance. body politic ; and therefore, unless by this way, they had no remedy; and it was not like a distringas at common law, by which they may take lands or goods of the company ; but if the company had neither land nor goods, there was no way to make them appear ; but here they said they were cited by their proper names, but in their .politic capacity ; but if they stood out, then they must lie by their heels in their natural capacity ;" and the prohibition was denied. It is clear that no individual' member of the corporation could be indicted for an act done by him as one of the corporation ; unless perhaps it were proved that he had committed' a wrong from mali- cious motives ; Harman v. Tappenden, 1 East, 555 ; and, whatever might be the case if the order were made on individual members, here it is made on the corporation as such, and, under the act, it could not have been otherwise. The joinder of individuals in Rex v. The Kennet and Avon Navigation Company, 3 Chit. Cr. Law, 600, could make no difference ; for the individual defendants could not plead for the company. Corporations feave pleaded misnomers to actions brought against them. It does not follow that, because pro- cess of outlawry does not lie, a party is therefore not indictable ; in the Lord Dacre's case (Cro. Eliz. 148 ; see also Johnson's case, Cro. Jac. 609,) the defendant was indicted for encroaching upon the highway, and an exception was taken under the statute of additions, 1 H. 5, ch. 5, because it was not expressed of what place he was ; " sed non allocator, for process of outlawry lieth not against him, but distress." Whately, in reply. In all the modern precedents individual mem- bers of the corporation are included or ascertained, and they may be proceeded against. In the case of The Corporation of Poole (see Regina v. Ledgard and others, 1 Q. B. 616, 620,) it was found neces- sary to direct the mandamus to individuals specified by name. Cur. adv. vult. Patteson, J.j in this term (May 28th), delivered the judgment of the court. After stating the indictment, removal by certiorari, ap- pearance, demurrer, and ground of demurrer, his lordship proceeded as follows : — " Upon the argument it was not'contended on the part of the com- pany that an action of trespass might not be maintained against a corporation ; for, notwithstanding some dicta to the contrary in the older cases, it may be taken for settled law, since the case of Yar- borough v. The Bank of England, 16 East, 6, in which the cases were reviewed, that both trover and trespass are maintainable ; but it was said that an indictment will not lie against a corporation. Only one direct authority was citedi for this position ; and it is a dictum of LEADING CEIMINAL CASES. 133 Corporations — Criminal Liability — Non-feasance. Lord Holt in an anonymous case reported in 12 Mod. 559. The report itself is as follows : " Note : Per Holt, chief justice. ' A cor- poration is not indictable, but the particular members of it are.". "What the nature of the offence was to which the observation was intended to apply does not appear; and as a general proposition it is opposed. to a number of cases, which show that a corporation may be indicted for a breach of a duty imposed upon it by law, though not for a felony, or for crimes involving personal violence, as for riote. or assaults. Hawk. P. C. B. 1, ch, 66, § 13, vol. ii. p. 58, 7th ed. A corporation aggregate may be liable by prescription, and com- pelled to repair a highway or a bridge ; Hawk. P. C. B. 1, ch. 76, § 8 ; ch. 77, § 2, vol. ii. 156, 258 ; and in the case of Rex v. The Mayor, SfC. of Liverpool, 3 East,"86, the corporation were indicted by their corporate name for non-repair -of a highway, and, upon argument in this court, the indictment was. held to be defective ; but no question was made as to the liability of a corporation to be indicted. In the case of Rex v. The Mayor, SfC. of Stratford upon Avon, 14 East, 348, the corporation was indicted by its corporate name for non-repair of a bridge, and found guilty, and upon argument in this court the verdict was .sustained, and-no question made as to the lia- bility generally of a corporation to an indictment for breach of a duty cast upon it by law. Upon the discussion of the question in the present case, the coun- sel for the company relied chiefly upon the circumstance of the indictment being found at the quarter sessions, (it was so put hypo- thetically, in the argument for the defendants,) where the company could not appear and take their trial, even if so disposed, as a corpo- ration ca'n only appear by attorney, a«d the appearance at the sessions must bein person. We think there is no weight in this objection. It may indeed impose some difficulty upon the prosecutor, and ren- der his proceeding more circuitous, as he will be obliged to remove the indictment by certiorari into this court in order to make it effective'; but the liability of the corporation is not affected. In the case of Rex v. Gardner, 1 Cowp. 79, it was objected that a corporation could not be rated to the poor, bec.ause the remedy by imprisonment upon failure, of distress was impossible; but the court considered the objection of no weight, though, it might be that there would be some difficulty in enforcing the remedy. The proper mode of proceeding against a corporation, to enforce the remedy by indictment, is by distress . infinite to compel appear- ance, after removal by certiorari, as suggested by Mr. Baron Parke in this very case, reported in 9 Car. & Payne, 469 ; and as appears by Hawk. P. C. B. 2, ch. 27, § 14, vol. iv. p. 140 ; and the cases cited in 6 Vin. Abr. 310, &c. tit. Corporations; (B. a) vol. iv. p. 140. 12 134 LEADING CRIMINAL CASES. Corporations — Misfeasance — Appearance of. We are therefore of opinion that, upon this demurrer, there must be judgment for the crown. Judgment for the crown. The defendants pleaded over in the same term, and were convicted at the ensuing summer assizes, 1848, and fined 6s. 8d. # Regina v. The Great North of England Railway Company. 1 June 12, 1846. Corporations — Misfeasance — ; Appearance of. A corporation aggregate may be itfdicted for a misfeasance as well as a non-feasance. An incorporated railway company may be indicted for cutting through and obstructing a highway by works performed in a course not conformable to the powers conferred on the company by act of parliament. Indictment. The first count charged that, before and at the time of the committing of the offences, &c, to wit, 3d July, 1838, there was, and from thence hitherto hath been, and still is, to .wit, at the township of Hurworth, in the county of Durham, a certain common • and public Queen's highway, leading from the village of Hurworth, in the county of Durham, unto Croft Bridge, also in the said county, used by and for all the liege subjects, &C, on foot, and with their horses, &c, and carriages, to go, return, &c, at their free will and pleasure ; and that The Great North of England Railway Company, (a) on the said 3d day, &c, with force and arms, at the township, &c, (a) Stat. 6 & 7 Will. 4, ch. 1 05, local and § 73 prescribes the width, ascent, etc., of personal, •public, "for making a railway -any. bridge erected for carrying any public from, near the River Tyne, to or near the carriage road over the railway.- Kiver Tees, to be called ' The Great North Stat. 7 Will. 4 & 1 Vict. ch. 102, local and of England Railway,' in the county of Dur- personal, public, "to enable 'The Great ham," by § 1, incorporates the company by North of England Railway Company ' to the name and style of " The Great North extend the line of their railway, and to of England Railway Company." make two branches therefrom; and for $11 authorizes the company, "for the other purposes relating thereto," gives purposes and subject to the provisions and power to extend the railway, and "enacts, restrictions of this act," taenter lands, etc., that all the powers, etc., regulations,' etc., and, among other pbwers, to construct in, of the former act, (except such as are ex- upon, across, under, or over the railway, pressly' repealed, etc.,) shall extend to this or in, upon, across, under, or over any act, and the works and things hereby author- lands, etc., roads, etc., such inclined planes, ized, and shall operate and be in force in 'etc., bridges, cuttings, etc., as they shall respect to the objects and purposes of this think proper ; and also to divert or alter act, and has a section, (35,) analogous to the course of any -rivers, etc., roads or .section. 73 of the former act. ■ways, or to raise or sink any such rivers, etc., roads or ways, 19 Queen's Bench, R. 815; 2 Cox, C.C. 70. LEADING CRIMINAL CASES. 185 Corporations — Misfeasance — Appearance of. unlawfully and injuriously did cut through, dig up. and subvert, and' did cause to be cut through, &c.,. great part of the said highway, to wit, forty yards, &c, of the said highway, and then and there, unlaw- fully and injuriously, did dig and make, and did cause to be dug and made, across the said highway, a certain cut and trench, to wit, a cut and trench of great length, &c, to wit, of Jhe length, &c, and then and there, unlawfully and injuriously, did remove, take, and carry away, and did cause to.be removed, &c, from and out of the said cut and trench, divers large quantities of earth, &c, to wit, one hundred tons, &c, and then and there, unlawfully and injuriously, did cast,'lay down, &c, and did cause to be cast, laid down, &c, divers large quantities of. bricks, stones, and lime, to -wit, 100 loads, &c, in and upon the said highway ; and the same part of the said highway so cut through, &c., and the said cut and trench so dug, &c, and the said bricks, &c, so cast, laid down, &c, as aforesaid, with force and arms then and there, unlawfully and injuriously, did keep, maintain, and continue for a long space of time then next following, to wit, &c. By means of which said several premises the said highway, on the 3d day, &c, and for and during all the time aforesaid, became and was obstructed and stopped up,:so that the liege, &c, on, &c, and for and during all tha time aforesaid, could not go, return, &c, as they ought, &c. : to the great damage and common nuisance of all her Majesty's liege subjects going, &c, in, through, and along the Queen's common highway aforesaid ; to the evil example, &c, and against the peace, &c, (not adding " against the statute.") The. second count charged an offence in the same form as the first, except that no termini were stated. The third count alleged the existence of a highway, and th.e cutting and digging it and making a trench across it, as stated in the first count, and then charged that the defendants also then and there, un- lawfully and injuriously, did erect and build, in and upon the said last mentioned highway, a certain bridge, to wit, a bridge of bricks, stones, and other materials ; and the same part of the said last mentioned highway so cut through, &c, and the said cut and trench so dug and made, and the said bridge so erected and built, as last aforesaid, with force and arms then, and there, unlawfully and injuriously, did keep, maintain, and continue for, &c. (as in the first count.) 4th count, like the third, but omitting the termini of the highway. There were five other counts, charging offences against the provisions of stats. 6 & 7 Will. 4, ch. 105, and 7 Will. 4 & 1 Vict. ch. 102. Plea, not guilty. Issue thereon. • On the trial, before Wightman, J., at the Durham spring assizes, 1845, evidence was given on the part of the prosecution, to show that 136 LEADING CRIMINAL CASES. Corporations — Misfeasance — Appearance of. the company had cut through a carriage road with the railway, and had carried the road over the railway by a bridge not satisfying the statutory provisions. For- the defendants, it was objected that no in- dictment for a misfeasance could be maintained against a corpora- tion ; and as to the first four counts, that the defendants were author- ized to cut through the road and erect the bridge, and that, if in doing so, they had not complied with the statutory provisions, they ought to have been indicted for breach of those provisions. The argument as to this point, in banc, is omitted in the report, the court having pro- 1 nounced no express decision upon it ; Regina v. ScotL 3 Q. B. 543, was referred to. Other objections were taken to the last five counts, which it is unnecessary to state. A verdict was found for the crown on all the counts, leave being reserved to move to enter a verdict for the defendants, or to arrest the judgment. In Easter term, 1845, Wortley obtained a rule accordingly. In this term, (Tuesday, May 26th, and Monday, June 8th ; before Lord Denman, C. J., PATTESON-and Wightman, Js.) Granger, Otter, and Bovill showed cause. The prosecutors do not insist on the last five counts ; the first four sufficiently raise the ques- tion, whether a corporation aggregate can be indicted for a misfeas- ance. The dictum of Holt, C. J., in an anonymous case in Modern Reports (12 Mod. 559, case 935,) will be relied upon for the defend- ants. He is reported as saying: " A corporation is not indictable,' but the particular members of it are." It does not appear what the facts there were, nor whether the indictment was for a misfeasance or a non-feasance. [Lord Denman, C. J., referred to Regina v. Bir- mingham and Gloucester Railway Company, 3 Q. B. 223, ante.] It was there held that- a corporation might be indicted for not obeying a statute; and this was assumed in Rex v. The. Severn and Wye Rail- way Company, 2 B. & Aid. 646. These two cases, at least, show that Lord Holt's dictum, as reported, is not now law; and by the judg- ment delivered in the former the dictum is distinctly overruled. At one time it was doubted how a corporation could be brought into chancery ; and the process directed, on appeal, by the house of lords, appears in Dr. Salmon v. Th.e Hamborough Company, 1 Ca. Ch. '204. It is not necessary for the prosecutors here to contend that an indict- ment would lie for any misfeasance involving a breach of the peace ; a murder, for instance, could not be conceived to be authorized by the corporation seal. That is the distinction suggested in Regina v. Bir- mingham and Gloucester Railway -Company, in the judgment of this court, where Hawk. P. C, B. 1, ch. 65, § 13, vol. ii. p. 58, 7th ed., is cited. But for that which is analogous to a mere trespass on land an indictment may lie. The tendency of modern decisions has been to LEADING CRIMINAL CASES. 137 Corporations — Misfeasance — Appearance of. make corporations, civilly as well as criminally, amenable like individ- uals. Trespass quare clausum /regit was held to be maintainable against a corporation in Maund v. The Monmouthshire Canal Com- pany, 4 M. & G. 452; debt on statute, in Tilson v. The Warwick Gas Light Company, 4 B. & C. 962 ; trover, in Yarborough v. The Bank of England, 16 East, 6, and Smith v. The Birmingham Gas Company, 1 A. & E. 526 ; case for neglect to perform repairs, according to the terms of a charter, in Henly v. The Mayor of Lyme, 5 Bing. 91; affirmed on error, in Q. B., Mayor, fyc* of Lyme Regis v. Henley, 3 B. & Ad. 77. In the house of lords, Same v. Same, 1 New Ca. 222 ; case for neglect in performing works, in Matthews v. West London Water Works Company, 3 Camp. 403; case for not keeping clear the navigation of a canal in which the corporation had power to take tolls, in T/ie Lancaster Canal Company v. Parnaby, 11 A. & E. 230, in Ex. Ch. — affirming the judgment of Q,. B., in Parnaby v. The Lancaster Canal Company, 11 A. & E. 223. And, in Beverley v. The Lincoln Gas Light and Coke Company, 6 A. & E. 829, and Church v. Tlie Imperial Gas Light and Coke Company, 6 A. & E. 846, it was held that assumpsit, on a contract not under seal, might be maintained against and by a corporation. In the former of these two cases, the court expressed a readiness to sanction any decisions which they found introducing a relaxation of " a rule established in a state of society very different from the present, at a time when corporations were comparatively few in number, and upon which it was very early found necessary to ingraft many exceptions." In Church v. The Im- perial Gas Light and Coke Company, the court said : " Wherever to hold the rule applicable would occasion very. great inconvenience, or tend to defeat the very object for which the corporation was created, the exception has prevailed." [Patteson, J. Has not the movement recently been rather in the opposite direction?] (See cases collected in Paine v. Strand Union, 8 Q,. B. 326.) In Hall v. The Mayor, Sfc. of Swansea, 5 Q. B. 526, a corporation was held to be liable in as- sumpsit for money had and received. In Mayor of Ludlow \mCharl- ton, 6 M. & W. 815, the Court of Exchequer said : " In modern times a new class of exceptions has arisen. Corporations have of late been established, sometimes by royal charter, more frequently by act of parliament, for the purpose of carrying on trading speculations ; and where the nature of their constitution has been such as to render the drawing of bills, or the constant making of any particular sort of con- tracts necessary for the purposes of the corporation, there the courts have held that they would imply in those who are, according to the provisions of the charter or act of parliament, carrying on the corpo- ration concerns, an authority to do "those acts, without which* the cor- poration could not subsist." That is the doctrine of Murray v. The 12* ' 138 LEADING CRIMINAL CASES. Corporations — Misfeasance — Appearance of. East India Company, 5 B. & Aid. 204, 210. Here the corporation is a railway company, with the ordinary powers (it is not thought neces- sary to set these out) of interfering with roads on certain conditions; and the offence charged is peculiarly one likely to be committed in the performance of acts which the corporation may have occasion to do. No difficulty exists as to connecting them with such acts. Rex v. Medley, 6 C. & P. 292, shows that members of a company, who authorize their servants to commit an act amounting to a nuisance, are liable to be indicted with such servants ; it follows that the cor- porate body, which has the power of authorizing an act under seal, is indictable for such act, if it be a breach of the law. So a corporation may distrain wrongfully by their servant ; Smith v. The Birmingham Gas Company, 1 A. & E. 526. In Rex v. Shelderton, 2 Keb. 221, the inhabitants of a place were indicted for digging in a highway ; but the point was not discussed. The common law punishment for a nuisance is fine, or itnprisonment, or'both. The first of these can be inflicted on a corporation. And the reasoning which the court used in Rex v. Trafford, IB. & Ad. 874, 886, seems applicable. It was there said that an action on the case would have lain, and that it fol- lowed that an indictment lay. Here trespass would lie.' [Patteson, J. Judgment in that case was reversed on error in the Exchequer Cham- ber, Trafford v. The King-, 8 Bing. 204 ; S. C. 2 Cro. & J. 265 ; it then was taken up to the house of lords, but never determined.] The re- versal was on the ground that the statements in the special verdict ■were insufficient; no objection was made to the test propounded in this court. That, which if committed against an individual, would be ground for an action, is ground for an indictment, if committed against the public. Reference may perhaps be made to the case of Sutton's Hospital, 10 Rep. 1 a, 32 b, where it is said that a corpora- tion aggregate " cannot commit treason, nor be outlawed, nor excom- municate, for they have no souls." But that is met by the distinction already pointed out; no actual breach of the peace, perhaps, can be the subject of indictment against a corporation ; nor can the judg- ment proper to treason or felony be executed upon them. But they can, by their servant, obstruct a highway, and may be fined for doing so, or may be compelled to abate. The authorities cited establish the only' two points necessary for supporting this indictment, namely, that the corporation may be reached by the appropriate criminal pro- cess, and that it may commit the act charged. A mandamus is. of course, inapplicable, where the complaint is of a positive act done,. Knowles, Bliss, and Joseph Addison, contra. Admitting, for the sake ofthe argument, that a corporation is liable to actions upon ' deeds under the. corporate seal, for acts authorized to be done under LEADING CRIMINAL CASES. 139 Corporations — Misfeasance — Appearance of. the corporate sea], and for some acts of so ordinary a kind that they may be commanded without seal, and also that, according to Regina v. Birmingham and Gloucester Railway Company, 3 Q,. B. 223, a cor- poration may be indicted for a non-feasance, it will not follow that an indictment lies against them for a misfeasance. The prosecutors' counsel, in this last case, distinguished expressly between a misfeas- ance and a non-feasance, admitting that an indictment would not lie for the former ; that distinction appears to be adopted by the court ; and there is good reason for it. For a non-feasance there would be no other remedy, except in the cases where mandamus lies, inasmuch as the omission cannot be the omission of any particular individual ; but, when an indictable act is done, the individual doing it may be indicted, and so may any individual members of the corporation who have given the illegal command. But suppose, after a corporation had been indicted for the act and punished, such individuals were in- dicted. Could they. support a plea of autrefois convict by showing the conviction of the corporation ? Or are they to be punished twice, once as individuals, and once as members of the bbdy corporate ? It is admitted, on the other side, that the doctrine stated in Hawkins, and eanctioned by this court in Regina v. Birmingham and Gloucester Railway Company, 3 Q,. B. 232, excludes cases of violence ; and 6 Vin. Abr. 309, Corporations (Z,) pi. 2, is to the same effect. Yet a road might be obstructed by violent means; and indeed it is impos- sible to charge an actual obstruction without alleging force ; and it must be supported by proof of what is legally a species of violence. It may be questioned whether the liability of corporations to civil actions has not been extended too far. In Maund v. The Monmouth- shire Canal Company, 4 M. & G. 452, where it was held that trespass vi et armis might be brought against a corporation, the chief argu- ment against the action seems to have been that the appropriate pro- cess could not be issued against a corporation ; and reference was made to a citation, in Bro. Abr. Corporations, pi. 43, from 22 Ass. f. 100 B,.pl.' 77. This argument is strengthened by the circumstance that, before stat. 5 & 6 W. & M. ch. 12, a fine was always imposed on the defendant in an action of trespass, for which the court, ex officio, issued a capias. See Lyndsey v. Clarke, 5 Mod; 285 ; Beechefs case, 8 Rep. 58 a, 59 b. Replevin will not lie against a corporation, be- cause they cannot distrain in their own persons ; 2 Bac. Abr. 264, (7th ed.,) tit. Corporations (E.) A corporation, as such, cannot disseise ; 2 Bac. Abr. 689, Disseisin (B.) Nor, again, would it follow, from a civil action for trespass being maintainable, that ah indictment for the same act is so. An injury committed out-of the realm, an assault by an insane person, an assent to a trespass previously committed for the defendant's benefit, would be grounds for an action, but not for an in- 140 LEADING CRIMINAL CASES. Corporations — Misfeasance — Appearance of. dictment. The object of an action is to give the injured party com- pensation ; that of an indictment, to inflict punishment, for the sake of example, upon acts injurious to the public. Cur. ad. vult. Lord Denman, C. J., now delivered the judgment of the court : — The question is, whether an indictment will lie at common law against a corporation for a misfeasance, it being admitted, in con- formity with undisputed decisions, that an indictment may be main- tained against a corporation for non-feasance. All the preliminary difficulties, as to the service and execution of process, the mode of appearing and pleading, and enforcing judgment, are by this admission swept away. But the argument is, that for a wrongful act a corporation is not amenable to an indictment, though for a wrongful omission it undoubtedly is ; assuming, in the first place, that there is a plain and obvious distinction between the two species of offence. No assumption can be more unfounded. Many occurrences may be easily conceived, full of annoyance and danger to the public, and involving blame in some individual or some corporation, of which the most acute person could not clearly define the cause, or ascribe them with more correctness to mere negligence'in providing safeguards or. to an act rendered improper by nothing but the want of safeguards. If A. is authorized to make a bridge with parapets, but makes it with- out them, does the offence consist in the construction' of the unsecured bridge, or in the neglect to secure it ? But if the distinction were always easily discoverable, why should a corporation be liable for one species of offence and not for the other ? The startling incongruity of allowing the exemption is one strong argument against it. The law is often entangled in technical embar- rassments ; but there is none here. It is as easy to charge one person, or a body corporate, with erecting a bar across a public road as with the non-repair of it; and they may as well be compelled to pay a fine for the act as for the omission. Some dicta occur .in old cases: " A corporation cannot be guilty of treason or felony." It might be added " of perjury, or offences against the person." The Court of Common Pleas lately held that a corpora- tion might be sued in trespass, Maund v. The Monmouthshire Canal Company,A M. & G. 452 ; but nobody has sought to fix them with acts of immorality. These plainly derive their character from the corrupted mind of the person committing them, and are violations of the social duties that belong to men and subjects. A corporation, which, as such, has no such duties, cannot be guilty in these cases ; but they may be guilty as a body corporate of commanding acts to be done to the nuisance of the community at large. The late case of LEADING CRIMINAL CASES. In- corporations — Misfeasance — Appearance of. Regina v. Birmingham and Gloucester Railway Company, 3 Q,. B. 223, was confined to the state of things then before the court, which amounted to non-feasance only ; but was by no means intended to deny the liability, of a corporation for a misfeasance. We are told that this remedy is not required, because the individ- uals who concur in voting the order, or in executing the work, may be made answerable for it by criminal proceedings. Of this there is no doubt. But the public knows nothing of the former; and the latter, if they can be identified, are commonly persons of the lowest rank, wholly incompetent to make any reparation for the injury. There can be no effectual means for deterring from an oppressive ex- ercise of power for the purpose of gain, except the remedy by an in- dictment against those who truly commit it, that is,. the corporation,' acting by its majority ; and there is no principle which places them beyond the reach of the law for such proceedings. The verdict for the crown, therefore, on the first four counts, will remain undisturbed. • Judgment to be entered on the first four counts ; arrested on the others. It was formerly the opinion that corpo- rations were not civilly liable', in their cor- porate capacity for a personal trespass, or in, trespass quare clausum /regit. See Abbot of St. Bennett v. Mayor, of Norwich, Year Book, 21 Edward, 4, 7, 13 ; Case of Sutton's Hospital, 10 Coke, 326; Orr. v. The Bank of Ohio, 1 Ohio, 36 ; Foote v. The City of Cincinnati, 9 Ohio, 31.; and from this it was inferred that a corporation aggregate was not indictable, but only the individual members of it ; but since modern authorities have established the doctrine that trespass quare clausum, and trespass for an assault and battery will lie against a corporation as well as against an indi- vidual, Eastern- Counties Railway Co. v. Broom, 2 Eng. Law and Eq. R. 406 ; 6 Exchequer, 314; Maund v. Monmouthshire Canal Co. 4 Manning & Granger, 452; 5 Scott, N.R. 457 ; Lyman v. While River Bridge Co. 2 Aikens, 255 ; Baler v. Troy Turnpike Co. 2 Hill, 629; Bloodgood v. Mohawk §• Hudson R. R. Co. 18 Wendell, 9 ; Whiteman v. Wilmington Railroad Co. 2 Harrington, 514, it follows as a legiti- mate consequence that when their action becomes injurious to the public at large, the public may have its remedy by indict- ment, in the same manner as an individual might for an individual injury. See Rex v. Trafford, 1 Barnewall & Adolphus, 874. But as a malicious motive, and criminal intent can not justly be attributed to a corporation in its corporate capacity, it is not therefore liable to a civil suit for ma- licious prosecution. Childs v. Bank of Missouri, 17 Missouri, 213; Stevens v. Midland Counties Railway Co. 26 Eng. Law and Eq. R. 410 ; McLellan v. Cumberland Bank, 26 Maine, 566. But see Good- speed v. East Haddam Bank, 22 Connec- ticut,*530, contra, two judges dissenting. And if this be so, it is not indictable for those crimes which necessarily require and involve actual malicious motive. See this distinction clearly recognized in the late case of Commonwealth v. The New Bedford- Bridge, 2 Gray, (not yet published.) And it has been held in England recently that a corporation could not be indicted for a violation of the 59 Geo. 3, ch. 69, against enlisting English soldiers in foreign ser- vice. King of The Two Sicilies v. Will- cox, 1 Simons, N. S. 335. But for breaches of public duty, such as not complying with an order of justices, for nuisances, and other acts, which are in themselves penal 142 LEADING CRIMINAL CASES. Corporations — Misfeasance — Appearance of. ■without proof of malus animus, such as non-repair of highways, bridges, etc, cor- porations always have been liable to indict- ment ; for at common- law all parishes were bound to keep in repair the highways within their respective limits, and one mode of enforcing this obligation was by indict- ment. 3 Chitty on .Criminal Law, 566. See also Rex v. YlRe of Hornsea, 1 Rolle, 406 ; Rex v. Shelderton, 2 Keble, 221. Both of these cases were indictments for misfeasance, and the distinction lately urged between.aets of non-feasance and misfeasance, seems not to have been then thought of.' But however untenable such a distinction may be, it has received the sanction or modern respectable tribunals. See Tte Slate v. Great Works Milling and Manufacturing Co. 20 Maine, 41. In that case the indictment charged the corpora- tion with a nuisance in erecting a dam in the Penobscot Kiver. The dam was erected by the defendants' agent, but by their direction. The corporation was con- victed in the court below, but upon excep- tions, the verdict was set aside, because the indictment should have been found against the agent personally ; and Weston, C. J., . said: "A corporation is created by law for certain, beneficial purposes. . They can neither commit a crime or misdemeanor, by any positive or affirmative act, or incite . others to do so, as a corporation. While assembled at a corporate meeting, a major- ity may by a vote entered upon their re- cords, require an agent to commit a bat- tery ; but if he does so, it. cannot be re- garded as a corporate act, for which the corporation can be indicted. It would be stepping aside altogether from their corpo- rate powers. If indictable as a corpora- tion for an offence, thus incited by them, the innocent dissenting minority become equally amenable to punishment with the guilty majority. Such only as take pari in the measure, should be prosecuted as in- dividuals, either as principals, or as aiding and abetting'or procuring an offence to be committed, according to its character or magnitude. It is a doctrine then, in conformity with the demands of justice, and a. proper dis- tinction between the innocent and the guilty, that when a crime or misdemeanor is committed under color of corporate authority, -the individuals acting in the business, and not the -corporation, should be indicted. ' Angell and Ames on Corpo- rations, 396, § 9: We think it cannot be doubted, that- the erection of a public nuisance, is a misdemeanor. There are cases, where quasi ' corporations are in- dictable for the neglect of duties im- posed by law. Towns, for instance, charged with the maintenance of the pub- lic highways, are by statute indictable for any failure in this respect The corpora- tion here attempted to be charged, have violated no duty imposed upon them by statute. Whatever has been done, was by the hand or procurement of individuals. They may be indicted and punished and the nuisance abated. We have been re- ferred to no precedent where an indict- ment has been sustained against a corpora- tion, upon such a charge; and in our opinion, the individuals concerned and not the corporation,, must be held criminally answerable for what has been done." See also Commonwealth v. Swift Run Gap Turnpike Co. 2 Virginia Cases, 362, to the same effect, a case of misfeasance. But any such distinction between non-feas- ■ ance and misfeasance, is thoroughly ex- ploded by our leading case of Begina v. Great North of England Railway. See to the same effect, The State v. Morris and Essex Railroad Co. 3 Zabriskie, 360 ; Com- monwealth v. Proprietors of New Bedford Bridge, 2 Gray. It would not follow, how- ever, that because the corporation is liable for such misfeasance, the individuals who actually execute the illegal act are not See Regina v. Scotl, 3 Queen's Bench, 543 ; Edge v. The Commonwealth, 7 Barr, 275; Kane v. The People, 3 Wendell, 363. The mode of enforcing a remedy by in- dictment against an aggregate corporation, has given rise to some discussion and doubt^ and in some States legislation has been thought necessary on the subject Thus, in Massachusetts it has been enacted that if any corporation duly indicted should fail to appear after being served with process, the default should be recorded, and the charge in the indictment be taken to be LEADING CRIMINAL CASES. 143 Arrest by Private Person — Justification — Breach of. the Peace. true and judgment rendered accordingly. 9 Carrington & Payne, and by Patteson, And upon this judgment a warrant of dis- J., in Regina v. Birmingham and. Glouces- tress may issue to compel payment for the ter Railway Co. ante. Whether any lim- penalty prescribed by law for the offence itation to the criminal responsibility of cor- charged,with all cost's and interest thereon, porations exists,' and what that limitation Statute, 1851, ch. 348. This would seem td is, still remains to be settled by judicial be, however, only declaratory of the com- discussion, mon law, as laid down by Parke, Baron, in E. H. B. Rees Price v. Robert B. Seeley and Others. 1 May 11, 1S43. Arrest by Private Person — Justification — Breach of the Peace. A private person is not justified in arresting, or giving in charge of a policeman, without a warrant, a party who has been engaged in an affray, unless the affray is still continuing, or there is reasonable ground for apprehending that he intends to renew it. A plea, justifying an arrest for an affray without warrant, ought to contain a direct averment' that there was an affray or a broach of the peace continuing at the time of the arrest, or a well-founded apprehension of its renewal. A plea of justification to an action of trespass for assault and false imprisonment,— after stating that defendants were in lawful possession of a yard, and were there erecting a wall by their servants ; that plaintiff entered the yard, and upon tho wall, and made a great noise, disturbance, and affray, ill-treated defendants, threw down their servants so em- ployed, and obstructed the orection of the wall, in breach of the peace ; then averring a requisition by defendants to plaintiff to depart, and his refusal and continuance ; where- upon defendants and their servants gently removed him, and ho violently resisted, and. assaulted, one of defendants in so doing, — proceeded thus : That plaintiff then and imme- diately afterwards, and just before the said time when, &c, again broke and entered the yard and got upon tho wall, and again made a great noise, disturbance, and affray therein, and threatened to assault, insulted, and ill-treated and showed fight to defendants, and •then again forcibly obstructed the further erection of the said wall, and threw down part thereof, &c., in breach of the peace ; whereupon defendants, having view of the offences and misconduct of plaintiff last aforesaid, in order to prevent such breach of the peace', &c, then and there gave charge of tho plaintiff to a police constable, who' then saw the miscon- duct of plaintiff, to take him before a justice, and the policeman took him before a justice. • Held, that tliese were sufficiently positive averments of a continuing 'breach of tho peace from the commencement until the plaintiff Was given in charge, or amounted to a neces- sary implication of a well-founded apprehension that it would be renewed. This was a writ of error on a judgment of the Exchequer Cham- ber, which affirmed a judgment of the Court of Queen's Bench, under the following circumstances : — In Easter term, 1839,'the plaintiff in. error brought an action against the defendants in error, in the Court of Queen's Bench ; the declara- 1 10 Clark & Finnelly, (House of Lords,) 28. 144 LEADING CRIMINAL CASES. Arrest by Private Person — Justification — Breach of the Peace. tion contained two counts, the first stating an assault, battery, and false imprisonment of the plaintiff by the defendants; and the second stating an assault and battery: The defendants severed in their pleas ; the said R. B. Seeley. and five other defendants, pleaded — 1st. Not guilty to the whole declaration. 2dly. As to the second count, a justification (on which no question arose.) 3dly. As to the first count also, a justification, .stating that four of them, with other persons, being trustees under an act of 10 Geo. 4, for taking down and rebuilding St. Dunstan's Church, were, as such trustees, lawfully possessed of a certain close or yard, with the appur- tenances, situate and adjoining to. Clifford's Inn, in the city of Lon- don, in which close certain persons, with the authority of the said trustees, were, before and at the said, times when, &c, constructing a wall, by Thomas Winney and Thomas Lee, their servants in that behalf; and the said trustees being so possessed, and the. said ser- vants being so employed, the plaintiff, just before any of the said times when, &c, in the said first count mentioned, came into the said 'close or yard, and upon the said wall so constructing, as aforesaid, " and then and there with force and arms made a great noise, disturbance, and affray therein and thereon, and insulted, threatened, abused, and ill-treated the said last-mentioned defendants so being such trustees as aforesaid, and also the said George Colk, one of these defendants, in the. said close or yard respectively ; and then with force -and arms assaulted and. pushed about and threw down the said T. Winney and T. Lee, being such servants employed in constructing the said wall as aforesaid, and then greatly disturbed and disquieted the said trustees in their peaceable and quiet possession of the said respective close • or yard, and' forcibly hindered and obstructed the erection of the said wall there, in breach of the peace of our lady the queen ; whereupon the last-mentioned defendants, R. B. Seeley, &c, being such trustees as aforesaid, requested the said plaintiff to cease his said noise, violence, hindrance, and disturbance, and to depart from and out of the said close or yard and wall respectively ; which the plaintiff then wholly refuse'd to do, and continued his said noise, vio- lence, hindrance, and disturbance. The last-mentioned defendants, so being such trustees as aforesaid, then and just before the said times when, &c, in defence of the possession of their said close or yard and wall, and the said George Colk, Cyrus Elliman, and Thomas Eaves, as their servants in that behalf and by their com- mand, and the defendants did gently lay their hands on the plaintiff, in order to remove, and did then remove the plaintiff from' and out of the said close or yard of the said trustees, and off the said wall, LEADING CKIMINAL CASES. U5- Arrest by Private Person — Justification — Breach of the Peace. as they lawfully might for the cause aforesaid ; the plaintiff with force and arms violently resisted the said removal, and assaulted, beat, and ill-treated the said T. Eaves in so dqing, in further breach of the queen's peace. And the said defendants further say, that the plaintiff then immediately afterwards, and just before the said times when, &c, with force and arms, &c, again broke and entered the said close or yard, and got upon and over the. said wall, and again made a great noise, disturbance, and affray therein and thereon, and threatened to assault, and insulted, and abused, and ill-treated, and showed fight to the defendants, being such trustees as aforesaid, and the said servants, in the said close or yard ; and then again forcibly obstructed and hindered the further construction of the said wall thereon, and forcibly kicked and threw down a part of the same al- ready built, and greatly disturbed and disquieted the said trustees in the peaceable and quiet possession of the said close or yard, in breach of the peace of our lady the queen ; whereupon the last-mentioned defendants, being such trustees as aforesaid, and having view of the said offences and misconduct of the plaintiff last aforesaid, and the said G. Colk, standing by and also having such view as aforesaid, in order to preserve the peace, and to restore order and tranquillity," and to prevent such breach of the peace in the said close or yard respectively, and to proceed peaceably, quietly, and undisturbedly in the construction of the said wall, then and there gave charge of plaintiff to the said T. Eaves, then being a police-constable of and for the city of London, who then saw and had view of the said mis- conduct and breach of the peace committed by the plaintiff as last aforesaid, and then requested the said policeman to take the plaintiff into his custody and carry him before some justice or justices of our lady the queen, assigned to keep the peace in and for the said city of London, to answer the premises and to be dealt with according to law ; and the said policeman, being such constable as aforesaid, at such request of the last mentioned defendants, and the said Cyrus Elliman, in his aid and assistance and by his command, then and there gently laid hands on the plaintiff for the cause and purpose aforesaid, and did then and there take the plaintiff into custody and conduct him from and out of the said close or yard, in order to carry and convey him before such justice as aforesaid." The plea then proceeded to allege that the trespasses were committed in so doing and in overcoming plaintiff's resistance to the constable ; with an averment that as little damage was done to plaintiff and his clothes as might be, and that the, trespasses all took place in the city of London. The defendant Eaves, a London policeman, pleaded, — 1st. Not guilty by statute. 13 146 LEADING CRIMINAL CASES. Arrest by Private Person — Justification — Breach of the Peace. 2d. and 3d. Justifications, on which no question is raised in this writ of error. . The plaintiff joined issue on all the pleas of not guilty, and replied de injuria, &c, to the special pleas ; whereupon issue was joined. The cause was tried before Lord Denman at the London sittings after Michaelmas terra, 1839, when the jury found for the plaintiff in the general issue, with one shilling damages ; and for the defendants on the pleas of justification. A motion to arrest the judgment was afterwards made, but the court directed the judgment to be entered for the defendants. The plaintiff brought his writ of error in the Court of Exchequer Chamber, where the judgment of the Court of Queen's Bench was affirmed. The plaintiff then brought the- present writ of error in this house. Lord Cottenham. It does not appear to us, Mr. Attorney, that we should call upon the defendants in error in this case. The law, as stated by Mr. Kelly from the judgment of Mr. Baron Parke, in the case of Timothy v. Simpson, is perfectly correct. The question is, whether this third plea comes within the rule of law there laid down ? That plea states the forcible expulsion of the plaintiff from this ground, and then proceeds to allege that he " with force and arms violently resisted the said removal, and assaulted, &c, the said T. Eaves in so doing, in further breach of the queen's peace. And the said defendants further say that the plaintiff then immediately after- wards, and just before the said times when, &c, again broke and entered the said close, &c, and again made a great noise and affray therein, and threatened to assault, and insulted, &c, and showed fight to the defendants, &c, and then again forcibly obstructed and hindered the further erection of the said wall, and forcibly kicked and threw down a part of the same already built, and greatly disturbed the said trustees, &c, in breach of the peace of our lady the qUeen ; whereupon the last-mentioned defendants, being such trustees as aforesaid, and having view of the said offences and misconduct of the plaintiff aforesaid, and the said Colk standing by and also having such a view as aforesaid, in order to preserve the peace and to restore order and tranquillity, and to prevent such breach of the peace and to proceed quietly and undisturbedly in the construction of the said wall, then and there gave charge of the said plaintiff." Now that appears to me to be going a great deal further than it need have gone, according to Mr. Baron Parke's judgment; for this is all one continued act. The party who makes this invasion of the premises, where the wall was being co nstructed, did not evidently desist from that breach of the peace in which it is admitted he was engaged. But being forcibly expelled from the premises, he again LEADING CRIMINAL CASES. 147 Arrest by Private Person — Justification — Breach of the Peace. comes on them, again does that which the word " affray" is used to represent, threatens to renew the assault, and proceeds again with the work he had been originally engaged in when he was remove'd, namely, destroying the wall partly erected ; all whieri acts are in the plea distinctly alleged to be against the peace of the queen. Then the act which is the subject of the charge is stated : " Whereupon, in order to preserve the peace and to restore order and tranquillity," &c. The argument is, that the word " whereupon," coupled as it is with the subsequent statement, must be, or may be, intended to mean that the affray and breach of the peace had entirely ceased, and that after it«had ceased the party was given in charge to the constable ; a course of proceeding which a private individual is not entitled to adopt. But the allegation is, after narrating the facts amounting to a. continued breach of the peace, that " whereupon," &c, to prevent the continuance of the disturbance, the party was given in charge. Now I apprehend that the statement there would amount to the allegation of a continued breach of the peace from the very com- mencement up to the moment when the party was given into cus- tody. It amounts to that which is deemed sufficient, if the party at the time the arrest took place had ground to believe that a breach of the peace was either continuing or likely to be renewed. Here is a party who comes on the premises, commits a serious breach of the peace, is forcibly driven out, immediately reenters, and continues the same description of conduct for which he had been previously re- moved. If language can express acts calculated to raise impressions that a breach of the peace was either to be continued or repeated, it does appear to me that those words amply amount to such an alle- gation ; and, under the authority referred to, that would be sufficient to justify the arrest which took place. I therefore think that the judgment must be for the defendants in error. Lord Campbell. This appears to me to be a frivolous writ of error. I understand that there was an application that the queen's judges should, be here, and it was supposed to be a matter of course that they should be here. Now your lordships are extremely anxious in a grave case, upon a question of common law, to have the assist- ance of those reverend sages of the law, and to pay great attention to them ; although your lordships are not bound by their opinion. But to have summoned her Majesty's judges on such a case as this, would have been, as it appears to me, extremely preposterous. It should be understood, that when there is a motive to summon the judges, and your lordships think their attendance necessary, they are generally summoned ; but it is by no means necessary when there is a writ of error, that the judges should be summoned. 148 LEADING CRIMINAL GASES. \ ___________ i Arrest by Private Person — Justification — Breach of the Peace. It seems to me that the counsel for the plaintiff in error very cor- rectly stated, in the course of his argument, what is the law on this sribject. A private person is not justified in arresting any of the queen's subjects'! unless there be a breach of the peace continuing, or unless he has reasonable ground to believe that a breach of the peace, which has been committed, will be renewed ; and it was stated, I think very correctly, that in a plea justifying an arrest and imprisonment, there ought to be a direct averment that there was a breach of the peace continuing, or that there was a well founded apprehension of its renewal. When I look at this plea, I think that both are positively averred. I cannot at all dismiss from my con- sideration the first part of this plea ; for I think, with my noble and learned friend, that this is to be taken as a part of the same trans- action, for there was no cessation at all of the conduct of the plain- tiff, and it is positively averred that the plaintiff "then immediately afterwards, and just before the said times when, &c, with force and arms, &c, again broke and entered the said close, &c., and again made a great noise, &c, and threatened to assault, and insulted and abused and ill-treated, and showed fight to the defendants ; " which last is an expression I never saw in pleadings before, but the mean- ing of which, I apprehend, is pretty well understood ; " and then again forcibly obstructed and hindered the further erection of the said wall, and forcibly kicked and threw down a part of the same already built, and greatly disturbed, &c, the said trustees in the peaceable and quiet possession of the said close or yard, in breach of the peace of our lady the queen." Here is a positive averment that these acts were done in breach of the queen's peace ; and can it be contended that it is possible to have an affray not in breach of the queen's peace ? Then there can be no doubt that in that part of the plea all that is necessary is positively averred. Now let us see whether the continuation of that breach of the peace, at the time of the arrest, is not likewise averred. The plea goes on thus: "Whereupon the last-mentioned defendants, being % such trustees as aforesaid, and having view of the said offences and misconduct of the plaintiff last aforesaid, &c, in order to preserve the' peace, and to restore order and tranquillity, and to prevent such breach of the peace in the said close or yard respectively." Then a breach of the peace had been committed ; whereupon, in order to restore tranquillity, and to prevent such breach of the peace being renewed, the arrest took place. Here is a positive averment that it was continuing ; and further, if we could suppose that it had ceased, which I think there is no reason for supposing, on this statement, there are facts, which, are abundantly shown, from which it is not a mere matter of doubtful interference, but a necessary and inevitable LEADING CRIMINAL CASES. a 149 Arrest by Private Person — Justification — Breach of the Peace. implication, according to the grammatical and usual sense in which language is employed, that there was a, well-grounded apprehension that that breach of the peace would be renewed, and it was in order to prevent such renewal of it that the arrest took place. I am clearly of opinion that this writ of error is brought without reason, that it is frivolous and vexatious, and that there ought to be judg- ment for the defendants, with costs. The judgment of the court below was then affirmed, with costs. Twenty years prior to this decision in the house of lords, the same law had been distinctly declared in America, in the case of Phillips v. Trull, 11 Johnson, 486, although with a different result. That, like the above, was an action of trespass, alleging an assault, battery, and false im- prisonment for six days. The defence was, not guilty, and the following justification : As to assaulting and imprisoning the plaintiff, and detaining him in prison for ten hours, part of the time in the first count mentioned ; that the plaintiff and three other persons, being in a house occupied by one Elisha Fitch, made a g|eat noise, affray, disturbance, and riot in the said house, in breach of the peace, and because the defendant, being a la- borer and lodger in the said house, at the request of the said Fitch, in attempting to keep the peace and stop the noise, etc., was assaulted by the plaintiff, he gave charge of the said plaintiff to one Curtis, to take him into his custody and keep him until he could be carried before a justice of the peace, to answer for the said breaches of the peace ; and that, at the request and by order of the defendant, the said Curtis gently laid his hands on the said plaintiff, and took him into cus- tody for the purposes aforesaid; but be- cause it was midnight, and the plaintiff could not be immediately carried before a justice, he was necessarily detained in the custody of Curtis until the next day; and that he was, as soon as he conven- iently could be, carried before a justice ; and the defendant avers, that, by means of the premises, the plaintiff was neces- sarily imprisoned for the space of ten hours, part of the said time. 'To this plea there was a special de- 13* murrer, which was sustained, and the plea held bad. Piatt, J., thus briefly an- nounced the judgment of the court : — " All persons whatever, who are pres- ent when a felony is committed, or a dan- gerous wound is given, are bound to apprehend the offenders. 3 Hawkins, P. C. 157, Arrest, •$ 1. So any person what- ever, if an affray be made, to the breach of the peace, may, without a warrant from a magistrate, restrain any of the offenders in order to preserve the peace ; but, after there is an end of the affray, they cannot be arrested without a war- rant. 2 Inst. 52 ; Burns's Justice, 92. Hawkins (3 Hawkins, P. C. 164, b. 2, fy 20,) says : ' It seems clear that, regu- larly, no private person can, of his own authority, arrest another for a bare breach of the peace, after it is over.' We are of opinion that the special plea of justifica- tion is bad ; and the plaintiff is, therefore, entitled to judgment on the demurrer." As a private person cannot, therefore, after a breach of the peace, arrest the offender, so it seems he cannot do so to prevent such a misdemeanor. Wheeler v. Whiting, 9 Carrington & Payne, 262. But his power to arrest during an affray is widely different. Timothy v. Simpson, 1 Crompton, Meeson, & Boscoe, 757, is the leading case on that side of the ques- tion. The facts there were these : — The defendant was a linen-draper ; the plaintiff was passing his shop, and seeing an article in the window with a ticket apparently attached to it denoting a low price, sent his oompanion in to buy it ; the shopman refused, and demanded a larger price ; the plaintiff went in him- self and required the article at the lower rate. The shopman still insisted on a 150 LEADING CRIMINAL CASES. Arrest by Private Person — Justification — Breach of the Peace. greater price ; the plaintiff called it " an imposition." Some of the shopmen de- sired him to go out of the shop, in a some- what offensive manner ; he refused to go ■without the article at the price he bid for it ; the shopmen pushed him out. Before they did so, he declared he would strike any one who laid hands on him. One of the shopmen, really supposing, or pre- tending to suppose this to be a challenge to fight, stepped out and struck the plain- tiff in the face, near the shop door ; the plaintiff went back into the shop and returned the blow, and a contest com- menced, in which the other shopmen took a part, and fell on the plaintiff. There was a great noise in the shop, so that the business could not go on — many persons were there, and others about the street door. The noise brought down the de- fendant, who was sitting in the room above. When he came down, he found the shop in disorder, and the plaintiff on the ground, struggling and scuffling with the shopmen ; and this scuffle continued in the defendant's presence for two or three minutes. The defendant sent for a policeman, who soon afterwards came; in the mean time the plaintiff was taken hold of by two of the shopmen, who, however, relinquished their hold before the police- man came ; and, on his arrival, the plain- tiff was requested by the defendant to go from the shop quietly ; but he refused, unless he first obtained his hat, which he had lost in the scuffle. He was standing still in the shop insisting on his right to remain there, and a mob gathering round the door, when the defendant gave him in charge to the policeman, who took him to the police station. The defendant fol- lowed ; but, on the recommendation of the constable at the station, the charge was dropped. " Upon these facts," said the court, "the plaintiff appears to have been, in the first instance, a trespasser, by Tefusing to quit the shop when requested, and so to have been the cause of the affray which subsequently took place ; but the first act of unlawful violence and breach of the peace was committed by the shopman ; that led 1 to a conflict, in which there were mutual acts of violence clearly amounting to an affray, the latter part of which took place in the defendant's pres- ence ; and the plaintiff was on the spot on which the breach of the peace occurred, persisting in remaining there under such circumstances as to make it probable that the breach of the peace would be re- newed, when he was delivered by the de- fendant to the police-officer, in the very place where the affray had happened. " The first question which arises upon these facts is, whether the defendant had a right to arrest and deliver the plaintiff to a constable, the police-officer having, by the statute 10 George 4, ch. 44, § 4, the same powers as a constable has at common law. It is not necessary for us to decide in the present case whether a private individual, who has seen an affray committed, may give in charge to a con- stable who has not, and such constable may thereupon take into his custody the affrayers, or either of them, in order to be carried before a justice, after the affray has entirely ceased, after the of- fenders have quitted the place where it was committed, and there is no dangertff its renewal. The power of a constable to take into his custody, upon the reasonable information of a private person, under such circumstances, and of that person to give in charge, must be correlative. Now, as to the authority of a constable, it is perfectly clear that he is not entitled to arrest, in order himself to take sureties of the peace, for he cannot administer an oath, Sharrock v. Hannemer, Croke, Elizabeth, 376 ; but whether he has that power, in order to take before a magis- trate, that he may take sureties of the peace, is a question on which the authori- ties differ. Lord Hale seems to have been of opinion that a constable has this power. 2 Hale's Pleas of the Crown, 89. And the same rule has been laid down at Nisi I J rius, by Lord Mansfield, in a case referred to in 2 East's Pleas of the Crown, 806 ; and by Buller, J., in two others, one quoted in the same place, and an- other cited in 3 Campbell's Nisi Prius Cases, 421. On the other hand, there is a dicturn to the contrary in Brooke's Abridgement, ' Faux. Impt.' 6, which is LEADING CRIMINAL CASES. 151 Arrest bv Private Person — Justification — Breach of the Peace. referred to and adopted by Lord Coke, in 2 Institutes, 52. Lord Holt, in The Queen v. Tooley, 2 Lord Raymond, 1301, expresses the same opinion. Lord Chief Justice Eyre, in the case of Coupey v. Henley, 2 Espinasse, 540, does the same. And many of the modern text books state that to be the law. Burns's Justice, 2Gth edition, ' Arrest,' 258 ; Ba- con's Abridgment D. ' Trespass,' 53 ; 2 East's Pleas of the Crown, 506 ; Haw- kins's Pleas of the Crown, book 2, ch. 13, § 8. Upon the present occasion, how- ever, we need not examine and decide between these conflicting authorities ; for here the defendant, who had immediately before witnessed an affray, gave one of the affrayers in charge to the constable on the very spot where it was committed, and whilst there was a reasonable apprehen- sion of its continuance ; and we are of opinion that he was justified in so doing, though the constable had seen no part of the affray. It is unquestionable that any bystander may and ought to interfere to part those who make an affray, and to stay those who are going to join in it till the affray be ended. It is also clearly laid down that he may arrest the affray- ers, and detain them until the heat be over, and then deliver them to a consta- ble. Lambard, in his Eirenarcha, ch. 3, p. 130, says : ' Any man also may stay the affrayers until the storm of their heat be calmed, and then he may deliver them over to a constable to imprison them till they find surety for the peace ; but he himself may not commit them to prison, unless the one of them be in peril of death by some hurt, for then may any man carry the other to jail till it be known whether he, so hurt, will live or die, as appeareth by stat. 3 Henry 7, ch. 1.' In Hawkins's Pleas of the Crown, book 1, ch. 63, § 11, it is said, that it seems agreed that any one who sees others fighting may lawfully part them, and also stay them until the heat be over, and then deliver to the con- stable, who may carry them before a jus- tice of the peace, in order to their finding security for the peace ; and pleas founded upon this rule, and signed by Mr. Justice Buller, are to be found in 9 WentwortH's Pleadings, 344, 345 ; and De Grey, C. J., on the trial, held the justification to be good. It is clear, therefore, that any per- son present may arrest the affrayer at the moment of the affray, and detain him till his passion is cooled, and his desire to break the peace has ceased, and then de- liver him to a peace officer. And, if that be so, what reason can there be why he may not arrest an affrayer after the actual violence is over, but whilst he shows a dis- position to renew it by persisting in re- maining on the spot where he has com- mitted it ? " Both cases fall within the same principle, which is, that for the sake of the preserva- tion of the peace, any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shows that the public peace is likely to be endangered by his acts. In truth, whilst those are assembled together who have committed acts of violence, and the danger of their renewal continued, the affray itself may be said to continue ; and during the affray the constable may, not merely on his own view, but on the in- formation and complaint of'another, arrest the offender; and, of course, the person so complaining is justified in giving the charge to the constable. Lord Hale, Pleas of the Crown. The defendant, therefore, had a right in this case, the danger con- tinuing, to deliver the plaintiff into the hands of the police officer, unless the cir- cumstance that the plaintiff was not guilty of the first illegal violence made a differ- ence. Now, at the time the defendant interfered, he was ignorant of that fact; he saw the plaintiff and others in a mutual contest, and that mutual contest the law gave him power to terminate, for the sake of securing the peace of his house and neighborhood, and the persons of all those concerned, from violence ; and if he had the power to arrest all, he was justified in securing any one, not absolutely, but only until a magistrate could inquire into all the circumstances on oath, and bind over one party to prosecute, or the other to keep the peace, as upon a review of all the circumstances he might think fit. If no one could be restrained of his liberty, 152 LEADING CRIMINAL CASES. Arrest by Private Person — Justification — Breach of the Peace. in cases of mutual conflict, except the party who did the first wrong, and the bystanders acted at their peril in this respect, there would be very little chance of the public peace being preserved by the interference of private individuals, nor, indeed, of peace officers, whose power of interposition on their own view appears not to differ from that of any of the king's other subjects. For these reasons we are of the opinion that the defendant was, upon the facts in evidence, justified in delivering the plaintiff to the police offi- cer." See Derecourt v. Corbishley, 32 Eng. Law and Eq. K. where it was held, that a private person is justified in deliv- ering a disturber of the peace into charge of an officer, although he might not him- self be authorized under the circumstances to make the arrest. Great caution is, however, necessary that what occurred as the occasion of the arrest, was strictly a breach of the peace. See Ingle v. Bell, 1 Meeson & Welsby, 516; Cohen v. Huskisson, 2 Meeson & Welsby, 477 ; Baynes v. Brewster, 2 Queen's Bench, 375; Grant v. Moser, 5 Manning & Granger, 123. See Howell v. Jackson, 6 Carrington & Payne, 723 ; Moriarty v. Brooks, 6 Carrington & Payne, 684. And proof of annoyance and disturbance by a person present at a public temperance meeting, such as crying "Hear! hear!" and putting questions to the speaker, and commenting upon his statements, which interrupted the speaker, and diverted the attention of the meeting, but without any assault, or other disturbance, will not justify the chairman of the meeting in giving the intruder into charge of the police. Wood- ing v. Oxley, 9 Carrington & Payne, 1 ; but see Burton v. Henson, 10 Meeson & Welsby, 105, where a parish clerk having been dismissed from his office by the rec- tor, though irregularly, and another ap- pointed, the former entered the church before divine service had commenced, and took possession of the clerk's seat ; it was held, that the church-wardens were justified in removing him from the clerk's desk, and also out of the church, if they had reasonable grounds for believing f that he would offer interruption during the cele- bration of divine service. A private individual who undertakes to arrest another, must not only be prepared with evidence that there was a breach of the peace, but that fact must be directly and positively averred in a special plea ofj usti- fication. See Grant v. Moser, supra. For a private individual cannot, like an officer, avail himself of this defence under the gen- eral issue. McCloughan v. Clayton, 1 Holt, 478. The reason of the difference may be, that the individual having no official duty to discharge in making the arrest, is prima facie a trespasser, and must throw off the presumption thus resting upon him, by putting his defence specifically upon the record. The cases above cited show how strictly such, a plea is scrutinized. Thus in Grant v. Moser, the plea alleged that A. with force and arms came to B.'s door, and with great force and violence attempted to enter against B.'s will, and wilfully and wantonly rang the door-bell without lawful occasion, and made a great noise and disturbance, to the annoyance and disturbance of B., and against the peace of the queen, and so continued to do, wherefore B. gave him in charge to an officer, in order to preserve the peace. On demurrer, this plea was held bad for not alleging directly either a breach of the peace, at the time of the arrest, or that one had been committed, which there was reasonable ground for apprehending its renewal ; Chief Justice Tindal saying that the words " against the peace of our lady the queen,'' were but verba sonantia. See also Wheeler v. Whiting, 9 Carrington & Payne, 262 ; Williams v. Croswell, 2 Carrington & Kirwan, 422; Webster v. Watts, 11 Queen's Bench, 311. In this ease, the plea stated that the plaintiff. was making a noise and disturbance opposite the defendant's house, using loud and menacing language to him and his family, and that by reason of such conduct, while he stood there, many persons congregated in the highway and made a disturbance and riot there, near to and opposite the door of the house, in breach of the peace, LEADING CRIMINAL CASES. 153 Arrest by Private Person — Justification — Breach of the Peace. and to the obstruction of the defendant's business, and of the highway. The plea ■was held sufficient ; Wfghtman, J., saying the plaintiff was creating a public nuisance, and must have been doing so in the offi- cer's view, for the acts appear to have been done just before the officer took him. If a private individual may arrest an- other during an affray, or breach of the peace, a fortiori may this be done dur- ing the commission of a felony. Rex v. Hunt, 1 Moody, C. C. 93. And also to prevent the commission of a felony. Handcock v. Baker, 2 Bosanquet & Puller, 260. But to justify a private individual, acting for himself alone, and not under the direction or command of any officer, in arresting and detaining another for a past offence, two things must concur, which the party arresting must prove at his peril. 1st. A felony must in fact have been committed by some person. 2d. Such private person must have had reasonable cause to believe the party ar- rested the guilty person. 1st. A felony must have in fact been committed by some person. The honest suspicion of the commission of such a crime will afford no protection to the party who makes the arrest. See Holtum v. Lotun, 6 Carrington & Payne, 726 ; Lock v. Ashton, 12 Queen's Bench, 871. The strictness of proof required of the defendant in such a case is well illus- trated by the case of Hedges v. Chapman, 2 Bingham, 523. The defendant there had missed a horse out of his premises, and believing him to have been stolen, and finding him in the plaintiff's stable, gave the plaintiff in charge to a constable, who imprisoned him. Thereupon the plain- tiff brought trespass for assault, battery, and false imprisonment. It was held that there was no defence, since it appeared only that the defendant had had a horse taken out of his field, — not feloniously taken, and therefore the plaintiff had judg- ment. See also Moore v. Watts, Breese, 18, that a charge must import a felony to justify proceedings for an arrest. So in Stonehouse v. Elliott, 6 Term R. 315, the defendant's pocket had been picked in a playhouse, and the plain- tiff being suspected as the person, was given in custody by the defendant to an officer, but it being ascertained that the defendant was wrong in her suspicions of the plaintiff, he sustained trespass against her for the imprisonment. The main question mooted in this case was, whether trespass or case was the proper form of action ; and it does not appear whether the defendant was held inexcusa- ble because no felony had been committed, or because she could not prove she had reasonable grounds to suspect the plaintiff of the act ; but the case well illustrates that the person who takes upon himself to ar- rest another, must make out a full and complete justification. And in this respect there is a wide difference between a pri- vate individual and an officer. Lord Ten- terden, in Beckwith v. Philby, 6 Barnewall & Cresswell, 638, thus expresses his views of the difference : — "There is this distinction between a private individual and a constable ; in or- der to justify the former in causing the imprisonment of a person, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actually been committed ; whereas a constable,, having reasonable ground to suspect that a felony has been committed, is authorized to detain the party suspected until inquiry can be made by the proper authorities." See also the opinion of Lord Mansfield in Samuel v. Payne, Douglass, 360 ; and Chirm v. Morris, 2 Carrington & Payne, 361. The same principles have been frequent- ly recognized in this country. In Holley v. Mix, 3 Wendell, 353, it was declared that " if a felony has, in fact, been com- mitted by the person arrested, the arrest may be justified* by any person without warrant, whether there is time to obtain one or not. If an innocent person is ar- rested upon suspicion by a private indi- vidual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the per- son arrested. But if no felony was com- mitted by any one, and a private indi- vidual arrest without warrant, such arrest 154 LEADING CEIMINAL CASES. Arrest by Private Person — Justification — Breach of the Peace. is illegal." And in Wakely v. Hart, 6 Binney, 316, it was said: " When there is only probable cause of suspicion, a private person may without warrant, at his peril make an arrest. I say at his peril, for nothing short of proving the felony, will justify the arrest." The party arresting, therefore, must not only prove the felony (and probably the same degree of proof would be requisite as on a criminal charge) but the crime proved must amount in law to a technical felony. The known commission of any minor offence, will not authorize an ar- rest. There is no distinction or degrees in misdemeanors for this purpose, and al- though the misdemeanor committed be ob- taining goods by false pretences, it will not justify the person defrauded in giv- ing the person suspected info the charge of an officer. Fox v. Gaunt, 3 Barne- wall & Adolphus, 798. There was no positive proof in this case that any crime, even a misdemeanor, had, in fact, been committed by any person. But the whole case proceeds upon the ground, that even had such been the fact, no right to arrest ■was given ; there being a broad distinction between felonies and misdemeanors. Ma- thews v. Biddulph, 4 Scott, N. R. 54, is to the same effect. The crime changed there •was fraudulently attempting to procure from the defendant, a banker, a check- book belonging to a third party ; but as this was no felony, but only a misde- meanor, it was therefore held no justifica- tion for the arrest. And here again it be- comes exceedingly important to know what crimes are felonies, and what are not ; in many American States the distinction be- tween felonies and misdemeanors has been clearly and sharply drawn by statutory provisions, which generally enact such crimes to be felonies as may be punished by death, or imprisonment in the State's prison. But where no such positive pro- visions exist, the question is one not free from embarrassment, and has given rise to considerable doubt and difficulty in arriving at a satisfactory conclusion. In Rohan v. Sawin, 5 Cushing, 281, it was held that receiving stolen goods, knowingly, was such a felony as would justify an arrest without a warrant. The court, in Wakely v.Hart, 6 Binney, 316, incline to the same opinion, but do not decide the question. See also The King v. Wyer, 2 Term R. 77. On the other hand, adultery is not, at com- mon law, a felony ; and a husband or other person who has the most positive knowledge of the guilt of the wife's paramour, can- not, at common law, arrest and detain the guilty party, not even until a warrant can be obtained ; at least not without subject- ing himself to an action for an assault and false imprisonment. This may seem in- consistent in the common law, that the thief of the most paltry sum may be seized and imprisoned without hazard or risk of prosecution in a civil action, but that he who has robbed a husband and a father of what a husband and a father holds most dear, may escape with impunity before the injured party has opportunity to lay the case before a magistrate, and obtain an officer to arrest the offender. But this results necessarily from the rule above laid down, that felony is the only crime for suspicion of which a private person may arrest another, and that adul- tery is not, at common law, a felony. The State v. Brunson, 2 Bailey, 149 ; Anderson v. The Commonwealth, 5 Randolph, 627; The State v. Cooper, 16 Vermont, 551. Neither was perjury a felony at common law. Anonymous, R. M. Charlton, 228, 232; Bowditch v. Balchin, 5 Exchequer, 378. Nor an assault with intent to mur- der. The State v. Boyden x 13 Iredell, 505. Nor mayhem. Adams v. Barrett, 5 Geor- gia, 404 ; Commonwealth v. Newell, 7 Mas- sachusetts, 245. Nor involuntary man- slaughter by negligence. Shields v. Yonge, 15 Georgia, 349 ; Commonwealth v. Gable, 7 Sergeant & Rawle, 423. Nor imped- ing an officer in the execution of his duty. The State v. Noyes, 25 Vermont, 415. Nor piracy. Rex v. Morphes, 1 Salkeld, 85 ; Mauro v. Almeida, 10 Whea- ton, 495. 2d. The person arresting must allege and prove he had reasonable grounds for be- lieving the party arrested to be the guilty person* That the grounds of suspicion ought to be fully set forth in a special nlea of iusti- LEADING CRIMINAL CASES. 155 Arrest by Private Person — Justification — Breach of the Peace. fication, see Williams v. Croswell, 2 Car- rington & Kirwan, 422 \'McCloughan v. Clayton, 1 Holt, 478 ; Broughton v. Jack- son, 11 Eng. Law and Eq. E. 388 ; Was- son v. Canfield, 6 Blackford, 406. What facts will justify a reasonable belief that the party accused was guilty, must, of course, vary with the peculiar circum- stances of each individual case. The sus- picion ought always to be a reasonable one, founded on pregnant circumstances. Mere suspicion will not sufHce. Findley v. Pruitt, 9 Porter, 195. In Sugg v. Pool, 2 Stewart & Porter, 196, it was held that a personal resemblance between the per- son arrested and the true offender was not sufficient to justify the arrest ; and see Aaron v. Alexander, 3 Campbell, 35. It has generally been thought a, question of law whether the facts proved amount to such reasonable grounds for belief; thus in Mure v. Kaye, 4 Taunton, 34, it was held that the plea must show the peculiar cir- cumstances under which the arrest was made, in order that the court may judge of their reasonableness. And it was there held on demurrer to a plea of justification setting out the facts, that, as matter of law, the plea was insufficient; and the plaintiff had judgment. And the same rule must prevail, if the plaintiff does not see fit to demur, but the cause goes to the jury. It is for the jury to determine sim- ply the truth of the facts stated in the plea, and such facts as may be directly inferred from them, but not whether those facts amounted to reasonable and probable cause ; and if such a question be left to them it is a misdirection, for which the verdict may be set aside. West v. Baxen- dale, 9 Common Bench, 141 ; Panton v. Williams, 2 Queen's Bench, 169, an elab- orately considered case in the Exchequer Chamber. The propriety of this rule was thus indicated by Tindal, C. J : " Upon this bill of exceptions," said he, " we take the broad question between the parties to be this : whether, in a case in which the question of reasonable or probable cause depends not upon a few simple facts, but upon the facts which are numerous and complicated, and upon inferences to be drawn therefrom, it is the duty of the judge to inform the jury, if they find the facts proved and the inferences to be war- ranted by such facts, the same do or do not amount to reasonable or probable cause, so as thereby to leave the question of fact to the jury, and the abstract ques- tion of law to the judge ? And we are all of opinion that it is the duty of the judge so to do. In the more simple cases, where the question of reasonable and probable cause depends entirely on the proof of the facts and circumstances which gave rise to and attended the prosecution, no doubt has ever existed, from the time of the earliest authorities, but that such question is pure- ly a question of law, to be decided by the judge. In Coxe v. Wirral, Crokej James, 193, and in Pain v. Rochester, Croke, Elizabeth, 871, each of which were ac- tions on the case for falsely and malicious- ly procuring the plaintiff to be indicted for felony, the defendant in each action set forth in the plea, the facts and circum- stances that induced him to indict ; and the plaintiff, having in each instance de- murred, it was the court which had to determine, as a matter of law, and not the jury as a matter of fact, whether the statement in the plea did or did not form a sufficient excuse. And in the case last referred to, the very distinction now un- der consideration, was laid down by the court, upon the objection then taken, that the plea amounted to the general issue only ; the court holding it to be a good plea, 'per doubt del lay gents,' for that the defendant ' confessed the procurement of the indictment, and avoided it by mat- ter in law.' And, although the practice which then obtained has been altered for, a great length of time, by introducing into the declaration, not only the statement that the charge was false and malicious, but also that it was made without reason- able or probable cause, and thereby com- pelling the plaintiff to give some evidence thereof, and enabling the defendant to prove his case under the plea of not guilty, — yet the rule of law, that this question belongs to the judge only, and not to the jury, is not, by such alteration in pleading, in any way impaired. And, still further, the authorities collected in the case of 156 LEADING CEIMINAL CASES. Arrest by Private Person — Justification — Breach of the Peace. Sutton v. Johnstone, 1 Term R. 493, and the authority of that case itself, and also the decision of Buller, J., there cited, prove incontestably that it is a question for the jury, whether the facts brought forward in evidence be true or not ; but that what is reasonable or probable cause is matter of law. There have been ,some cases in the later books which appear at first sight to have somewhat relaxed the application of that rule, by seeming to leave more than the mere question of the facts proved to the jury; but, upon fur- ther examination, it will be found that, although there has been an apparent, there has been no real departure from the rule. Thus, in some cases, the rea- sonableness and probability of the ground for prosecution has depended, not merely upon the proof of certain facts, but upon the question, whether other facts which furnished an answer to the prosecution were known to the defendant at the time it was instituted. Again, in other cases, the question has turned upon the inquiry, whether the facts stated to the defendant at the time, and which formed the ground of the prosecution, were believed by him or not ; in other cases the inquiry has been, whether, from the conduct of the defendant himself, the jury will infer that he was conscious he had no reasonable or probable cause. But, in these and many other cases which might be suggested, it is obvious that the knowledge, the belief, and the conduct of the defendant are really so many additional facts for the consideration of the jury ; so that, in effect, nothing is left to the jury but the truth of .the facts proved, and the justice of the in- ference to be drawn from such facts ; both which investigations fall within the legiti- mate province of the jury ; whilst, at the same time, they have received the law from the judge, that, according as they find the facts proved or not proved, and the inferences warranted or not, there was reasonable and probable ground for the prosecution, or the reverse. " And such being the rule of law, where the facts are few and the case simple, we cannot hold it to be otherwise where the facts are more numerous and compli- cated. It is, undoubtedly, attended with greater difficulty in the latter case, to bring before the jury all the combinations of which numerous facts are susceptible, and to place in a distinct point of view the application of the rule of law, according as all or some only of the facts, and infer- ences from facts, are made out to their satisfaction. But it is equally certain that the task is not impracticable ; and it rarely happens but that there are some leading facts in each case which present a broad distinction to their view, without having re- course to the less important circumstances that have been brought before them." See also Wasson v. Canfield, 6 Black- ford, 406 ; Broughton v. Jackson, 11 Eng. Law and Eq. R. 386, where, however, Lord Campbell regretted it had been treat- ed so much as a question of law. The cases therefore of Gujipy v. Brittlebank, 5 Price, 525 ; Beckwill} v. Philby, 6 Barne- wall & Cresswell, 635 ; Davis v. Russell, 5 Bingham, 354 ; Wedge v. Berkeley, 6 Adolphus & Ellis, 663 ; Nicholson v. Hard- wicke, 5 Carrington & Payne, 495 ; where this question was left to the jury, without objection, cannot be considered as author- ities that such is the law. And this is in strict analogy with the question of probable cause in an action for malicious prosecution, where it has always been considered a mixed question of law and fact ; that is, it is a question of fact whether the circumstances alleged as show- ing probable cause, really existed ; and a question of law, whether supposing them to exist, they amount to probable cause. See Johnstone v. Sutton, 1 Term R. 510 ; affirmed in the House of Lords, 1 Brown's P. C. 76, and the valuable note in 1 Amer- ican Leading Cases, 219. To amount to a justification there must be both an actual belief or suspicion on the part of the person arresting, and also reasonable grounds for it. Mere belief and good faith is not sufficient. Hall v. Suydam, 6 Bar- bour, 84 ; Winebiddle v. Porterfield, U Barr, 137 ; Hall v. Hawkins, 5 Humphreys, 357. There must also be such facts and circum- stances as to warrant a cautious man in the belief that the party arrested wa,s the real offender. See Wilmarth v. Mount- LEADING CRIMINAL CASES. 157 Arrest by Officer — Justification — Charge of Felony. ford, 4 Washington, C. C. 82; Broad v. v. Pool, 2 Stewart & Porter, 196 ; Cowles Ham, 5 Bingham, N. C. 722; which rea- v. Dunbar, 2 Carrington & Payne, 565. sonable belief is to depend entirely upon But the general bad character of the plain- the facts known at the time of the arrest, tiff is never admissible in mitigation in such Thomas v. Russell, 25 Eng. Law & Eq. cases. The general principles of the preced- R. 550 ; Swaim v. Stafford, 3 Iredell, 289 ; ing note are nowhere more clearly and com- Wills v.Noyes, 12 Pickering, 324. See lie- prehensively stated than by Lord Hale, 2 ginav. Dadson, 1 Eng. Law and Eq.K. 566. Pleas of the Crown, 78. But to make We have before said that although an good such a justification of imprisonment, individual must prove a felony to have in says he : — fact been committed, before he can fully 1. "There must be in fact a felony justify an arrest, and that evidence of prob- committed by some person ; for were able cause to believe the plaintiff guilty, will there no felony, there can be no ground be no bar to an action for the arrest, yet of suspicion. some courts hold such evidence admissible 2. The party that arrests (if a private in mitigation of damages. Chinn v. Morris, person) must suspect the person arrested 2 Carrington & Payne, 361; Wasson v. to be the felon. Canfield, 6 Blackford, 406 ; and see Mc- 3. He must have had reasonable cause Kenzie v. Allen, 3 Strobhart, 546 ; Russell for such suspicion, and these must be al- v. Shuster, 8 Watts & Sergeant, 308 ; Sugg leged and proved." E. H. B. Samuel v. Payne and Others. 1 April 21, 1780. Arrest by Officer — Justification — Charge of Felony. A peace officer may justify an arrest on a reasonable charge of felony, without a warrant, although it should afterwards appear that no felony had been committed ; but a private in- dividual cannot. Action of trespass and false imprisonment, against Payne, a con- stable, and two others. The facts of the case were these : Hall, one of the defendants, charged the plaintiff with having stolen some laces from him, which he said were in the plaintiff's house. A search-warrant was granted by a -justice of peace upon this charge, but there was no warrant to apprehend him. On the search, the goods were not found ; however, Payne, Hall, and the other defend- ant, an assistant of Payne's, arrested the plaintiff, and carried him to the Poultry Compter on a Saturday, when no alderman was sitting, by which means he was detained till Monday, when, after examina- tion, he was discharged. The cause was tried before Lord Mans- field, and a verdict found against all the three defendants. At the trial, his lordship, and the counsel on both sides, looked upon the rule of law to be, .that, if a felony has actually been committed, any 1 1 Douglass, E. 359. 14 158 LEADING CEIMINAL CASES. Arrest by Officer — Reasonable Suspicion of Felony. man, upon reasonable, probable grounds of suspicion, may justify apprehending the suspected person to carry him before a magistrate ; but that, if no felony has been committed, the apprehension of a person suspected cannot be justified by anybody. His lordship, therefore, left it to the jury to consider whether any felony had been committed. The rule, however, was considered as inconvenient and narrow; because, if a man charges another with felony, and requires an officer to take him into custody, and carry him before a magis- trate, it would be most mischievous that the officer should be bound first to try, and at his peril, exercise his judgment on the truth of the charge. He that makes the charge should alone be answerable. The officer does his duty in carrying the accused before a magis- trate, who is authorized to examine, and commit or discharge. On this ground, a motion was made for a new trial, and, after cause shown, the court held that the charge was a sufficient justifi- cation to the constable and his assistants, and cited Ward's case, in Clayton 44, PI. 76, 2 Hale's Pleas of the Crown, 84, 89, 91, and 2 Hawkins, b. 2, ch. 12 and ch. 13. The Solicitor- General, for the plaintiff. Dunning, for the defendants. The rule made absolute. The new trial came on before Lord Mansfield, at the sittings after this term, when a verdict was found against Hall, and for the other two defendants. Lbdwith v. Catchpole. 1 May 19, 1783. Arrest by Officer — Reasonable Suspicion of Felony. Where a felony has actually been committed, a constable, or even a private person, acting bona fide, and in pursuit of the offender upon such information as amounts to a reasonable and probable ground of suspicion, may jifstify an arrest. This was an action of trespass and false imprisonment tried be- fore Lord Mansfield at Guildhall. The defendant, who was one of the marshalmen of the Lord Mayor of London, pleaded the general issue, upon which issue was joined. The jury found a verdict for the plaintiff with £20 damages. 1 Caldecott's Cases, 291. LEADING CRIMINAL CASES. 159 Arrest by Officer — Reasonable Suspicion of Felony. And now, upon motion for a new trial, Lord Mansfield reported the evidence to have been — that one Smith, who had lost some lin- ens to a large amount, brought one Stevens to the defendant ; that Stevens said that one Madox had called a coach and put Smith's bale of goods into it at a public house ; that the plaintiff put his head into the coach ; that afterwards the coach stopped at another house ; and that the plaintiff met it there ; that the defendant, sus- pecting the plaintiff to have been concerned in the theft, from»the circumstance of his having been twice so seen at the coach, took the defendant on a Sunday to the plaintiff, for the purpose of having him apprehended ; that, when they came to him, neither Smith nor any other person charged the plaintiff with a felony ; that Smith said : " I have lost some cloth ; but I don't say that it was he who stole it ; I know nothing of that ; but stolen it was ; " that defend- ant, being asked by plaintiff what authority he had to arrest him, produced a hanger, and said, " that was his authority ; " that he then did arrest the plaintiff, and took him to the Poultry Compter; from whence he was taken the next day before the sitting alderman, and discharged. Buller, J. This is a question of consequence, and will require some consideration. I think that, if we were to say that a constable is justifiable in this case, we should go the length of saying, that he is, to some purposes, a judicial officer ; which is going further than has ever yet been adjudged. See the case of The King v. The Inhabitants of Hope Mansel, Caldicott, 252, and The King v. Slubbs and others, E. 28 G. 3, 1788 ; 2 Durnford & East, 395. It would be to allow a constable to examine witnesses, act upon their testimony, though he cannot administer an oath, and judicially to conclude whether there is or is not a reasonable ground of suspicion ; and this might be attended with danger. Where a positive charge is made, the party making it is obliged to follow it up with a prose- cution, or is himself liable to an action. In such case, the constable is merely ministerial, and bound to take the party up and carry him before a magistrate. The magistrate must then examine into the matter upon oath, which the constable cannot do. , • # Willes, J. A felony is committed. The prisoner looked into the coach, where the stolen goods were deposited at the time, and afterwards met the coach, where it stopped. Then, called upon, as the constable was, to act, and under such strong circumstances of suspicion, I think it became his duty so to act; and that there ought to be a new trial. 160 LEADING CKIMINAL CASES. Arrest by Officer — Reasonable Suspicion of Felony. Lord Mansfield. The first question is, Whether a felony has been committed or not ? And then the fundamental distinction is, that, if a felony has actually been committed, a private person may, as well as a peace officer, arrest ; if not, the question always turns upon this : Was the arrest bond fide ; was the act done fairly, and in pursuit of an offender, or by design, or malice, and ill will? Upon a highway robbery being committed, an alarm spread and par- ticulars circulated, and in the case of crimes still more serious, upon notice given to all the seaports, it would be a terrible thing, if, under probable cause, an arrest could not be made ; and felons usu- ally are taken up upon descriptions in advertisements. Many an innocent man has and may be taken up upon such suspicion ; but the mischief and inconvenience to the public, in this point of view, is comparatively nothing. It is of great consequence to the police of the country. 1 think there should be a new trial. Per Lord Mansfie'ld and Willes, J. Rule absolute. The new trial came on at the sittings after this term, when a ver- dict was found for the defendant. We have already discussed, in the pre- ceding note, the right of a private citizen to arrest an offender for crime. We come now to the rights and duties of an officer in such cases. His right is very different from that of an individual. The officer may arrest any one upon a reason- able ground of suspicion that he*has com- mitted a felony ; and if that be proved, it is entirely immaterial whether a felony or any crime has, in fact, been committed by the party arrested, or by any person. The first enunciation of this doctrine is in the Year Books, 7 Henry 4, Hilary Term, pi. 35. Again, in Ward's case, in 1636, Clayton's Reports, 44, we find an- other recognition of the right of an officer to act upon the charge or accusation of a third p*erson; but Samuel v. Payne was the first distinct adjudication upon this important question of law; we have there- fore selected it for our first leading case. The main distinction between Samuel v. Payne and Ledwiih v. Catchpole, our second leading case, is, that in the former the party arrested was by a third person reported to the officer as guilty of a fel- ony, and the officer proceeded upon that charge alone, while in the latter there was no charge against the plaintiff -in particu- lar, but the officer acted upon his own suspicion that he was the true offender. But it is clear, that in either case, if the officer acts bond fide, and upon reasonable grounds, he is not guilty of a trespass. See Cowles v. Dunbar, 2 Carrington & Payne, 565. It was attempted by the plaintiff, in BecJcwith v. Philby, 6 Barnewall & Cress- well, 635, to make an essential distinction between the rights of an officer, whether he acts upon his own suspicion, or upon the charge and accusation of another. It was admitted that, in the latter case, it is his duty to make the arrest, and it is not incumbent upon him to prove the actual commission of a felony. But it was claimed, that if he assumed to act upon his own suspicion, he then placed himself in the situation of any private citizen, and could justify himself only on proof that a felony had been in fact committed. But any such distinction was entirely nega- tived by the court, and it was there broadly laid down that a constable having a reasonable cause to suspect that a felony LEADING CRIMINAL CASES. 161 Arrest by Officer — Reasonable Suspicion of Felony. has been committed, has authority to ar- rest the party suspected, although it after- wards appear that no felony had been committed. This is one of the best cases to be found on this subject. Numerous decisions fully sustain this principle in its entire extent. It is also extended to other peace officers, besides constables. Thus, in Lawrence v. Hedger, 3 Taunton, 14, it was held that watchmen and beadles may, at common law, arrest and detain without a warrant. To have said so, would have endangered the safety of so- ciety. The felon who is seen to commit murder or robbery, must be arrested on the spot or suffered to escape. So, al- though not seen, yet if known to have committed a felony, and pursued with or without a warrant, he may be arrested by any person. And even when there is only probable cause of suspicion, a private per- son may, without warrant, at his peril, make for examination, any person found walk- an arrest. I say at his peril, for nothing ing in the streets at night, whom there is reasonable ground to suspect of felony, although there is no proof of a felony having been committed. And Hdbbs v. Branscomb, 3 Campbell, 420, is to the same effect. The same general principles of the law of arrest have been repeatedly recognized in America. Rohan v. Sawin, 5 Cushing, 281 ; Eanes v. The State, 6 Humphreys, 53 ; Wakely v. Hart, 6 Binney, 316 ; Hol- ley v. Mix, 3 Wendell, 350. The Con- stitution of the United States declares " that the people shall be secure in their persons, houses, papers, and possessions, from unreasonable arrests ; and that no warrant to search any place or seize any person or thing, shall issue without de- scribing them as nearly as may be, nor without probable cause supported by. oath or affirmation." Sect. 7, art. 9. Similar short of proving the felony will justify the arrest. These are principles of the com- mon law essential to the welfare of soci- ety, and not intended to be altered or impaired by the constitution. The whole section, indeed, was nothing more than an affirmance of the common law, for general warrants have been decided to be illegal ; but as the practice of issuing them had been ancient, the abuses great, and the decisions against them only of modern date, the agitation occasioned by the dis- cussion of this important question had scarcely subsided, and it was thought pru- dent to enter a solemn veto against this powerful engine of despotism." This subject was discussed in Mayo v. Wilson, 1 New Hampshire, 54. A law of that State, of 1799, authorized selectmen forcibly to stop and detain any person suspected of travelling unnecessa- provisions exist in most of the State con- rily on the Lord's day. It was claimed stitutions. It has sometimes been claimed that this law was unconstitutional, since it that under these provisions no arrest is permitted arrests without a warrant sup- lawful in America, without a warrant ported by oath. But this position was not issued on probable cause, supported by sustained ; and Chief Justice Richardson oath. But this doctrine was repudiated thus assigned the reasons for such de- by the Supreme Court of Pennsylvania, cision : — in Wakely v. Hart, 6 Binney, 318. Tilgh- " By the 15th article of the Bill of Rights man, C. J., there said : " The provisions prefixed to the constitution of this State, of this section, so far as concern warrants, it is declared that ' no subject shall be only guard against their abuse by issuing arrested, imprisoned, despoiled, or de- them without good cause, or in so general prived of his property, immunities, or and vague a form, as may put it in the privileges, put out of the protection of the power of the officers who execute them, law, exiled, or deprived of his life, liberty, to harass innocent persons under pretence or estate, but by the judgment of his of suspicion ; for, if general warrants are peers, or the law of the land.' By the allowed, it must be left to the discretion 19th article of the same Bill of Eights, it of the officer, on what persons or things is declared, 'that every subject hath a they are to be executed. But it is no- right to be secure from all unreasonable where said that there shall be no arrest searches and seizures of his person, his 14* 162 LEADING CRIMINAL CASES. Arrest by Officer — Seasonable Suspicion of Felony. bouses, bis papers, and all his possessions. Therefore, all warrants to search sus- pected places, or arrest a person for ex- amination or trial, in prosecutions, for criminal matters, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation.' Coke says, the words. 'per legem terrce,' in Magna Charta, and the words ' due process of law,' in the statute of 37 Edward 3, ch. 8, mean the same thing. 2 Institute, 50. And we have no doubt that the phrase, by the law of the land, in our constitution, means the same thing as by due process of law. " The question then is, what are we to understand by due process of law ? There is a sound and safe rule for the construction of statutes, which, it is be- lieved, will enable us to determine with great certainty the true meaning of these clauses in the constitution, and that is, if a statute makes use of a word, the mean- ing of which is well known at common law, the word shall be understood in the statute in the same sense it was under- stood at common law. Smith v. Herman, 6 Modern, 142 ; Bacon's Abridgement, stat. 1, $ 4. The clause in our constitu- tion, now under consideration, happens to be a literal translation from Magna Charta, ch. 29 ; 2 Coke's Institutes, 45. ' Nullus liber homo capiatur vel imprisone- lur nisi per legem lerrce.' The phrase, 'per legem terra,' in Magna Charta, has a meaning as fixed and as well determined as any phrase known in the common law. The makers of the constitution, having adopted a phrase from Magna Charta, the meaning of which, in that instrument, was so well known, must be intended to have used it in the same sense in which it has always been understood to have been used there. Sullivan, in his Lectures, 402, has a commentary on this part of Magna Charta. He .says, that process of law, for the purpose of an arrest, is two- fold, either by the king's writ, or by what is called a warrant in law. He then says, that a warrant in law is again twofold, ■viz. 1. A warrant in deed by authority of a legal magistrate, or, 2. That which each private person is invested with and may exercise. He then enumerates the cases whert the law warrants a private person to arrest and imprison another. 1. If a man is present when another com- mits treason, felony, or notorious breach of the peace, he has a right instantly to arrest and commit him, lest he should escape. 2. If an affray be made to the breach of the peace, any present may, during the continuance of the affray, by warrant in law, restrain any of the offend- ers ; but if the affray be over there must be an express warrant. 3. If one man dangerously wound another, any person may arrest him, that he be safely kept, till it be known whether the person shall die or not. 4. Suspicion, also, when it is violent and strong, is, in many cases, a good cause of imprisonment ; but he who arrests upon suspicion must take care that his cause of suspicion be such as will bear the test, for otherwise he may be punish- able for false imprisonment. 5. A watch- man may arrest a night-walker at unsea- sonable hours, by the common law. But with respect to persons arrested by pri- vate authority, there must be an informa- tion on oath before a magistrate, and a commitment thereon in a reasonable time, which is esteemed twenty-four hours, otherwise the person is to be no longer detained. Coke, in his commentary upon Magna Charta, gives the same explana- tion. 2 Institute, 52. See, also, 2 Haw- kins, P. C. 115 ; Comyns's Digest, Impris- onment, H. 4 ; 2 Rolle, 559. It seems clear that an arrest, if authorized by the statute or common law, though without writ or warrant in deed, has always been considered in England as warranted per legem terra, by due process of law, within the meaning of Magna Charta, and we have no doubt that any arrest here au- thorized by our common or statute law must be considered an arrest by the law of the land, by due process, within the meaning of our constitution. We think that the 15th article in our Bill of Eights was not intended to abridge the power of the legislature, but to assert the right of every citizen to be secure from all arrests not warranted by law." The attempt has sometimes been made LEADING CRIMINAL CASES. 163 Arrest by Officer — Reasonable Suspicion of Felony. to ingraft a limitation to the power of an officer to arrest, as before stated, and to allow him to arrest only when there is rea- son to suspect that the party accused would otherwise escape. This position was first advanced by Sergeant Russell, in Davis v. Russell, 5 Bingham, 359. It would be of serious consequence, said he, to the liberty of the subject, and the peace and comfort of society, if a constable is to be empowered to arrest on his own suspicions and judg- ment, where he has no reason to fear an escape, and may with propriety lay *e case first before a magistrate. If such a proceeding were allowable, the most re- spectable individuals, even judges them- selves, might, upon the unfounded asser- tions of any unprincipled persons, be draped from their beds to a prison. But this limitation was not sanctioned by the court. The same effort was made in this country, in Rohan v. Sawin, 5 Cushing, 281 , but with the like want of success. The judge below sanctioned this doctrine, and ruled in accordance with it, but this was reversed on exceptions. "We do not find," said the court, " any authority for thus restricting a constable in the exercise of his authority to arrest for a felony with- out a warrant. The probability of an es- cape, or not, if the party is not forthwith arrested, ought to have its proper effect upon the mmd of the officer, in deciding whether he will arrest without a warrant ; but it is not a matter upon which a jury is to pass in deciding upon the right of the officer to arrest. The question of reason- able necessity for an immediate arrest, in order to prevent the escape of the party charged with felony, is one the officer must act upon, under his official responsibility, and not a question to be reviewed else- where." But to justify an officer in arresting without a warrant on suspicion of guilt of any crime, the crime supposed to have been committed must amount in law to a technical felony. Rex v. Thompson, 1 Moody, C. C. 80. And if the officer arrest upon the charge or accusation of another, that charge or accusation must amount in fact to a charge of felony. Rex v. Curvan, 1 Moody, C. C. 132; Boioditch v. Balchin, 5 Exchequer, 378; Commonwealth v. Carey, 14 Bos- ton Law Reporter, August, 1851, p. 161, Supreme Judicial Court of Massachusetts ; although it need not in terms specify all the particulars necessary to constitute a full and formal definition of a felony. Id. Rex v. Ford, Russell & Ryan, C. C. 329- Here the accusation was that the prisoner had a forged note in his possession. That itself is no crime, but all the judges held that this charge should be considered as im- puting a guilty possession ; and the arrest on such charge was therefore adjudged legal. This subject was much considered in Carey's case, supra, and the same prin- ciples recognized. Chief Justice Shaw there said : " Nor is it necessary when a third person makes a complaint to a peace officer against a person, and gives him in charge to the officer, that the accusation should in terms technically import a felony ; but when the language in its popular sense would import such charge, it is sufficient ; as where one said to a peace officer, I wish you to take such a person in charge for having in his possession counterfeit bills, the natural import is, that he intends to charge the party accused with having in his possession counterfeit bills, knowing them to be counterfeit, and with an intent to pass the same, without which incidents such possession would be innocent, and import no criminal charge at all." For a past affray, therefore, or breach of the peace, being but a misdemeanor, it is clear an officer has no right to arrest without a warrant. Coupey v. Henley, 2 Espinasse, 539; Sharrock v. Hannemer, Croke, Elizabeth, 375. See also Rex v. Bright, 4 Carrington & Payne, 387 ; Regina v. Walker, 25 Eng. Law and Eq. R. 589 ; unless the arrest is made within a reason- able time afterwards. See Derecourt v. Corbishley, 32 Eng. Law and Eq. R. ; Tay- lor v. Strong, 3 Wendell, 384. And in this case the constable made the arrest after he had made complaint on oath be- fore a justice, and while the justice was making out the warrant against the pris- oner. It does not distinctly appear how long after the discontinuance of the affray the arrest was made, but the court said : 164 LEADING CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. " There is room for doubt in this case whether the constable had not delayed too long ; but we cannot say that he was not justified, under the circumstances, in mak- ing the arrest." An arrest two hours after an assault has been held illegal. Regina v. Walker, supra. So in Cook v. Nether- cote, 6 Carrington & Payne, 741, it was held, that to justify an arrest for an affray, the affray must have been in view of the constable, and the arrest during its con- tinuance. That such an arrest is justifi- able, without a warrant, is abundantly clear. Knot v. Gray, 1 Root, .66; City Council v. Payne, 2 Nott & McCord, 475 ; United States v. Hart, 1 Peters, C. G. 390. And all who are aiding and abetting in a breach of the peace may be arrested ; as if one stand in the officer's way to hinder him from preventing an affray ; Levy v. Edwards, 1 Carrington & Payne, 40 ; or encourages a person arrested to resist the officer; White v. Edmunds, Peake, 89. But loud talking in the streets merely will not justify an arrest. Hardy v. Murphy, 1 Espinasse, 294. Nor conversing with a notorious thief in the street. Stocken v. Carter, i Carrington & Payne, 477. Nor turning to the wall on a " particular occa- sion." Booth v. Hanky, 2 Carrington & Payne, 288. Nor cruelty to animals. Hop- kins v. Crowe, 1 Carrington & Payne, 373. In conclusion, the principles contained in the foregoing note may be briefly stated thus : — 1st. A constable or other peace officer has a right at common law, to arrest with- out a warrant any one whom he suspects guilty of felony, whether he acts upon his own knowledge, or upon facts communi- cated by others. 2d. He may arrest for an affray, or other breach of the peace, if the same be done during its continuance, or imme- diately afterwards. The right of arrest with a warrant, and the liabilities for not strictly pursuing the directions of the warrant, are discussed in the next note. E. H. B. The State v. Weed. 1 July Term, 1850. Arrest by Officer — Voidable Warrant — Justification. A void process affords no protection to the officer serving or attempting to serve the same. Process may be void as to the parties, but voidable only as to the.officer. Where a process or warrant is regular and legal in its frame, bearing upon its face all the legal requisites to make it perfect, both in form and substance ; and it appears to have been issued by a court or magistrate having jurisdiction of the subject-matter, and of the person of the respondent, the officer will be protected in its service, notwithstanding any error or irregularity in the previous issuing of the same, or any imposition practised upon the court in obtaining it. In the service of criminal process, an officer is not to bo influenced or governed by the pur- poses, designs, or objects of complainants, but by his precept ; and if the process be regular and legal upon its face, and within the jurisdiction of the magistrate to issue, the officer will be protected in its service, although the complainant had illegal designs in causing it to be issued, and although the officer knew that the warrant had been procured by the complainant to accomplish improper and illegal objects. I 1 Foster, (New Hampshire,') 262. LEADING CRIMINAL CASES. 165 Arrest by Officer — Voidable Warrant — Justification. An officer will be protected in the service of process, regular and legal upon its face, and, within the jurisdiction of the magistrate to issue, although the foundation of the complaint on which the warrant issued be false and groundless. He is not to look beyond his precept. A person resisting an officer in the service of such process is liable to indictment. Indictment for assaulting and obstructing Enoch Remick, a deputy- sheriff, in the service of a warrant against said Weed, on a complaint made by one Nancy Pulsifer, for assault and battery. It appeared, on the trial, that the complaint and warrant were in due and regular form, and fair upon the face ; the complaint being signed by said complainant, and the certificate of the oath by W. A. Kimball, Esq., a justice of the peace of the county of Carroll ; the warrant also being signed by him ; and that they were put into the hands of said Remick, with directions for him to serve the warrant. The facts, however, in regard to the making of the complaint and warrant, were as follows : The said Nancy Pulsifer, and a friend with her, went to said Kimball to have the complaint and warrant made out. Kimball made out the complaint and warrant at his office, and signed his name to the certificate of the oath, and also to the warrant, and went to his house, where the said Nancy was, intending to have her sign the complaint there, and to administer the oath to her; but it was afterwards determined to have the warrant returned before some other one, and Kimball gave it to said Nancy, and sent her to Samuel S. Quimby, Esq., another magistrate, with directions to have Kimball's name erased from the papers, and for Quimby to administer the oath, and sign them. She signed her name to the complaint in the presence of Quimby, and Quimby administered to her the oath, but he did not erase Kimball's name from the papers, or affix his own. Remick knewnothing about the facts in regard to the manner in which the complaint and warrant had been made out, but when put into his hands they appeared to be duly executed. It further appeared, that when Remick went to arrest Weed, Weed drew a pistol and* fired it, and struck Remick over the head with a stick or club, cutting through his hat, and inflicting a somewhat severe blow upon his head. The respondent contended that he was justified in doing what he did, and offered to introduce "evidence tending to show that Remick knew that the complaint and warrant against said Weed were to be used for the purpose of enabling Nancy Pulsifer and others to get the wife of said Weed's father out of the possession of her husband, and not for the i purpose of arresting and punishing said Weed." But the court ruled the evidence inadmissible as a defence to this prosecution. The respondent further proposed to introduce evidence that the foun- dation of the complaint on which the warrant was issued was false 166 LEADING CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. and groundless ; but the court ruled it inadmissible. The respondent's counsel requested the court to instruct the jury that said warrant was not a legal one ; " that, if the complaint was not under oath adminis- tered by the magistrate who signed the warrant, it was not a lawful warrant;" "that the warrant, being issued on the complaint against the respondent, not being under the oath of the complainant by the magistrate, is contrary to the 19th article of the Bill of Rights, and therefore illegal." The court declined so to instruct the jury, but did instruct them, that if, when the warrant came into Remick's hands, the complaint was duly signed by said complainant, and the certifi- cate of the oath purporting to be administered to her, and the war- rant, were also duly signed by said Kimball, and the papers were all fair and legal upon the face, it was sufficient. There was some evidence tending to show that Weed did not know that Remick had a warrant against him, and was seeking to arrest him. There was also evidence tending to show that he did know it, and was told by Remick himself, before he attempted to arrest him, that he had the complaint and warrant, with orders to arrest him. On this point, the court instructed the jury that if they found that Weed did not know that Remick had a warrant, and was seeking to arrest him, then he was not guilty ; but if they found that he did, then the point was made out. To the several rulings and in- structions of the court the respondent's counsel excepted. A verdict having been returned against the prisoner, he moved to set the same aside, and for a new trial, for supposed error in the de- cisions of the court, and the questions arising upon said motion were reserved and assigned to this court for their determination. Sullivan, (attorney-general,) for the State. ? 1st Objection. The process by virtue of which Remick attempted to arrest the respondent was illegal. Our answer is, that, "If one resist an officer in the execution of a process issued by a court having jurisdiction of tBe subject-matter, and if the process is regular on the face of it, the person so resisting is liable." Roscoe's Criminal Evidence, 620, 621 ; 5 Wend. 170 ; 16 Wend. 514; Id. 562; 4 Mass. 232; 6 Mass. 422; 13 Mass. 2S6 ; Id. 272 ; 18 Mass. 459 ; 10 Johns. 138 ; 12 Johns. 259 ; 1 East's Crown Law, 309. 2d Objection. The foundation of the complaint on which the warrant was issued, was false and groundless. Our answer is, that, " In all kinds of process, both civil and crim- inal, the falsity of the charge contained in such process, that is, the injustice of the demand in one case, or the party's innocence in the other, will afford no matter of alleviation for killing the officer; for LEADING CRIMINAL CASES. 167 Arrest by Officer — Voidable Warrant — Justification. every man is bound to submit himself to the regular course of jus- tice." Roscoe's Criminal Evidence, 621; 1 East's P. C. 310 ; Hale's P. C. 457. " It is not necessary that a public officer should notify himself to be such, by express words, but it shall be presumed that the offender knew him to be such." 1 Hale's P. C. 461 ; Wharton's Criminal Law, 318. Another objection is, that evidence was rejected tending to show that Remick knew that the complaint and warrant against Weed were to be used for the purpose of enabling Nancy Pulsifer and others to get the wife of Weed's father out of the possession of her husband, and not for the purpose of arresting and punishing said Weed. The objection was not that he did, or aided in doing, an illegal act, but merely that the evidence rejected tended to show that he knew that the process was intended to enable Nancy Pulsifer and another to get the wife of respondent's father out of her husband's possession. How- ever unjustifiable might have been the objects of the complainant, the officer was bound to execute the warrant of the magistrate, and was liable if he failed to do it. Even if the officer had conspired with others (which is not pretended) to use the process for an illegal pur- pose, still the evidence was properly rejected. It could be no defence for obstructing the officer. " Officers are punishable for corruption, or for oppressive proceedings, either by indictment, attachment, or action at the suit of the party injured." Bacon's Ab. tit. Office and Officers, N. ; 6 Mod. Rep. 96. A citizen is bound to submit to process ; and it is not left to his decision whether the process is procured for an illegal purpose, or whether the justice acted fraudulently. Roscoe's Criminal Evidence, 621 ; East's P. C. 310 ; 1 Hale's P. C. 457. Emerson, (with whom was J. Eastman,) for the respondent. L. The process by which Remick attempted to arrest Weed was illegal and void. 1. An arrest is illegal whenever process is void ; when the court issuing it has no jurisdiction, or exceeds its jurisdiction. 1 U. S. Digest, 235, referring to Tracey v. Williams, 4 Conn. 107; State v. Leach, 7 Conn. 456 ; 1 Chitty's Crim. Law, 61 ; State v. Curtis, 1 Hayw. (N. C.) Rep. 471. 2. Justice Kimball had no jurisdiction to issue a warrant unless supported by oath or affirmation. 19th art. Bill of Rights; 1 East's Crown Law, 309, § 77, citing Simpson's case, 4 Inst. 333; Holt's opinion in Tooleg's case, Foster's Crown Law, 313. 3. The warrant was signed and sealed by Justice Kimball before the complaint was signed or sworn to, and, consequently, before com- plaint was made, and, therefore, an arrest by Remick would be illegal. LEADING CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. 1 East's Crown Law, 312, citing 6 Term Rep. 122. Also see 19th art. Bill of Rights. 4. It was a blank warrant ; which, says East, "is highly reprehen- sible. It withdraws from the ministers of justice that protection which the law, when properly executed, was meant to afford them, and thereby holds out a temptation for future resistance." 1 East's Crown Law, 311, citing R. Stokely, 1772, Foster's MSS.; Stat. 24 Geo. 2, ch. 44, § 6, (cited by the attorney-general, as from 1 East's Crown Law, 309,) was never adopted in this State, but a practice directly opposed to it, as will appear from authorities hereafter cited. And none of his cases from the Massachusetts Reports sustain his position, unless it be 13 Mass. 286, which is unsustained by authori- ties, and is the dictum of a judge only, and opposed by the Massachu- setts cases generally, and by New Hampshire practice and authorities. II. A person may resist an unlawful' taking without legal cause. In rescous of cattle distrained, the defendant may defend by showing distress without legal cause. Melody v. Reab, 4 Mass. 474. And an owner of goods may resist an officer attempting to seize them under a writ against a third person. Commonwealth v. Kennard, 8 Pick. 133 ; Nichols v. Thomas, 4 Mass. 234 ; Buller's N. P. 172 ; Richard- ' son.v. Duncan, 3 N. H. Rep. 511 ; Shaw v. Spooner, 9 N. H. Rep. 199 ; 2 U. S. Digest, 54, citing 1 Porter, 222. III. Respondent may resist against a lawful process used for an illegal purpose ; and the evidence as to the purpose of Remick's arrest was wrongly excluded. Buller's N. P. 172, citing 5 Coke, 119 ; Alleyn, 92. 1. It is illegal abuse to use the criminal process of the State to ex- tort money or compel the payment of debts. Shaw v. Spooner, 9 N. H. Rep. 199 ; Plumer v. Smith, 6 N. H. Rep. 553 ; Hinds v. Chamber- lain, 6 N. II. Rep. 230. Surely, then, it is illegal to use the criminal process of the State to commit crime. 2. " It is well settled," says Richardson, C. J., " that when there is an arrest for improper purposes without a just cause, or when an arrest for a just cause without lawful authority, or when there is an arrest for a just cause and under lawful authority for an unlawful purpose, it must be considered duress. Richardson v. Duncan, 3 N. H. Rep. 511 ; Buller's N. P. 172 ; Watkins v. Bard, 6 Mass. 508. IV. " Duress of imprisonment and duress per minas is a sufficient excuse for many misdemeanors, and pardons homicide se defen- dendo." 1 Black. Com. 132, 133. It is an illegal restraint of liberty. 1 Black. Com. 139. Every illegal restraint of a person's liberty is duress of imprisonment; and when a warrant has been regularly ob- tained, but on a false or feigned pretence, to cover an illegal design, arrest under it will be duress of imprisonment, and any act produced by it will be void. 2 U. S. Digest, 54. LEADING CRIMINAL CASES. 169 Arrest by Officer — Voidable Warrant — Justification. V. If Remick knew the process was for the purpose of effecting an illegal object or design, in attempting to execute it he aided or assisted therein, and was guilty of the conspiracy. Therefore, the evidence as to the falsity of the charge, and the object of the process, with Remick's knowledge, was wrongly excluded. VI. Quimby's testimony was wrongly admitted. Nothing short of the magistrate's certificate is evidence of the oath of the party to the instrument. 1 Tyler's Rep. 444. Eastman, J. It is well settled, that all acts done under void pro- cess are illegal ; and that a void warrant affords no protection to the officer serving or attempting to serve the same. Such is the general current of all the authorities; and* they appear to be based upon sound and fixed principles. The meaning of the term " void," when applied to legal process, is, therefore, material to be considered. A process may be void, so far as the parties originating and issuing the same are concerned, while at the same time it may be a good precept for the officer serving it. A complainant and magistrate may both be liable for the issuing of a warrant erroneously and irregularly, without cause and without jurisdiction ; while the officer, into whose hands it is committed, finding it regular and legal upon its face, is not only protected in its service, but bound to obey it. As connected with the magistrate and party, it is a void warrant in toto, but in the hands of the officer, voidable only. The want of a clear distinction in this re- spect, has occasionally led to some confusion ; but when this distinc- tion is kept in view, there is no difficulty in arriving at correct results. A process is void as to all connected with it when upon its face it wants essential legal form and substance. A seal, for instance, being one of the legal requisites to give vitality to a process, is essentia^ and its absence renders the precept absolutely void. Stale v. Cur- tis, 1 Hayw. (N. C.) Rep. 471. If a warrant is issued upon a charge purporting to be based upon a certain law, and that law has been repealed or never had an existence, the warrant is void. In such a case, the process shows upon its face that it is a nullity. Or if the warrant describes no offence, or sets forth no person to be arrested, but, in attempting to do it, is general and unintelligible, in one or both respects ; or if it is issued for an offence not within the jurisdiction of the magistrate to try, or to arrest a person over whom he has no legal authority, and these facts appear upon the papers, they are void. Or if an officer undertakes to serve a process not within his precinct, his acts are all void. 1 Chitty's Crim. Law, 61 ; 1 East's Crown Law, 309 ; Grumon v. Raymond, 1 Conn. 40 ; Tracey v. Williams, 4 Conn. 107 ; State v. Leach,' 7 Conn. 456 ; Nichols v. Thomas, 4 Mass. 232. Such are some of the instances o£ precepts absolutely void. In all 15 170 LEADING CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. such cases the process shows upon its face its illegality; and the officer will not be protected, because he is acting by virtue of papers which, it is apparent from their inspection, have no legal vitality. But where the magistrate exceeds his jurisdiction, or the warrant has been irregularly or erroneously issued by him, or the party has procured it through fraud and without any cause, the magistrate, or party, or both may become liable, and the warrant may be no protection to them. It may be a void precept so far as they are concerned, but if fair and legal upon its face, voidable only, so far as the officer is to be affected. In a recent case in the Queen's Bench, Andrews v. Marris, 1 Ad. & Ellis, New Rep. 4, 17, it is said, that there is a well-known distinction between the cases of the party, and of the sheriff or officer. For the latter, it is enough to show the writ only. This distinction is recognized in all the well-considered cases to be found in the books ; and it is upon this basis that the doctrine of protection to officers in the service of legal process, has been so broadly laid down. How far this doctrine is held to go by many of the writers on criminal law, and to what extent this protection has been carried by some of the most learned tribunals, we will, for a few moments, consider. East lays down the doctrine, as follows: " If the warrant be legal in the frame of it, and issue in the ordinary course of justice from a court, or person having jurisdiction in the case, it is sufficient. No error or irregularity in the previous proceedings will affect it; or excuse the party killing the officer in the execution of it from the guilt of mur- der." 1 East's P. C. 309, § 78. Foster, Russell, and Roscoe, and, so far as we have been able to discover, all elementary writers upon Miriminal law, take the same view of the matter. Foster, in his .Crown Tjaw, page 312, holds the following language : " In case of a war- rant from a justice of the peace, in a matter wherein he hath juris- diction, the person executing such warrant is under the special pro- tection of the law, though such warrant may have been obtained by gross imposition upon the magistrate, and'by false information touch- ing matters suggested in it." Mr. Roscoe, in his Criminal Evidence, pages 750, 751, third edition, states it in this wise : " Where a peace officer, or other person having the execution of process, cannot justify without a reliance on such process, it must appear that it is legal. But by this it is only to be understood that the process, whether by writ or warrant, be not defective in the frame of it, and issue in the ordinary course of justice, from a court or magistrate having jurisdic- tion in the case. Though there may have been error or irregularity in the proceedings previous to the issuing of the process, yet, if the sheriff or other minister of justice be killed in the execution of it, it will be murder ; for the officer to whom it is directed must, at his peril, pay obedience to it." So irr»case of a warrant obtained from a LEADING CRIMINAL CASES. 171 Arrest by Officer — Voidable "Warrant — Justification. magistrate by gross imposition, and false representations touching the matters suggested in it." " So, though the warrant itself be not in strictness lawful, as if it express not the cause particularly enough, yet, if the matter be within the jurisdiction of the party granting the warrant, the killing the officer in the execution of his duty, is murder, for he cannot dispute the validity of the warrant if it be under the seal of the justice." East adds, further, that "in case of an indict- ment for such a murder, it is only necessary to produce the writ or warrant ; for however erroneously the process issued, the sheriff must obey, and is justified by it. The sheriff and his bailiffs are bound to obey the king's writs, without inquiry." Cotes v. Michill, 3 Levinz's Rep. 20 ; Moravia v. Sloper, Willes's Rep. 30, 34. Mr. Chitty, also, lays down the same general principles as the other elementary writers above quoted. 1 Chitty's Criminal Pleading, 40. The American doctrine upon the subject is equally decisive. In Warner v. Shed, 10 Johns. 138, it is said, that where the court has jurisdiction of the subject-matter, it is sufficient to justify the officer executing the process; for the officer "is not bound to examine into the validity of its proceedings, or the regularity of its process. In 16 Wendell, 514, it is held, that a ministerial officer is protected in the execution -of process issued by a court or officer, having jurisdiction of the subject-matter and of the process, if it be regular on its face, and does not disclose a want of jurisdiction. Process, regular upon its face, is sufficient to protect a ministerial officer acting under it, although it may have been issued without authority. Noble 8f al. v. Holmes, 5 Hill's (N. Y.) Rep. 194. If the process be regular and legal upon its face, the officer will be protected, though it be issued upon a judgment rendered without jurisdiction. 7 Hill's (N. Y.) Rep. 35. When a writ from a court of competent jurisdiction is placed in the hands of an officer, he is bound to execute it, without inquiry into the regularity of the proceedings on which it is grounded. Cody v. Quinn, 6 Iredell's (N. C.) Rep. 191. A sheriff cannot excuse himself from the service of process because it is erroneous or irregu- lar, but only when it is absolutely void. Stoddard v. Tarbell, 20 Verm. Rep. 321. Some of the cases go very far, quite as far as we should be willing to ; especially that class which would compel an officer to execute voidable process. The general principle, however, we hold to be quite clear. That where the process or warrant is reg- ular and legal in its frame, bearing upon its face all the legal requi- sites to make it perfect in form, and, so far as can be discovered from its inspection, in substance also, and it appears to have been issued by a court or magistrate having jurisdiction of the subject-matter, and of the person of the respondent, the officer is to be protected in the service, notwithstanding any error or irregularity in the previous issu- 172 LEADING CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. ing of the same, or any imposition practised upon the court in obtain- ing it ; and that the party resisting the officer is liable. Savacoo'l v. Boughton, 5 "Wend. 170; Rogers v. Mulliner, 6 Wend. 597 ; Horton v. Hendershot, 1 Hill's (N. Y.) Rep. 118 ; Fox v. Wood, 1 Rawle, 143 ; Jones v. Hughes, 5 Serg. & Rawle, 299 ; Paul v. Van Kirk, 6 Binn. Rep. 103 ; Sturbridge v. Winslow, 21 Pick. 83 ; Harman v. Gould, 1 "Wright's Rep. 709; Brother v. Cannon, 1 Scam. 200; Robinson v. Harlan, 1 Scam. 237; The State v. Curtis,! Hayw. (N..C.) Rep. 471 ; Foster v. Gault, 2 McMullan's (S. C.) Rep. 335. The authorities cited by the respondent's counsel have all been ex- amined, and when investigated at length as they appear in the books to which reference is made, they show no material conflict with the general doctrine above laid down, but rather sustain it. Tracey v. Williams, was an action of trespass against a justice of the peace for imprisoning the plaintiff, who had been arrested by the justice under the riot act, on view, and committed after having been ordered to find sureties to appear at a higher tribunal. The court held, that the magistrate exceeded his power ; that he might arrest on view, but could not examine and commit without regular complaint made. The State v. Leach, was an information for' prison breach. The defend- ant had been committed upon a charge based upon a statute which was repealed before the acts complained of were done by him. There was no law in force when the acts were committed making those acts a crime. After being committed on such a warrant he broke jail, and this information was filed against him. It was held, that, being im- prisoned for an offence which was unknown to the law, he might law- fully liberate himself, using no more force than was necessary to ac- complish the object: The court say: " The statute creating the offence with which the prisoner was charged and for which he was com- mitted, was repealed before the acts alleged to be a crime were done. Consequently, all the proceedings were void." This appearing upon the mittimus or warrant, disclosed the illegality of the proceedings, and showed them to be Void. The State v. Curtis, was where the warrant was withoutseal, and the court very correctly held the process void. But in the same case the court also say, that if a justice of the peace issue a'Varrant for a matter within his jurisdiction, although he may have acted erroneously in the previous stages, the officer should exe- cute it. The case from 1 East's Crown Law, 309, Simpson's case, was where the constable undertook to serve a warrant issued by a court that had no jurisdiction of the subject-matter, and that appeared. The case from Foster, Tooley's case, was where the constable was endeavoring to serve process out of his precinct. He had no more authority out of his precinct than a private individual. He was no constable. So says the note to the case. Houson v. Barrow, 6 Term LEADING CRIMINAL CASES. 173 Arrest by Officer — Voidable Warrant — Justification. Rep. 122, cited in 1 East, 312, was a motion to discharge from arrest, on the ground of irregularity ; the sheriff's name having been inserted in the writ after it was issued. It was held that the practice was irregular, and the motion was granted. The practice of issuing blank warrants, which is reprobated by East, has no parallel in the practice of the courts of this State, except in civil cases. The practice was this : The under-sheriff signed blank warrants under the seal of the office, and gave them to a clerk to fill up as occasion might require, and they were made out by the clerk to the persons' calling for them, accordingly ; and the persons to whom they were delivered put in the names of whom they pleased. We entirely concur with Mr. East, that the practice ought to be censured in severe terms. The remarks of the court in regard to blank warrants upon which East predicates his suggestions were made in Stokely's case, in 1771. Subsequently, in 1800, the case of Rex v. Winwiclc, 8 Term Rep. 454, arose. Here the magistrate kept by him a number of blank warrants ready signed. On being applied to, he filled up one of them arrd delivered it to the officer, who, in endeavoring to arrest the party, was killed. It was held, that this was murder in the person killing the officer, and he was accordingly executed. Let us now recur to the facts disclosed in the first point of the case, to which this law applies. It appears that the warrant which Remick was directed to serve, and in the service of which he was resisted by the respondent, Weed, was based upon a complaint for assault and battery. The complaint and warrant were both in due and legal form ; the complaint being signed by the complainant, and the certificate of the oath and the warrant both duly signed by Kimball, a magistrate of the county. Nothing is defective in form, and all is regular and legal upon its face. The warrant has all the legal requisites of our statute ; it is issued for an offence clearly within the jurisdiction of the magistrate, and he is acting within the limits of his county. So far then as appeared upon its face, it was a legal precept, which would protect an officer in its execution. But, it was irregularly issued. The acts of Kimball and Quimby were irregular and illegal. And although we do not question that both intended to act honestly, yet it is quite clear that they acted incon- siderately and illegally. But are their irregular acts to deprive the officer of his legal protection ? It is said in the argument, that " Quimby's testimony was wrongly admitted ; that nothing short of the magistrate's certificate is evidence of the oath of the party to the instrument." This point is not raised by the case, and therefore could not properly be considered here. But if considered, we appre- hend it could not aid the respondent. If Quimby was wrongly ad- mitted as a witness to show facts behind the warrant, then also was 15* 174 LEADING CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. Kimball. The testimony of both, if admissible at all, went to invali- date a warrant fair and legal on its face, and so far as it appeared, affording ample protection to the officer. Their testimony laid the very foundation ef the defence, and without it the respondent could not have raised this first important point in the case. Every thing touching the manner of the issuing of the complaint and warrant would have been unknown. It does not then lie in the respondent's power, first to obtain facts on which to base his defence, and then object to the channels through which alone those facts come. If the sources of the information are to be excluded, the information itself coming from them must necessarily share the same fate. But to return to the question, shall the irregular acts of the magis- trate deprive the officer of his legal protection in the service of the warrant ? If so, then the warrant was void in his hands ; he can claim no protection from it, and this indictment cannot be sustained. From the most careful and extended examination which we have been able to give this point in the case, we have, no hesitancy in hold- ing, that this warrant comes clearly within the principles which we have endeavored to discuss in the preceding pages of this opinion, and for which the authorities seem to be so full and explicit ; and that it was a complete and ample protection to the officer. As affect- ing Kimball and Quimby and the complainant, it was irregular and void ; but as far as Remick was to be affected, voidable only. In the examination of this point we have gone upon the assumption, that the proceedings of the magistrate and party, prior to the issuing of the warrant, may all be inquired into, notwithstanding the process when delivered to the officer is in due and regular form and within the juris- diction of the justice to issue. According to the distinction which we have taken between void and voidable process, and the liabilities of the parties in the issuing and executing of the same, in an action against the'justice or party for irregularity or corruption, these investigations could be made ; but in any proceeding between the officer and the re- spondent, it may well be questioned whether the court will go behind the warrant, if it be fair and regular in its frame and within the jurisdic- tion of the justice to issue. Many of the authorities above quoted, lay it down distinctly, that the production of the warrant or writ is all that is required by the officer, and that the prior proceedings cannot be investigated; that upon an indictment for killing the officer while attempting to serve a process, it is sufficient to produce the writ or warrant by virtue of which the officer was acting. Roscoe's Crim. Ev. (3d ed.) 750, 751 ; 1 East's P. C. 370, § 78. But as to this mat- ter, it is not necessary to make any decision, although it would seem there can be but little doubt in regard to it ; since we hold, that the warrant, being fair and legal upon its face, was good and sufficient for LEADING CRIMINAL CASES. 175 Arrest by Officer — Voidable Warrant — Justification. the officer, and afforded him ample protection, notwithstanding the irregular and erroneous proceedings of the magistrates. The second question raised in the case is, whether " the evidence tending to show that Remick knew that the complaint and warrant were to be used for the purpose of enabling Nancy Pulsifer and others to get the wife of said Weed's father out of the possession of her husband, and not for the purpose of arresting and punishing said Weed," was properly rejected or not. With regard to this point, the respondent's counsel has taken several positions. His first is, that* a person may resist an unlawful taking without legal cause ; and that in rescous of cattle distrained, the defendant may defend by show- ing a distress without a legal cause. To sustain this position he cites Melody v. Reab, 4 Mass. 474. An examination of this case shows that it was an action brought to recover the penalty pro- vided by statute for rescue of cattle distrained, and the court decided that, by the common law, the illegality of the distress might be shown in defence of an action for rescue ; but by this statute it was provided that such a defence should not be set up. It will readily be perceived, that there is a marked difference between an illegal distress of cattle by a party, and the doings of an officer under legal process. His second position is, that an owner of goods may resist an officer attempting to seize them under writ against a third person. 'Several authorities are cited to sustain this position. But there Avas no neces- sity for this. The accuracy of this doctrine, we are not disposed at this time to question. If a sheriff has a writ against A., and by vir- tue of it undertakes to seize the property of B., B. may resist. Tke sheriff has no right to take his property. Were the suit against B., it would present an entirely different question, and one of equally easy solution. His third position is, that a respondent may resist against a lawful process used for an illegal purpose ; and the evidence as to the pur- pose of Weed's arrest was wrongly excluded. To sustain this posi- tion he cites Buller's N. P. 172. This, it will be found, is a discus- sion of defences to actions of covenant, debt, contract, &c, and it is said that duress is a good defence to such actions. In the case from Allen, also cited, it was held that duress is a good defence to debt on bond. Shaw et al. v. Spooner, 9 N. H. Rep. 197, was an action on a note given to settle a criminal prosecution, as was alleged, and the court held jiucb consideration void. So also with the cases from the 5th and 6trr N. H. Rep. Both were actions on notes given to sup- press or settle criminal prosecutions, and the same decision was made. The case from 3 N. H. Rep. was where money had been paid to procure a discharge from arrest, and the court held it might 176 LEADING CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. be recovered back. Watkins v. Baird, 6 Mass. 506, was assumpsit. Plea, a release; replication, that the release was procured by duress. The duress being proved, it was held, that the release was- void. The case from 1 Porter, 222, is the same doctrine as that of Watkins v. Baird. Now, although these authorities may be very good law in actions between individuals, where questions of duress and the set- tlement of criminal prosecutions may arise, yet we do not discover their force to sustain the position that the evidence as to the purpose of* Weed's arrest was wrongly excluded. They might perhaps be indirect authority in private actions between the Weeds and Nancy Pulsifer, on the ground that she was using the warrant for illegal purposes, but we cannot discover their applicability to the present case. In deciding this point, we are to proceed upon the supposition that the complainant had illegal objects to obtain in procuring the war- rant. We are also to take it, that Remick knew that her objects were illegal. But does that excuse this respondent from committing an illegal and criminal act himself? Surely not. Many prosecu- tions that are commenced, proceed from no very worthy motives or commendable objects. Sometimes they are instituted to bring about a settlement of other prosecutions, either criminal or civil. At other times to extort money from the offender ; and sometimes to accom- plish other illegal purposes. But an officer, with a legal process in his hands, is not to be governed by the motives or objects of prose- cutors. His duty is plain and imperative. It is to execute the pro- cess, regardless of any such influences. Suppose a theft has been committed, or a rape, and the complainant causes a warrant to be issued, with no other or better object than to extort money from the offender, and the officer knows that such is the object, is he to refuse to serve the warrant ? Is a higher crime to go unpunished because a less one is meditated ? If such be the doctrine, then every offender, however great his crime, may resist and kill an officer who shall attempt to serve a process which he knows has been procured from improper motives and corrupt designs on the part of the complainant. Every murderer may go at large, because the complainant having procured a warrant to effect some criminal object, and not to punish the offender, the officer into whose hands the warrant has been com- mitted, having been made acquainted with the designs of the com- plainant, does not execute the process; for knowing its object, he has no protection from the law. This may seem to be stating the position rather strongly, and yet it is only carrying out the principWcontended for in this case. But we think it will not answer to hold any such doctrine. Officers are punishable by indictment or civil suit, for all illegal or oppressive acts done by them. Coke upon Littleton, 233, 234 ; Bacon's Ab. tit. Office & Officers, N. ; Rex v. Bembridge, 3 LEADING CRIMINAL CASES. 177 Arrest by Officer — Voidable Warrant — Justification. Douglass, 327 ; Rogers v. Brewster, 5 Johns. 125 ; The Slate v. Stal- cup, 2 Iredell, 50 ; Geter v. Commissioners, 1 Bay's S. C. Rep. 354. But while in the execution of their offices they are under the pecu- liar protection of the law, a protection which is founded in wisdom and in every principle of political equity ; for without it the public tranquillity cannot possibly be maintained, or private, property secured ; nor in the ordinary course of things will offenders of any kind be amenable to justice. Such is the language of Roscoe, who goes so far as to say, that every citizen is bound to submit even to illegal process ; and East and Hale express the same opinion. Baron Hume, 1 Hume, 250, says, that if, instead of submitting for the time and looking for redress afterwards, the defendant shall resist an ille- gal warrant, it shall be murder. But it is not necessary to carry the principle to that extent in this case. The point is, that the complainant had an illegal design in procuring the warrant and causing it to be executed ; and we decide that the motives, intents, and designs of complainants have nothing to do with the duty of an officer. He is to execute all precepts put into his hands which are fair and legal upon their face, and will be protected in so doing, even though he knows that the objects of the complainants are illegal. Nor are we without high American authority for sustaining this position. In Webben et at. v. Gay et at. 24 Wend. 485, it was held, that a constable was protected in the service of a process which he knew was irregu- lar and erroneous. The chief justice, in delivering the opinion of the court, says : " I am not aware that the court has ever looked beyond the process to see if the officer was cognizant of the irregu- larity. The general rule is, that if the justice has jurisdiction of the subject-matter, and if the process is regular upon its face, the officer is protected. To go Beyond this would lead to a new and trouble- some issue, which would tend greatly to weaken the reasonable pro- tection to ministerial officers. Their duties, at best, are sufficiently embarrassing and responsible." Such, also, is the doctrine of The People v. Cooper, 13 Wend. 379 ; In The People v. Warren, 5 Hill's (N. Y.). Rep. 440, it was held, that " a ministerial officer is protected in the execution of process regular and legal upon its face, though he has knowledge of facts rendering it void for want of jurisdic- tion." This prosecution was an indictment against Warren for an assault and battery upon one Johnson, an officer, and resisting him in the service of a warrant against Warren. The warrant was issued by the inspectors of election of the city of Utica, for interrupting the proceedings of the election, and disorderly conduct in their presence. The respondent offered to prove, that he had not been in the presence or hearing of the inspectors at any time during the election, and that Johnson knew it. The evidence was ruled inadmissible, and the ruling 178 LEADING CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. sustained by the court above. In deciding the matter, the court say : "Although the inspectors • had no jurisdiction of the subject-matter, yet as the warrant was regular upon its face, it was a sufficient authority for Johnson to make the arrest, and the defendant had no right to resist the officer. The knowledge of the officer, that the inspectors had no jurisdiction, is not important. He must be gov- erned and is protected by the process, and cannot be affected by any thing which he has heard or learned out of it. The officer is protected by process regular and legal upon its face, whatever he may have heard going to impeach it." Having discussed the two principal points of the case at so much length, it is hardly necessary to add much respecting the others, inas- much as the disposition of them follows, almost necessarily, the decision of the first two. A word or two, however, in regard to them. It appears from the case, that the respondent proposed to in- troduce evidence, that the foundation of the complaint on which the warrant issued, was false and groundless, but the court excluded the evidence. Many of the authorities already cited are applicable and direct upon this point, and we will therefore add only two. The first is to be found in 1 East's P. C. 310, and is as follows : " Where a war- rant has been obtained improperly and by perjury, it varied^not the offence of him who killed the officer in attempting to execute it." The other is the case of Watson v. Watson, 9 Conn. 141. In this case it appeared that the officer knew that the plaintiff had no cause of action,. and the point was decided in these words : " It is the duty of an officer, in which he will be protected, to obey, without inves- tigating the cause of action, every precept put into his hands for service, which appears on its face to have issued from competent authority and with legal regularity. Consequently, his knowledge of facts evincing the existence or want of a cause of action, does not affect his duty or liability." The court also 1 say: " Obedience to all precepts committed to an officer to be served, is the first, second, and third part of his duty. Being a legal officer, it became his duty, regardless of any knowledge, or supposed knowledge, that there ex- isted no cause of action, to serve the writ committed to him promptly, unhesitatingly, and without restraint from the above-mentioned cause. This, I consider so firmly established as to render the proposition self-evident. The facts on the face of the writ constitute his justifi- cation, because he was obliged to obey its mandate." There can be no doubt in regard to this point. To carry out the doctrine contended for would be subversive of all legal proceedings. How many civil suits are instituted without any cause of action whatever? and how many criminal prosecutions are entirely without LEADING CRIMINAL CASES. 179 Arrest by Officer — Voidable "Warrant — Justification. foundation? To hold that an officer is not to be protected in the service of such precepts, but may be resisted with impunity, would impose upon him the necessity of investigating the facts and deciding every case correctly, before his property or life would be safe. No man who regarded either, would accept the office. For if he could be resisted in the service of process where the " foundation of the Gomplaint was false and groundless," not only would his life be ex- posed in its service, but he must, as a necessary consequence, be liable as a trespasser, or for false imprisonment, whenever it should appear that the proceeding was without cause. The mischiefs result- ing from such a doctrine must be very great, and are too apparent to require further comment. The official character of Remick not being in dispute, but well known to the respondent, the instructions of the court to the jury, "that if they found that Weed did not know that Remick had a warrant and was seeking to arrest him, then he was not guilty," were quite as favorable to the prisoner as the law would permit. 1 Hale's P. C. 461; The State v. Caldwell, 2 Tyler's (Vermont) Rep. 212; Wharton's Cr. Law, 318. But no objection to this ruling has been taken in the argument. If either party had cause to complain of these instructions, it would probably be the government. No further examination of them is necessary. Having gone through with all the general positions presented in the case, we might stop here. But, as we are desirous of looking at this case in all its particulars, there is one other matter to which we will devote a moment's attention. It is, that these proceedings were contrary to the nineteenth article of the Bill. of Rights, and therefore illegal. This article provides that no warrants shall issue if the cause or foundation of them be not previously supported by oath or affirm- ation. It will be perceived that this point, going to the regularity of .the proceedings, is but a subdivision of the first general position, and that the doctrine laid down there covers this exception ; still, as there has been an adjudication where this direct question arose, we will quote it here : we refer to Sanford v. Nichols, 13 Mass. 286. In that case a warrant, issued by virtue of the Constitution of the United States, was put into the hands of an officer, commanding him to search for certain goods. The warrant recited that a complaint had been made, but none was annexed to, or accompanied the warrant, nor does it appear by the report of the case that any complaint was ever actually made. One of the questions raised was, that a com- plaint in writing, under oath, should be shown as the foundation of the warrant; the Constitution of the United States providing that " no warrants shall issue, but upon probable cause, supported by oath or affirmation." 180 LEADING- CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. Parker, C. J., in delivering the opinion of the court, says : " We think that the defendants could have justified the acts complained of, by showing a regular warrant from a magistrate having jurisdiction over the subject, without showing that it was founded upon a com- plaint under oath. It will not do to require of executive officers, before they shall be held to obey precepts directed to them, that they shall have evidence of the regularity of the proceedings of the tribunal which commands the duty. Such a principle would put a stop to the execution of legal process, as officers so situated would be necessarily obliged to judge for themselves, and would often judge wrong as to the lawfulness of the authority under which they are required to act. It is a general and known principle, that executive officers, obliged by law to serve legal writs and process, are protected in the rightful discharge of their duty, if those precepts are sufficient in point of form, and issue from a court or magistrate having jurisdiction of the subject-matter. If such a magistrate shall proceed unlawfully in issuing the process, he and not the executive officer, will be liable for the injury consequent upon such act." The requirements of the Constitution of the United States are quite as explicit as those of our Bill of Rights; and the language of Chief Justice Parker is but the language of many other distinguished jurists, whenever the duties, obligations, and protection of officers has been the subject discussed. And after a careful and somewhat extended examination of the several positions taken by the respondent, the conclusion of the court is, that none of the exceptions can be sus- tained, and that there must be Judgment on the verdict. The right of arrest, without a warrant, son, or place, and that does not appear on has already been discussed in the preced- the process. But if the magistrate has no ing note. jurisdiction of the subject-matter, there It is proposed now to consider the rights every thing done is absolutely void, and and liabilities of the officer when clothed the officer is a trespasser. See Buller's with a warrant from the civil power. And Nisi Prius, 83 ;, Case of the Mqrshalsea, 10 here a marked difference exists between Coke, 68 ; Camp v. Moseley, 2 Florida, the liability of the magistrate who issues, 171; Hill v. Bateman, 2 Strange, 711; and that of the officer, who executes, a Entick v. Carrington, 2 Wilson, 275 ; Per- process commanding an arrest. It may kins v. Procter, 2 Wilson, 384 ; Allen v. not be easy to reconcile the adjudged cases Gray, 11 Connecticut, 95; Shergold v. on this subject, but all admit the protection Holloway, 2 Strange, 1002 ; Tracy v. Wil- of the officer to extend thus far at least, liams, 4 Connecticut, 107. that if the magistrate has jurisdiction of The protection of the officer has some- the subject-matter of the complaint, and times been carried much further, and it the warrant be lawful and regular on its has sometimes been said that whether the face, the officer is protected for an ar- magistrate had or had not jurisdiction in rest under it, although it be voidable for the case, and whether the process issued some error, irregularity, or mistake in some from a court of general or special juris- preliminary proceedings ; and so if the diction, yet if it appear on the face of the want of jurisdiction be only as to the per- nrnness that, thn macristratfi liaH lurisdintinn LEADING CRIMINAL CASES. 181 Arrest by Officer — Voidable Warrant — Justification. of trie subject-matter, and nothing appears to apprise the officer but that the court also had jurisdiction of the person, the officer is protected by his precept. Sava- cool v. Boughton, 5 Wendell, 170. There a justice of the peace issued an execu- tion against the plaintiff, regular in its form, on -which the defendant arrested him. The justice had jurisdiction of the subject-matter of the civil action against the plaintiff, but had never obtained juris- diction of his person by any service of pro- cess prior to the judgment ; the judgment, therefore, was erroneous, but the officer was held not liable. Marcy, J., said : — " The following propositions are well sustained by reason and authority. That where an inferior court has not jurisdic- tion of the subject-matter, or having it, has not jurisdiction of the person of the defend- ants, all its proceedings are absolutely void. " If a mere ministerial officer executes any process, upon the face of which it appears that the court which issued it had not jurisdiction of the subject-matter, or of the person against whom it is directed, such process will afford him no protection for acts done under it. " If the subject-matter of a suit is within the jurisdiction of a court, but there is a want of jurisdiction as to the person, or place, the officer who executes process is- sued in such suit is no trespasser, unless want of jurisdiction appears by such pro- cess. Buller's Nisi Prius, 83 ; Willes, 32, are eases cited." And the same principles were adopted in Chegaray v. Jenkins. 1 Selden, 381 ; Abbott v. Post, 2 Denio, 86, and many other cases in the same State. And if it be meant that the production by the offi- cer of such a warrant makes a, prima facie defence, it is undoubtedly true. The offi- cer is not bound to prove affirmatively that all the preliminary steps have been complied with. See Henry v. Lowell, 16 Barbour, 268 ; Kerlin v. Heacock, 3 Bin- ney, 215. But perhaps the current of authority is that the officer must decide at his peril, whether the magistrate issuing the warrant had general jurisdiction over the subject-matter of the complaint. The State v. McDonald, 3 Devereux, 471. 16 Accordingly, if the statute under which the warrant issued was unconstitutional ; Fisher v. McGirr, 1 Gray, 1 ; Green v. Briggs, 1 Curtis, 311 ; if the act charged against the accused constituted no crime for which an arrest might be legally made ; The State v. Leach, 7 Connecticut, 452; Moore v. Watts, 1 Breese, 18; Shergold v. Holloway, 2 Strange, 1002; 2 Session Cases, 100 ; Duckworth v. Johnston, 1 Ala- bama, 578; if the magistrate was forbid- den by law from issuing such a process, Stephens v. Wilkins, 6 Barr, 260, the offi- cer is a trespasser. It is otherwise if the magistrate were one de facto only, and not dejure. He might be liable, but the officer would not be. Wilcox v. Smith, 5 Wendell, 231 ; Rodman v. Harcourt, 4 B. Monroe, 230 ; Commonwealth v. Kirby, 2 Gushing, 577. So if a warrant issue with- out the oath prescribed by law, Gru- mon v. Raymond, 1 Connecticut, 40 ; and see Smith v. Bouchier, Cas. temp. Hard- wicke, 62, 69 ; 2 Barnardiston, 331 ; 2 Strange, 993 ; Gold v. Bissell, 1 Wendell, 213 ; Tracy v. Williams, 4 Connecticut, 107 ; if the warrant of arrest of a per- son do not state some cause certain, sustained by oath, Burford, ex parte, 3 Cranch, 448 ; Commonwealth v. Ward, 4 Massachusetts, 497 ; Brady v. Davis, 9 Georgia, 73 ; if such warrant of com- mitment fails to show that on the com- plaint, the accused was arrested or ar- raigned, or that he pleaded or was tried, or that there was proof of his guilt ; and if it expressly negatives that he was present before the magistrate, or that an unlawful sentence was imposed upon him, Gurney v. Tufts, 37 Maine, 130 ; if the warrant of commitment be for an unrea- sonable time, Davis v. Capper, 10 Barnewall & Cresswell, 28 ; or for an indefinite time, as until the defendant shall find sureties, i'rickett v. Qratrex, 8 Queen's Bench, 1020 ; if the warrant direct the officer to ^ommit the defendant to a future day for examination, without bringing hini before any magistrate, Pratt v. Hill, 16 Bar- bour, 305 ; Edwards v. Ferris, 7 Carring- ton & Payne, 542 ; in all such cases the arrest is illegal, and the officer is a trespasser. And an officer who justifies. 182 LEADING CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. an arrest under a magistrate's warrant ought to aver in his plea that the magis- trate had jurisdiction of the subject-matter, and that the warrant on its face was legal. And if the officer join with the magistrate in a plea of justification for an arrest, the plea must be a good defence for both, or it is for neither. Poulk v. Slocum, 3 Black- ford, 421. It being the rule, therefore, that the officer must decide at his peril whether the court had general jurisdiction over the subject-matter, and that in order to decide this question he may be governed by knowledge or evidence obtained aliunde from his precept, it is equally true that if the want of jurisdiction be only as to the person, place, or process, such want of jurisdiction must appear on the process, or the officer is shielded by its direction. Saracool v. Boughton, 5 Wendell, 170; Church'll v. Churchill, 12 Vermont, 661 ; Barnes v. Barber, 1 Gilman, 401 — 411 ; Miller v. Grice, 1 Richardson, 147. And it was upon this ground that the officer was held liable for an arrest in Pearce v. Alxoood, 13 Massachusetts, 344, because it appeared upon the face of the warrant that the justice had no jurisdiction of the defendant's person. But if the defendant be exempted from arrest, this is a fact not appearing on the process, and the officer would not be responsible for arresting him. Tarllon v. Fisher, 2 Douglass, 671; Chase,\. Fish, 16 Maine, 132; Carle v. Delesdernier, 13 Maine, 363. On the other hand, for any irregularity, material informality, or defect apparent on the warrant, the officer is bound to guard, and he is under no obligation to serve such process, and is not therefore protected in serving it. Thus, if the warrant be not directed to the officer, or class of officers, by whom it is served, he is a trespass- er. Russell v. Hubbard, 6 Barbour, 654 ; Freegard v. Barnes, 7 Exchequer, 827. So if it have no seal. 1 Hale's Pleas of the* Crown, *77; 3 Hawkins's Pleas of the Crown, bk. 2, eh. 13, § 21 ; 2 Gabbet's Crim- inal Law, 1 28 ; 1 Chitty's Criminal Law, 38 ; 4 Blackstone, Comm. 291 ; 2 Coke's In- stitutes, 52, 591 ; TJte State v. Curtis, 1 Hay- wood, 471 ; Somervell v. Hunt, 3 Harris & McHenry, 113 ; The State v. Caswell, T. U. P. Charlton, 280; Tacket v. The Stale, 3 Yerger, 392 ; Welch v. Scott, 5 Iredell, 72; The State v. Weed, 1 Foster, 268; The Slate v. Worley, 11 Iredell, 242 ; The State v. Drake, 36 Maine, 366 ; Lough v. Willard, 2 Rhode Island, 436. There are some decisions that a seal is not an essential part of a warrant ; and that the word warrant, does not, ex vi termini, import an instru- ment under seal, but only an authority ; and that a warrant need not be under seal unless by express direction of the statute under which it issues. Instances of such cases may be^ found in Padjield v. Cabell, Willes, 411; The State v. McNally, 34 Maine, 210 ; Davis v. Clements, 2 New Hampshire, 390 ; The Slate v. Vaughn, 1 Harper, 313 ; Thompson v. Fellows, 1 Fos- ter, 430 ; Colman v. Anderson, 10 Massa- chusetts, 105 ; Buller's Nisi Prius, 83, (a.) Many of these cases, however, were decis- ions upon warrants in civil cases, and the weight of authority is decidedly in favor of regarding a seal as indispensable in criminal warrants. So if the warrant be not supported by complaint founded on oath or affirmation, or if founded upon an insufficient oath, and that fact appear upon the warrant, the officer has no right to arrest, and is responsible for so doing. Caudle v» Seymour, 1 Queen's Bench, 889 ; Grumon v. Raymond, 1 Connecticut, 40 ; Smith v. Boucher, 2 Strange, 993 ; The State v. /. H. 1 Tylor, 444 ; Conner v. Commonwealth, 3 Binney, 38 ; Burford, ex parte, 3 Cranch, 448 ; Hoisted v. Brice, 13 Missouri, 171; al- though it would be otherwise if it did not so appear. Welch v. Scott, 5 Iredell, 72 ; The State v. Mann, 5 Iredell, 45 ; Donahoe v. Shed, 8 Metcalf, 326 ; Humes v. Taber, 1 Rhode Island, 464. Another instance of a warrant defective on its face, is that of a search-warrant, in which the goods to be searched for are de- scribed only in general and loose terms, as " goods, wares, and merchandise." Such a general description being contrary to the sixth article of the amendments of the Constitution of the United States, requiring all search-warrants to particu- larly describe the things to be seized, is LEADING CRIMINAL CASES. 183 Arrest by Officer — Voidable Warrant — Justification, void, and an officer acting under it, is a trespasser. Sanford v. Nichols, 1 3 Massa- chusetts, 286. In one sense such a pre- cept is not void on its face, but as every person is presumed to know the law, the officer must know, upon inspection of such process, that it is in contravention of law, and he acts, therefore, at his peril. So if a precept should command an officer to break and enter a dwelling-house, without stating any sufficient cause, he could not justify under such a precept, because every one is presumed to know that the dwelling- house of another cannot be lawfully forced, unless for purposes especially provided for by law. Parker, 0. J., in Sanford v. Nich- ols, 13 Massachusetts, 289. So a search- warrant, commanding an officer to seize certain negroes, which A. had enticed to leave B., and afterwards harbored, but not alleging that the negroes were stolen, is void, and the officer is liable. The State v. McDonald, 3 Devereux, 468. And, in like manner, a search-warrant for the seizure of stolen property, not sufficiently describing the place to be searched, is illegal and void under the Constitution of the United States, and most of the American States, and affords no protection to the officer. Reed v. Rice, 2 J. J. Marshall, 44 ; Grumon v. Ray- mond, 1 Connecticut, 40. So, if it do not sufficiently describe the person whose place is to be searched. Tuell v. Wrink, 6 Blackford, 249. And a warrant to search the premises of B. P. Tuell does not authorize an officer to search the premises of Benjamin P. Tuell. Ibid. And see The State v. Tuell, 6 Blackford, 344. So, a warrant commanding the Hoye, his real name being Richard Hoye the arrest is illegal, and the offieer liable, although the true offender be, in fact, arrested. Hoye v. Bush, 2 Scott, N. R. 86; 1 Manning & Granger, 775; Melvin v. Fisher, 8 New Hampshire, 406, and cases cited ; Gurnsey v. Lovell, 9 Wen- dell, 319 ; Mead v. Haws, 7 Cowen, 332 ; Scott v. Ely, 4 Wendell, 555 ; Griswold v. Sedgwick, 6 Cowen, 456 ; Willcs v. Lorck, 2 Taunton, 400. But defects in process which are amendable, and which do not render it absolutely void, although appa- rent on its face, do not make the officer liable. See Stoddard v. Tarbell, 20 Ver- mont, 321. It is only jurisdictional defects, and such as cannot be amended, that, when apparent, render the officer a trespasser. The apparent defects which leave an offi- cer without protection, are such as apprise him of a want of jurisdiction in the court, either over the subject-matter, or the per- son of the defendant. See Dominick v. Eacker, 3 Barbour, 17. The mere fact, therefore, that the warrant averred that the offence was committed on a day which was subsequent to its date, is no reason why an officer should not serve it, and he is justified in so doing. Patterson v. Kise, 2 Blackford, 127. And see Donahoe v. Shed, 8 Metcalf, 326. It may, therefore, be safely assumed that, if the warrant be regu- lar on its face, and the magistrate have ju- risdiction of the subjeotrmatter, the offieer is protected from acting under it, although it was voidable for some irregularity, mistake, or error in the preliminary proceedings. So essential is it that an officer, having an apparently legal and regular process put into his hands, should be under obli- arrest of ' F., son of Samuel Hood," is void, and an arrest under it illegal. Rex v. Hood, 1 Moody, C. C. 281 ; Wells v. Jackson, 3 Munford, 458. And a warrant against " the associates of A.," is also void. Wells v. Jackson. So is a warrant against^and voidable, yet he is not to be governed the " author, printer, and publisher " of a 'by such extrinsic knowledge, but must certain paper. Money v. Leach, 3 Bur- look to his warrant alone. Hood, in the parish of • gation to serve it, and therefore protected in serving it, and should be governed solely by the direction therein contained, that it has been frequently adjudged, that although an officer may know of facts which would make the process irregular Leach, 3 row, 1766; 1 William Blackstone, 555. For the warrant must carefully identify the party intended to be arrested. And if it describe the person intended as John See Tarlton v. Fisher, 2 Douglass, 671 ; Whitworth v. Clifton, 1 Moody & Robinson, 531 ; Web- ber v. Gay, 24 Wendell, 485 ; Watson v. W^atson, 9 Connecticut, 140 ; The People 184 LEADING CRIMINAL CASES. Arrest by Officer — Voidable Warrant — Justification. v. Warren, 5 Hill, 440 ; Goft v. Mitchell, 7 Blackford, 270; Wilmarth v. Burt, 7 Metcalf, 257. In this case an execution erroneously issued against the body of a discharged bankrupt, and the debtor showed the officer his discharge before the arrest ; it was held, nevertheless, that the arrest was justifiable, since it was com- manded in the precept, and the officer was not bound to examine into the validity, re- gularity, genuineness, or legal effect of the discharge. So, an officer is justified in serv- ing regular process, although he may know it was obtained for an undue purpose. The State v. Weed, ante. But if the officer .know, of his own knowledge, that the magistrate had not jurisdiction to issue the precept, he is not bound to serve it, and would not be justified in so doing. Barnes v. Barber, 1 Gilman, 401 ; Donald v. Wilhie, 13 Illinois, 22-602. Or if the •officer had actual knowledge that the process in his hands had been superseded, he would probably be a trespasser for pro- ceeding to serve it. Morrison v. Wright, 7 Porter, 67. As to the time and manner of making the arrest. Not only should the officer be armed with sufficient and legal power to make an arrest, but he must, at his peril, exe- cute his duty in a proper manner, or he thereby becomes a trespasser. As to the time of the arrest, it may be made on any day of the week, even on Sunday. Raw- lins v. Ellis, 16 Meeson & Welsby, 172 ; more fully reported in 2 Cox, C. C. 96 ; and at any hour of the day he thinks most expedient, under the circumstances. Wright v. Keith, 24 Shepley, 158. But he cannot use force and violence unless resistance be made. Findlay v. Pruitt, 9 Porter, 195; The State v. MOhon, 3 Harrington, 568. And even then, he ought to use no more force than is neces- sary to overcome the resistance and ac- complish the arrest. Wright v. Keith, 24*288 Maine, 158 ; Murdoch v. Ripley, 35 Maine, 546 472. But the burden of proving excessive force is on the party arrested. Henry v. Lowell, 16 Barbour, 268. See, however, Loring v. Aborn, 4 Cushing, 60 ; Kreger v. Osborn, 7 Blackford, 74. Nor ha§ a constable a right to handcuff his prisoner unless he attempt to escape, or it is in fact necessary so to do, in order to prevent an escape. Wright v. Court, 4 Barnewall & Cresswell, 596^ 6 Dowling & Kyland, 623. But of this necessity it was said in The State v. Stalcup, 2 Iredell, 52, that the officer is the judge, and the jury cannot supervise the correctness of his judgment. Sed quosre. In Leigh v. Cole, 6 Cox, C. C. 331, Williams, J., said : " With respect to handcuffing, the law undoubtedly is, that police officers are not only justified, but are bound to take all reasonable requisite measures for preventing the escape of those persons they have in custody for the purpose of taking them before the magis- trates ; but what those reasonable meas- ures are must depend entirely upon the circumstances, upon the temper and con- duct of the person in custody, or the na- ture of the charge, and a variety of other circumstances which must present them- selves to the mind of any one. As to sup- posing that there is any general rule that every one conveyed from the police sta- tion to the magistrates' court is to be hand- cuffed, seems to be an unjustifiable view of the law, and one on which the police offi- cers are mistaken. In many instances a man may be conveyed before the magis- trates without handcuffing him, and taking him thus publicly through the streets. On the other hand, it is necessary to take proper precautions in conveying a person in custody to be dealt with by the magis- trates; and the jury must say, whether, looking at all the circumstances, the de- fendant used reasonable precautions in this case, or used unnecessary measures to secure the safe custody of the plaintiff." And, of course, he cannot at common law arrest a person out of his jurisdiction, al- though the offence was committed in it. Lawson v. Buzines, 3 Harrington, 416 ; King v. Weir, 1 Barnewall & Cresswell, Rex v. Chandler, 1 Lord Raymond, Blalcher v. Kemp, 1 H. Blackstone, 1 5. An officer may detain his prisoner a reasonable time while searching for a mag- strate to Jry the cause. Arnold v. Steeves, 10 Wendell, 514. But he cannot detain hir" ? H. Rep. 558, that the signature of the foreman of the grand jury should be affixed to indict- ments, and that nothing short of such authentication should be re- garded as competent evidence of their proceedings. If any thing more than the signature of the foreman could be necessary to prove that the instrument signed by the prosecuting officer is authorized by the grand jury, the certificate should be, "a true indictment," rather than " a true bill." As these words are merely a form, and more- over an incorrect form ; and as the reason for them does not exist here, we think that their omission is not a ground for arresting the judgment. We are aware that Webster's case, 5 Greenl. 432, is an authority the other way. But that case was decided on the ground that it had always been the usage in England and in Massachusetts to affix these words to an indictment. The reason why they are necessary in England, and the fact that the mode of originating indictments here is different from that which exists there, are not adverted to ; 204 LEADING CKIMTNAL CASES. Indictment — need not be certified to be " a true bill." and with all deference to the eminent standing of Mr. Chief Justice Mellen, who pronounced the judgment of the court, we feel con- strained to come to a different result from that to which his reason- ing led him. The motion in arrest of judgment is overruled, and there must be Judgment on the verdict. In several of the States there hare been conflicting decisions upon the point de- cided in the principal case. Very recently in Massachusetts, it has been followed and approved as a "decision placed upon grounds which are satisfactory and conclu- sive." Commonwealth v. Smith, The Month- ly Law Reporter, Vol. 6, N. S. p. 489, (1853). In The State v. Webster, 5 Green- leaf, (Bennett's ed.) 373, it was held, for reasons which do not exist in the criminal practice and mode of procedure in this country, that the omission of the words, " a true bill," was a fatal error. A similar decision was made in Nomaque v. The Peo- ple, Breese, 109. In some of the United States, these words are required by stat- ute. Gardner v. The People, 3 Scammon, 83 ; Spratt v. The State, 8 Missouri, 247; McDonald v. The State, 8 Missouri, 283 ; Commonwealth v. Walters, 6 Dana, 290 ; Bennett v. The State, 8 Humphreys, 118. But the statute is directory merely, and the omission of them is no ground for arresting the judgment. The State v. Mer- tens, 14 Missouri, 94 ; Wau-kon-chaw-neck- kaw v. The United States, Morris, (Iowa,) 332. The words, "true bill," however, have been held sufficient, and as good as " a true bill." The State v. Davidson, 12 Vermont, 300 ; The State v.Elkins, Meigs, 109. So have the words, " a bill," omit- ting the word " true." Sparks v. The Commonwealth, 9 Barr, 354. Where there was no indorsement of the words, " a true bill," upon the indictment, but they were upon an envelope, in which the indictment was folded, and were followed by the signature of the foreman, this was held sufficient, after verdict. Burgess v. The Commonwealth, 2 Virginia Cases, 483. See Commonwealth v. Betion, 5 Cushing, 427. Whether or not indictments should be signed by the foreman, is also a question upon which the authorities are conflicting. In The Slate v. Squire, 10 New Hamp- shire, 558, referred to in the principal case, Upham, J., said : In this country the practice has been, after an indictment has been duly enrolled, to add the finding ; " This is a true bill ; " and affix to it the signature of the foreman ; and indictments thus found are presented to the court in the presence of the jury. This mode of authenticating indictments is analogous to that of all our forms of legal process, and we can see no good reason why it should be departed from. Indictments are our highest forms of original proceeding, and can be found solely by the grand jury, with such advice merely as the counsel for the State may give ; and it is highly proper that all their acts should bear the test of the presiding officer of their body. Noth- ing short of such authentication should be regarded as competent evidence of their proceedings ; and indictments thus found should be presented to the court in the presence of the jury. A change in either of these respects might lead to doubt as to what were the true proceedings of the jury, and diminish confidence as to their definite and independent action. Contrary decisions have been made in South Carolina, North Carolina, and Ken- tucky. The Stale v. Creighlon, 1 Nott & McCord, 256 ; The Stale v. Coe, 6 Iredell, 440 ; The State v. Calhoon, 1 Devereux & Battle, 374 ; Commonwealth v. Walters, 6 Dana, 290. In Commonwealth v. Wal- ters, the court said that they knew of no statute or other authoritative rule of prac- tice which requires that the foreman of the grand jury should put his name on the back of an indictment, either with or without the designation of his character of foreman. In Mississippi, an indictment indorsed as a true bill, and returned by the authority of the whole grand jury, is sufficient, without the snecial aDDointment LEADING CRIMINAL CASES. 205 Conviction of Prisoner, date of — Estoppel by Record — Assizes. of a foreman. Friar v. The Slate, 3 How- "foreman of the grand jury." The State ard, 422; Peters v. The State, 3 Howard, v. Chandler, 2 Hawks, 439. Underastat- 433. The record is sufficient evidence of ute requiring indictments to be signed by the appointment of the foreman, by the the foreman, it has been decided, that, as court. Woodsides v. The State, 2 How- the object of the signature is to show to ard, (Miss.) 655. A variance between the court that the indictment had been the name of the foreman on the record, passed upon and found by the grand jury, and his signature on the indictment, is im- that this is as well shown by an indorse- material. The State v. Calhoon, 1 Deve- ment of his signature as by placing it at reux & Battle, 374; The State v. Collins, the foot of the indictment. Ooershiner v. 3 Devereux, 117 ; The State v. Stedman, The Commonwealth, 2 B. Monroe, 344. 7 Porter, 495. His name alone is suffi- H. cient, without the addition of the words, Whitaker v. Wisbey. 1 January 24 and February 4, 1852. Conviction of Prisoner, date of — Estoppel by Record — Assizes. Although the entire period over which the assizes extend in one place is, by the contempla- tion of law, and for some purposes, one legal day, the particular day on which a prisoner's conviction took place may, when necessary, be shown ; and the record does not operate as an estoppel so as to shut out evidence of the actual day on which the prisoner was convicted. This was an action of trover, brought against the defendant, an auctioneer and agent, for the crown, for the disposal of felons' goods. Pleas. — 1. Not guilty. 2. Not possessed. The cause was tried before Cresswell, J., at the summer assizes for Huntingdon. It appeared in evidence that George and Thomas Whitaker, the father and brother of the plaintiff, Richard Whitaker, were tried for arson before Erle, J., at Cambridge spring assizes, 1851, and convicted and sentenced. The commission day of Cam- bridge assizes was Wednesday, the 19th of March ; the trial of the prisoners commenced on Saturday, the 22d of March, and terminated on Monday the 24th. By a deed, dated the 17th but not executed till the 20th of March, the prisoner, Thomas Whitaker, assigned his goods to the plaintiff. The corporation of Cambridge claimed the goods for the crown, as the property of a felon, and employed the defendant to sell them, whereupon the plaintiff' brought his action of trover to recover the value of the goods. For the defendant the record of the conviction of Thomas Whitaker was put in evidence, 1 6 Cox, C. C. 109 ; 9 Eng. Law and Eq. K. 457. 18 206 LEADING CRIMINAL CASES. Conviction of Prisoner, date of — Estoppel by Record — Assizes. and it was contended that, as in contemplation of law the assizes are of one day ; the record, the caption of which bore date of the commission day, must be taken as conclusive evidence that the con- viction took place on the 19th of ■ March, and before the assignment. The jury found for the plaintiff, damages £210; they also found specially that the deed of assignment was bond fide, and for a valu- ble consideration. Leave was reserved for the defendant to move to enter a verdict on the plea of not possessed, if this court should be of opinion that the conviction must be taken as dating on the commission day of the assizes. A rule nisi in those terms having been obtained on a former day by Prendergast, Q. C. — Worlledge and Burcham now showed cause. At the time when the prisoner, Thomas Whitaker, executed this assignment, he was competent to perform such an act, because he was not convicted. [Williams, J. The point here is, whether by force of law the con- viction dates from the first day of the assizes ?] Yes. By law so far as felons' goods are concerned, the title of the crown relates back only to the day of actual conviction. It was certainly the opinion of Hale, C. J., that even after indictment a prisoner can make a good deed. He says : " The goods of a person convicted of felony are forfeited to the king p but the relation of the forfeiture refers not to the time of the offence committed, but only to the conviction ; and, therefore, an alienation made by the felon bond fide and .without fraud, between the offence and conviction, is good, and binds, but if fraudulent, then it is avoidable by the stat. 13 Eliz. ch. 5." 1 Hale, P. C. 361, 365-367. This point was well considered in Perkins v. Bradley, 1 Hare, 219. In that case it was held by Vice-Chancellor Wigram, that a felon -might dispose of his property for a valuable consideration, between the day when the offence was committed and conviction. Take, as an illustration, a case where the assizes extend over a long space of time, as in Yorkshire. The commission opens on Saturday ; on Monday, a man bond fide sells his goods to an innocent purchaser for valuable consideration; on Tuesday he steals his neighbor's property, is taken at once before the grand jury, who find a true bill against him. Can it in such a case be said that a mere fiction of law is to prevail, and that, therefore, he could not make a good sale of goods on Monday ? [Maule, J. Those fictions must not be stretched to the extreme limit they will go. It seems absurd to say that an act actually done on the 25th, shall be referred back to the 3d of March.] There are no cases to be found where a conyeyance was made after* commission day and before conviction. The cases of Shaw v. Brand, Starkie. 319. and one in Skinner, 357, LEADING CRIMINAL CASES. 207 Conviction of Prisdner, date of — rEstoppel by Record — Assizes. are, however, instances of conveyances made very recently before the commission day. Then, as to the question of estoppel, there are numerous authorities to the effect that, where matter of estoppel can be pleaded, it must be relied on. Macgralh v. Hardy, 4 Bing. N. C. 782. It is admitted that we cannot traverse the record. It is merely by fiction of law that the whole period of commission of oyer and terminer is to be taken as one day. But this court will take judicial notice that assizes may and do continue more than one day. The recordof conviction is drawn up by the officer of the court as of the first day of the assizes, and for some purposes, but not necessarily for all, the assizes are treated as of one day. The record may be con- clusive as to the fact of conviction, but is not necessarily so as to the date of it. We have no power over the record so as to enable us to enter continuances. If the adjournments from day to day had been entered, as they ought to have been, by the officer of the court, we should have been in a better position, but we are not to be prejudiced by his default. The duties on the court as to making proper entries, are laid down in Hale, P. C. 24. It is also said in 3 Co. Inst. ch. 104, p. 229, on falsifying attainders : " That if the triers find the offender guilty generally, yet the feoffee or lessee, if the offence be alleged in the indictment, before it was done to their prejudice, may falsify in the time, but not for the offence." What principle of justice is there which prohibits the alienee of goods from showing the true day when they were assigned, as well as the true day of conviction? [Williams, J. Is that any thing more than an authority to this — that the record is an estoppel with respect to those matters which are material and traversable.] According to the argument of the other side, if adjournments are entered the deed is good ; if not, it is bad; so that it must depend upon the manner in which the clerk of the court performs his duty in making up the record, whether this assign- ment is good or bad. There is authority for this, that parties interested may show the true time. 4 Co. ch. 7 ; Huys v. Wright, Yelv. 35; Johnson v. Smith, 2 Burr. 962. This last is a case strongly in point. If it was there allowed to show the true day for the further- ance of justice, why should we not here, for the same purpose, be allowed to show the actual day of conviction 1 Morris v. Pagh, 3 Burr. 1241. [Maule, J. Fictions of law must be consistent with justice.] If the court were to refuse this, a manifest injustice would follow. Burnitt v. Isaac, 10 Price, 124 ; Thomas v. Des Anges, 2 B. & Ad. ; Sadler v. Leigh, 4 Camp. 195. It was said by the court in Doe v. Hersey, 3 Wils. 274, " By fiction of law the whole term, the whole time of the assizes, and the whole session of parliament may be, and sometimes are, considered as one day, yet the matter of fact shall overturn the fiction in order to do justice between the parties." In 208 LEADING CKIMINAL CASES. Conviction of Prisoner, date of — Estoppel by Kecord — Assizes. Lyttleton v. Cross, 3 B. & Cr. 317, it is laid down by Abbott, C. J., " That where it is for the interest of the party pleading to show that a proceeding did not take place at the precise time when by fiction of law it is supposed to have happened, it is competent for him to do so." Butler and Baker's case, 3 Rep. 25. [Williams, J. Is this a •question of fiction or relation at all ; is not the question whether the record is so drawn as to be an estoppel ?] We have shown that an alienee of lands may show the true day. [Maule, J. The conten- tion is, that the court will take judicial notice that the legal day of the assizes contains several ordinary days of twenty-four hours.] Yes ; and that we may show on which of those days the assignment, and on which the conviction took place. Prendergast and CMalley, in support of the rule. The point raised in this case has been decided years ago. There was no evidence before the court below, nor is there any thing now, to show when the prisoner was convicted, except the record of conviction. [Maule, J. You say you cannot in such a case prove the time by other evidence than the record. That may be so, but was any other evidence tendered? If not, there is no matter of law, but it is a simple question of fact.] We admit that the plaintiff offered to prove that it was subsequent to the execution of the deed that the prisoner was arraigned for the felony. For our case, we put in evidence the formal conviction of the prisoner by producing the record. If the plaintiff could show by other than the record when the conviction actually took place, then we should have no case ; but that cannot be done. There was no other evidence before the jury of the conviction, for the plaintiff could not give parol evidence. The rule is clear, that where a person is convicted in a court of record, the only evidence of his conviction is the record itself. The cases cited on the other side will be found, on close examination, not to apply. The record states that the conviction took place on a certain day, and evidence cannot be admitted in contradiction, show- ing it took place on another day. 1 Phillips, Ev. 425 ; Thomas v. Ansley, Esp. 10; Pope v. Foster, 4 T. R. 490. That this rule is carried out to a great extent will appear from reference to 2 Hawkins, 179. In the next place the record shows that the prisoner was tried and convicted on the 19th o,f March, and that entry forms part of the record. Now it has been held that if a record shows that a trial took place on a certain day, it must be taken it was finished on that day. The rule as to one continuous day extends to all sessions, and even to parliament itself. Walker v. Holmes, 4 T. R. 660; The Attorney- General v. Panter, 6 Bro. Par. C. 486 ; St. Clement Danes v. St. Ann's, Holborn, 2 Salk. 6 ; 2 Brook's Abr. 40. Where a record states a LEADING CRIMINAL CASES. 209 Conviction of Prisoner, date of — Estoppel by Record — Assizes. thing as having been done on a particular day, and any other matter relating to it is shown to have taken place after that day, the doctrine of relation applies, and the court will take it as having been done on the day specified in the record. This is stated in 2 Brook's Abr. 197, Relation, 13; vide Charter, 25; and this doctrine has been universally acted upon. There is a note in Saunders to the same effect. In Ludford v. Gretton, Plowd. 491, it said " that all matters of record in respect of their highness are presumed in themselves to carry absolute truth. And, therefore, none can say that the king's charter was made or delivered at another time than when it bears date, no more than a man may say that a recognizance or statute merchant or staple was acknowledged, or any writ purchased at any other time than when it bears date. For, to aver that it was antedated, or that it was delivered or acknowledged after the date, tends to the discredit of the Great Seal or of the officer of record." In Portchester v. Petrie, 3 Doug. 261, it was held by Lord Mansfield, that where it was admitted on the record that two judgments were given on the same day, priority of judgment'could not be averred. Every act of parlia- ment in which no time is specified for its commencement, is held to take effect from the first day of that session of parliament wherein it is made. In the next place, matter in pais, though it may have occurred before, will, by relation, be taken to be done on the day. Jacobs v. Miniconi, 7 T. R. 31 ; Greenway v. Fisher, 7 B. & Cr. 436. [Williams, J. Then you say, that if a shopkeeper in York is convicted on the last day of the assizes, all the goods he has sold during a fort- night since commission day, and all the money he has received for them, is forfeited to the crown?] Yes; it is almost an universal practice to make such assignments as these before commission day. All the cited cases are within the rule laid down by Lord Mansfield, C. J., in Portchester v. Petrie, supra. But the case strictly in point here is that from Hale, suprd. In law, a record is supposed to be a minute of what takes place from time to time in the court; it is not such a trifling thing as the other side would have the court believe. If the plaintiff were permitted to give parol evidence of the day when the prisoner was convicted, it would be admitting parol evi- dence of the indictment itself. The court should therefore say that the inconvenience which would follow is so great that it cannot be permitted. The old rule goes so far as this, that a mischief shall be preferred to an inconvenience. The general principle that facts shall prevail against fictions of law, is limited to some few cases, and does not affect verdicts and records of superior courts generally. Jacobs v. Miniconi, supra. When the court have before them what the law says is the proper evidence of conviction —that is to say, the record, they are precluded from admitting any other evidence. Lant v. Arnaboldi, 18* 210 LEADING CRIMINAL CASES. Conviction of Prisoner, date of — Estoppel by Record — Assizes. 1 Cr. & Jerv. 97 ; Rex v. Thur stone, 1 Lev. 91 ; Rex v. Carlisle, 2 B. & Ad. 362. This last case very strongly illustrates the force of a record as evidence. Rex v. Shaw, Russ. & Ey. 526. In the cases cited on the other side, there is not a single instance where evidence was admitted to contradict a record. "We are contending for a posi- tive and necessary rule of evidence which must be sustained, or great inconvenience will be occasioned. Maule, J. This case has been argued by the learned counsel on both sides in a very elaborate and learned manner; every authority bearing upon it has been cited ; but I do not myself now entertain, nor have I throughout the arguments entertained, any doubt upon the question. This was an action of trover, to which the defendant pleaded not possessed. The plaintiff was the assignee under a deed of the goods of a prisoner. It appears that the commission day of Cambridge spring assizes was the 19th of March, that the deed of assignment was executed on the 20th, and that the prisoner who so executed the deed was on the 24th tried' and convicted of felony. The defendant said by his plea that the goods were not the goods of the prisoner, because he could not convey them by assignment on the day when the deed transferring the property in thern was executed. At the trial at Nisi Prius, the jury found, that the deed of assignment was executed bond fide, and for a valuable consideration. The re- cord was produced, which showed the conviction as having taken place on the 19th of March, two days previous to the execution of the deed ; and it was insisted that this was conclusive against the plain- tiff. No doubt the plaintiff had a good title, unless it was taken away by the record of conviction prior to the assignment. [His lordship read the record.] The caption of the record of conviction states that the assizes were held on the 19th, but there is no allegation that the trial and conviction took place on that day, so that there is mention of the day when the assizes were held, but none of the day of con- viction. If no further evidence was admissible, it must be taken that the conviction was on the 19th; for, so far as the record goes, the assizes begin and finish on that day. If the assizes began and finished on the 19th, then the conviction, as shown by the record, re- fers only to that day ; but, where the assizes extend over several days, as here, the question is, whether you can show that the conviction did not take place on the 19th, but on the 24th. I apprehend that, consistently with true principles of law and every decided case, you can. As far as the record is concerned, the assizes may be regarded as of one day ; but that day is a legal day, which may, and often does, consist of more than one natural day of the twenty-four hours. The legal day may last from the 19 fh nw the 24th. and there is no LEADING CRIMINAL CASES. 211 Conviction of Prisoner — Date of — Estoppel by Record — Assizes. necessity for entering the adjournments. The court will itself take judicial notice that the assizes are continued from day to day. There- fore, when the record alleges that the assizes were held on the 19th, proof that the trial in point of fact took place on the 24th is no con- tradiction of the record. The evidence does not show that the trial did not take place on the 19th in the sense in which that term is used in the record. It is no more inconsistent to show that the conviction took place on the 24th than it would be if the record should show on what particular hour of the day a conviction took place. If it were material to show at what particular hour of the 19th the conviction took place, and it certainly might be done, in like manner you may show on what natural day, being part of the legal day, the conviction occurred. Fictions of law are for the furtherance of justice. The principle that evidence is not admissible to contradict a record is one calculated for the advancement of justice; but the ground upon which I feel bound to decide this case seems fully recognized in Doe v. Hersey, where it is said : " By fiction of law, the whole term, the whole time of the assizes, and the whole session of parliament may be, and sometimes are, considered as one day; yet the matter of fact shall overturn the fiction in order to do justice between the parties." S.eizure is said to relate to the time when the writ is put into the hands of the sheriff. Some cases have been relied upon as to the beginning of term ; but though for some purposes it is held that all term is one day, still that cannot be held for all purposes, because there are within it various return days and the like, and the court knows judicially that it consists of several natural days. In bank- ruptcy, several acts are said to relate back to some previous day. An act of parliament (unless the contrary is specified) takes effect from the first day of the session. But those cases do not seem to me ap- plicable to the present. Suppose, as has been suggested in argument, that in places where, assizes last a fortnight or three weeks, a person on bail, say a shopkeeper, is convicted, or that he commits a felony during the assizes, then, according to the argument used-on behalf of the defendant, all goods sold by him between the commission day and the day of his trial would be forfeited. Considering that fictions of law are not to prevail against facts, we must hold the plaintiff entitled to recover, for the jury found that the conveyance was bond fide, and for a valuable consideration. It is not necessary, for the reasons given, that we should go with minuteness into the cases cited ; we think this rule should be discharged. Williams, J. I am quite of the same opinion. Counsel have brought before the court every case bearing upon the subject, and the result of this thorough research into the authorities, as contended by 212 LEADING CRIMINAL CASES. Larceny — Bringing stolen Property into the State. the defendant, would be, that the court is constrained, by an arbitrary rule of law, to say that the conviction, which in point of fact took place on the 24th, was on the 19th of March. I do not think this is so. The conveyance is perfectly good if made before the actual con- viction of the person executing it. It is urged that we are compelled by a positive rule of law to say that the conviction took place on the day named in the record. If we did so, it Would work injustice in many cases other than this ; such, for instance, as where bond fide purchasers buy goods, after commission day, of a man convicted of felony before the close of the assizes. The consequences would be so absurd as to make the soundness of the rule doubtful. I agree with my learned brother in thinking that the assizes are to be con- sidered as of one legal day containing natural days ; and as the court would be bound to take notice of an hour or fraction of the legal day, so it may take notice that the conviction here took place on one particular natural day within the legal day of the assizes. Rule discharged. Simmons v. Commonwealth. 1 July 17, 1813. Larceny — Bringing stolen Properly into the Slate. A person who steals goods in another State, and brings them with him into this State, cannot be indicted here for the felony. He is to be treated as a fugitive from justice. The plaintiff in error was indicted at a mayor's court for the city of Philadelphia, in March, 1812, for feloniously stealing and carrying away twenty-five silver spoons and other articles, the property of E. I. Dupont; and upon the trial the jury found a special verdict which stated, " that the defendant did feloniously steal, take, and carry away all the goods and chattels mentioned in the indictment (except six shirts, of the value of seven dollars,) within the State of Delaware, and that he brought the same into the city of Philadelphia, and within the jurisdiction of this court; but whether, &c." Upon this verdict, the court being of opinion that the defendant was guilty in manner and form as he stood indicted, adjudged him to restore the property stolen, or pay the value to the owner, and to 1 5 Binney ft i "> LEADING CRIMINAL CASES. 213 Larceny — Bringing stolen Property into the State. undergo a servitude at hard labor for the space of three years ; and Upon this judgment a writ of error was brought in this court. The question was argued by Phillips, for the defendant in error, and the attorney-general (Ingersoll,) for the Commonwealth. Tilghman, C. J. This is an indictment for larceny. The property was originally stolen in the State of Delaware, and afterwards brought by the thief into this city. The jury found a special verdict ; and the question submitted to the court is, whether under such circumstances, an indictment can be supported in the mayor's court. The point has never been expressly decided ; but it is understood, that a practice has prevailed sub silentio, under which there have been convictions in several of the courts of the State. This practice was founded on the general principle, that possession in the thief amounts to a larceny in every county into which he carries the goods, because the legal possession still remains in the true owner, and therefore every moment's continuance of the felony amounts to a new caption and asportation. There is considerable subtlety in this principle. It was probably adopted for the convenience of trying the felon in the county where he was taken with the goods in his possession. For it is scarcely reconcilable to plain common sense to say, that the con- tinuance of the possession amounts to a new taking. It is in fact but one and the same felony, and so it is considered in law; for if the thief, after carrying the goods from the county in which they were stolen, to another county, and after being indicted and convicted in the latter, should be again indicted in the former, he may plead the conviction in bar, which could not be done if they were different felonies. I consider the principle which I have mentioned as border- ing upon a fiction, and although it is so well established as not now to be called in question, yet there is no reason why we should give it greater extent than it has received in the English common law from whence we took it. Now it was never extended by that law to cases where the original taking was without the kingdom. This is expressly stated by Lord Coke in 3 Inst. 113, and 13 Co. 53, in proof of which he cites Butler's case in the 28th year of Elizabeth. It was the opinion of the judges at that time, that no offence was punishable at common law, which was committed without the juris- diction of the common law, that is out of the kingdom. This ancient doctrine has been adhered to in modern times, as appears in 2 Easifs Cr. Law, 772, where the case of The King v. Anderson is cited, in which it was determined by all the judges in the year 1763, that no indictment lay in England for goods stolen in Scotland and brought into England. This was found inconvenient, and therefore, so far as respected goods stolen in Scotland, a remedy was provided 214 LEADING CRIMINAL CASES. Larceny -^ Bringing stolen Property into the State. by stat. 13 Geo. 3, ch. 31. But I have never heard it suggested that the English courts assumed a criminal jurisdiction in case of goods stolen beyond sea, and brought into England. It may be said to be inconvenient not to exercise jurisdiction in cases of goods stolen in one of the United States, and brought into another, and it appears to me that it will be inconvenient. 'But the legislature may at their pleasure apply the remedy, as the British parliament did. I feel myself treading on tender ground, when criminal jurisdiction is in question; and I confess that I had rather see a hundred culprits escape, than extend such jurisdiction a hair's breadth beyond its constitutional limits. The Constitution of the United States provides for the case of an offender flying from the State in which the offence is committed. Wherever he is found, he may be secured and sent to that State for trial, on demand of the executive thereof. If we should punish him, he may be punished again in the State to which he may be sent; for certainly the courts of that State are not bound to pay any regard to our proceedings. A conviction here is no bar to an indictment there. The different States are altogether as inde- pendent of each other in point of jurisdiction, as any two nations ; and if murder committed in one State, should be prosecuted in another to which the murderer had fled, without the authority of an act of assembly, we should at once be shocked at the proceeding. In the Supreme Court of New York, it has been decided that larcenies committed out of the State, cannot be prosecuted within it, although the goods are brought there. 2 Johns. 477, 479. In the State of Massachusetts the contrary opinion has been held. 1 Mass. Rep. 116, 2 Mass. Rep. 14. It appears however that the judges of Massa- chusetts relied very much on a decision in their own courts, by which they conceived themselves bound, and the case of The King v. Anderson, cited in 2 East, from a manuscript report, does not seem to have been known, because it is mentioned by Judge Sedgwick, that the only case relied upon as directly in point, was Butler's case, 3 Inst. 113. If the point had ever been decided in this court upon solemn argument, I should have been for letting it rest. But that not being the case, we must take it up as res Integra, and I am of opinion that the mayor's court had no jurisdiction, and therefore the judgment should be reversed. Yeates, J. I was not present at the argument on the special ver- dict found upon this indictment, having been on that day confined to my chamber by indisposition; but I have been furnished with the notes of the cases cited, and of the arguments of counsel on both sides. The jury have found the prisoner guilty of larceny, in steal- ing twenty-five silver spoons of the value of $100, of the goods LEADING CRIMINAL CASES. 215 Larceny — Bringing stolen Property into the State. and chattels of Mr. Du Pont de Nemours, at Wilmington, in the State of Delaware, and that he brought the stolen goods into the city of Philadelphia. The mayor's court have decided that the facts thus found constitute a larceny here, in legal contemplation, and have sentenced the prisoner to an imprisonment at hard labor for three years, &c. The question is, whether the offence charged against the prisoner is supported by these facts, so as to justify a conviction in this city. Larceny is defined in the old books to be fraudulenta obtrectatio rei aliencp, invito domino. There must be a felonious taking and carrying away, in order to constitute the crime. Offences are local in their nature, and must at common law be tried in the county where they were committed. There can be no doubt under the English authorities, that where a person steals goods in the county of B., and afterwards carries them into the county of C, he may be indicted in the county of C. for the felony in the county of B. The reason given is, that the possession still continuing in the true owner, every moment's continuance of the trespass is as much a wrong to him, and may come under the tech- nical word cepit, as much as the first taking. 2 Hawk. ch. 33, § 9 ; 2 Hawk. ch. 25, § 38 ; 1 H. H. P. C. 507^8, 536 ; 2 H. H. P. C. 163. But to this rule there is an exception, that where goods have been piratically taken on the high seas, and afterwards have been brought into some county in England, this is no felony punishable at common law, because the original taking was not an offence whereof the common law had cognizance. 13 Co. 53, Butler's case, 3 Inst. 113. It is objected by the counsel of the plaintiff in error, that Delaware, where the offence was first perpetrated, being a sovereign independent State, forms likewise an exception to the rule ; and that although a conviction and judgment in one county, may be pleaded in bar to an indictment for the same offence in another county in the same State, yet the same would not hold where the sovereignties were completely independent of each other. The case of Rex v. Anderson and others, (in 1763,) 2 East's PI. Cro. 772, was contended to be similar in prin- ciple to the present. Where the original taking was in Scotland, it was adjudged that the felon could not be indicted in the county of Cumberland, where he was taken with the stolen goods. To remedy this defect in the law, the provisions in the fourth and fifth sections of the stat. of 13 Geo. 3, ch. 31, were enacted. Reliance also has been placed on two decisions in the Supreme Court of New York in November, 1807; The People v. Gardner, 2 Johns. 447; where a person stole a horse in the State of Vermont, and fled into the State of New York, where he was apprehended with the horse in his pos- session ; it was determined that the prisoner could not be tried in 216 LEADING CRIMINAL CASES. Larceny — Bringing stolen Property into the State. New York for the felony. The court held, that where the original taking was out of the jurisdiction of the State, the offence did not continue and accompany the possession of the thing stolen, as it does in the case where a thing is stolen in one county, and the thief was found with the property in another county. The prisoner could be considered only as a fugitive from justice from the State of Vermont. On the authority of this case one Schenck, who was indicted in the city of New York for stealing a gun, and the jury found a special verdict that the gun was stolen in the State of New Jersey, and brought by the prisoner into New York, where it was found in his possession, the court said that the prisoner was entitled to his dis- charge ; but they ordered him to be detained in prison three weeks, and notice thereof to be given to the executive of New Jersey, and if the prisoner should not be demanded within that time, that he should be discharged. Ibid. 479. The attorney-general has insisted, that no solid distinction can be made between this case, and that wherein goods have been stolen in one county and carried into another county. In either instance the possession of the goods though stolen and carried away, in legal contemplation remained in the real owner. It would be highly inexpedient that such offences should go unpunished ; and it is absurd to suppose that a criminal in one State, passing its boundaries-* with the stolen articles in his hands, should escape with impunity. The invariable practice has been to try offences of this nature in this State, and the reason operates much more strongly since the adoption of the Constitution of the United States. We are now become a federative republic. Two cases in the Supreme Judicial Court of Massachusetts have settled the law in that commonwealth in the manner it is now contended for on the part of the prosecution. Respub. v. Thomas Cullens, 1 Mass. Term Rep. 116, and Respub. v. Thomas Andrews, in March term, 1806. The last was for receiving knowingly, goods stolen in New Hampshire, which were brought into Massachusetts, was fully argued by able counsel, and received the unanimous decision of all the judges, who delivered their opinions seriatim. The doubts respecting the law, anterior to the British statute of 13 Geo. ch. 31, as expressed in its preamble, were adverted to and remarked upon ; and the court thought that upon principle, independently of the cases decided in Massachusetts, the common- law doctrine respecting counties might well be extended by analogy to the case of States, united as these are under one general govern- ment. The questions in the New York cases, cited for the plaintiff in error, appear to have been submitted to the court and decided without argument. I have bestowed on this subject every attention in my power, and LEADING CRIMINAL CASES. 217 Larceny — Bringing stolen Property into the State. will at once say, that the chief difficulty which I had to combat, was he effacing of impressions formed in my mind from the practice .Uuded to by the attorney-general in his argument. But I cannot .gree with him, that the principle which he has contended for, is ortified by' the present Constitution of the United States. The pn> ■isians of that instrument exclude the idea of the jurisdiction nsisted on, and supersede the necessity of exercising it, least crimi- lals in other States should escape with impunity. We find in the econd section of the fourth article of the federal compact between he several States, that a person charged in any State "with treason, elony, or other crime, who shall flee from justice and be found in mother State, shall on demand of the executive authority of the State 'com which he fled, be delivered up, to be removed to the State javing jurisdiction of the crime." When the law is settled and iscertained, political expedience can have no influence on our judg- ( uents. We are bound to pronounce the law as we find it written. In criminal cases, in particular, the party charged should suffer no jther or greater punishment than the law imperiously enjoins. I :annot possibly suppose, that where it is said in some of the books, ;hat the asportation of stolen goods into a different county, satisfies ;he word cepit, by amounting to a new taking, any thing more is neant than it being a continuance of the first unlawful act, it is punishable in either county ; not that new and distinct offences arise n every county into which the goods are carried. Were it otherwise, ;he original unlawful act might be punished as often as the number )f counties into which the criminal removed the goods ; which would je a plain violation of the great principle of natural law and political ustice,that a man should not be punished twice for the same offence. Upon this ground it was held, where a piracy had been committed it sea, and the goods piratically taken brought into England, the Dffence was not punishable in a court of common law; if so prose- cuted, the admiralty, having jurisdiction of the original offence on ;he high seas, might also proceed against the parties charged, who would thus be subjected to a double penalty for the same crime. 13 □0.-53, 3 Inst. 113. The distinction between the principal case and stolen goods carried iom one county into another in the same state or kingdom, appears ;o me sufficiently obvious. In the latter instance, general laws jervade the whole government, and prescribe penalties on distinct jffences. There autre fois convict in one county, may be pleaded in >ar to another prosecution for the same offence in another county. Sut not so as between distinct and independent States, governed by lifferent laws. Our laws have no influence in the sister State of Delaware, and so vice versa. A conviction here of an offence against 218 LEADING CRIMINAL CASES. Larceny — Bringing stolen Property into the State. the peace and dignity of this Commonwealth, cannot be pleaded in bar to an indictment in Delaware for the same offence laid against the peace and dignity of that State. Besides, the penal codes of the several States greatly vary. "We must presume that the punishments annexed to crimes in Delaware, are properly calculated to promote the peace and good order of society in that State. If the penalty prescribed to a larceny is more severe than that in Pennsylvania for the like offence, then it is clear, that the defendant does not receive an adequate punishment upon his conviction here of the crime com- mitted in Delaware ; but if, on the other hand, the punishment here is the most severe, it is also clear that upon such conviction, he would be subjected here to a greater penalty than the laws of the country where the offence was perpetrated, in such case inflicted. The crime must be viewed retrospectively. Scotland, for the purposes of the present argument, stood in the same political relation towards England in 1763, as Delaware now stands towards Pennsylvania. They were different kingdoms, gov- erned by distinct laws, but were united under one common head for national defence, and in support of their general interests. The case of Rex v. Anderson et al. fully established the law, that antecedent to the stat. of 13 Geo. 3, ch. 31, where a felony was committed in Scot- land, and the stolen articles were brought by the felon into an English county, he could not be tried in such county. It of course settled the principle contended for by the counsel of the plaintiff in error, respecting goods stolen in one county and carried into another, that it relates merely to the jurisdiction of different courts acting under the same authority, and governed by the same rules. The reasons of the judges are not detailed in the report of the case in 2 East's Cro. Law, 772, but most probably they are of the nature I have already mentioned. It appears that the case was heard first at Carlisle sum- mer assizes, 1763, before Gould, Justice, and afterwards before all the judges of England in November following. The stat. of 13 Geo. 3, ch. 31, was referred to in Respublica v. An- drews, but this case was most proba'bly overlooked. It is impossible to suppose that it was cited, when we advert to the expressions of Parker and Sedgwick, Justices. The latter, in 2 Mass. T. R. 20, says : "All that can be inferred from the stat. of 13 Geo. 3, ch. 31, is, that there were doubts or different opinions on the question. If there had been a decision against the jurisdiction, it would not have been said that doubts existed, but that the law needed alteration." The principle upon which the case of Anderson et al. was decided, most strongly influences my mind in this instance. I cannot distin- guish between them. If evils or inconveniences result from the doctrine I have laid down, the legislature alone can furnish an LEADING CRIMINAL CASES. 219 Larceny — Bringing stolen Property into the State. adequate remedy. My opinion is, that the judgment of the mayor's court be reversed. At the same time I much approve of what was done in New York in the case of Schenck ; that the prisoner should be detained in jail a reasonable time, and notice thereof be given to the executive of Delaware, and if he should not be demanded within that period, that he should then be discharged. Brackenridge, J. It is .laid down simply and correctly, 2 East's Crown Law, 771, "that the possession of 'goods stolen by the thief, is a larceny in every county into which he carries the goods, because the legal possession still remaining in the true owner, every moment's continuance of the trespass and felony, amounts to a new caption and. asportation." On which I observe, that it is not because it is a continuance of the trespass committed in another county, but because it constitutes of itself an original and independent trespass. The question of actual possession, originally in the owner, comes in only by way of evidence of property, and puts it upon the accused to show how he came by the goods. It is the having the goods which I prove mine, and the having them animo furandi, a principal badge of which is concealment, that grounds a charge of felony, and subjects to the jurisdiction of the county in which the thief is found to have had the goods. It is on this principle alone of a new and independent trespass, that the jurisdiction of another county into which the goods are carried can be supported. For though evidence is admitted of actual possession in another county, yet it must be of a larceny in the proper county where the prosecution is, that a conviction can take place. But will evidence be admitted of actual possession in a foreign country, in order to support the constructive or legal possession necessary to constitute the trespass and felony in that to which the goods may be carried? I am not able to say why it should not. In that case a foreigner whose property has been taken beyond sea, and finding it in the hands of an English thief, might prosecute and convict. I can see no rule of general convenience or public policy why he should not. But we hear nothing in the English books of persons convicted for clandestinely taking goods in other countries, and stealing them by carrying them into England. It may be that the English courts have not carried out the principle so far as to admit such evidence, had it been offered in any. case. But there would seem no good reason why it should not be carried out in our country towards sister States; not that such a case strengthens the principle, but justifies the application. The being under one general government does not strengthen the princi- ple, for that general government has no common law in this case, nor draws to it the common law of a State in this particular ; but it is a 220 LEADING CRIMINAL CASES. Larceny — Bringing stolen Property into the State. reason of expediency and common utility, that the principle should be carried out in the application of it in the case of stolen goods brought by the thief from one State into another. Bach neighboring State would otherwise become a receptacle of stolen goods brought into it. Suppose an act of assembly to pass, that, in the case of stolen goods brought into this State from another, the thief might be prosecuted as for a larceny committed here. On what principle would this be, but that he might be considered as committing a larceny in this State, by that deprivation of possession which the true owner had sustained. I speak of the actual possession, and by that touch and handling of the goods, the contrectatio rei alienee animo furandi, as Bracton expresses it. The exercising an act of ownership over such goods, with evidence of concealment and intention to steal, would make it a larceny within the State as to goods brought into the State, the legal or constructive possession still remaining in the original owner, and the law protecting that right. For "in the case of a personal chattel, the possession in law follows the right of property." 2 East, 573. The moment that the true owner comes into the State, following the goods stolen, his right of posses- sion attaches within the Commonwealth, and the law will protect such property. It will punish the trespasser. It will give him an action of trover and conversion, where it is a trespass and bare keeping from him. Why not support a prosecution for a felony, where the contrectatio animo furandi exists ? It is no argument against this, that goods obtained by theft at sea, and afterwards carried into some county, are not the subject of the common law jurisdiction, for this is an exception to the general rule. 2 East, 772. It is because the admiralty jurisdiction draws it dd aliud examen. A distinct tribunal is constituted for such offences. It is the same in this country. But for goods feloniously taken and brought from one State into another, there is no such tribunal. Nor can it be necessary that the goods be feloniously taken in the other State; for if they be obtained by a trespass and brought into the State, and there be a concealment here animo furandi, the law, if we are correct, would make it a felony and prosecute it as such. I admit that an implica- tion arises from the absence of cases, or the silence of reporters, that in England the common law did not protect the legal or constructive possession, where the actual possession had not existed under the protection of that law. And the exception would seem to be recog- nized by the law as it respected Scotland before the union, and even after the union doubts would sdem to have been entertained. The same exception prevailed till lately, where the original taking was in Scotland. 2 East's Crown Law, 772. " It was ruled that a felon in such case could not be indicted in Cumberland, where he was taken LEADING CRIMINAL CASES. 221 Larceny — Bringing stolen Property into the State. with the goods." But I recur to the principle, and lay aside the exception where there is no good reason for it. It is not what has been done, but what can be done consistent with principle, that I look to. There is no implication contrary to this from the provision of the Constitution of the United States, art. 4, § 2, " that a person charged in any State with treason, felony or other crime, who shall flee from justice, and be found in another State, shall on demand of the execu- tive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime." Because even in this case the owner of the stolen goods ought still to have his election to have the thief back, or to prosecute him here, if having taken the goods with him, and continued the felony, or as I would say, committed the felony de novo within our jurisdiction, he has put it in the power of the owner so to do. On the argument of this case, there has been a reference to the understanding of the law from the usage on this subject. But I do not recollect that instances were produced of a prosecution for goods stolen in a neighboring State, and brought here. Nevertheless it is so consonant with principle and general convenience, — what is mote, with the safety of the community in keeping thieves and stolen goods out of the State, that I will not hesitate to sanction the doc- trine, that a thief bringing his stolen goods here, may be prosecuted as committing a theft here, and guilty of an offence against the peace and" dignity of this Commonwealth. If the owner of goods taken in another State, and coming here, could not prosecute for a felony, neither could he maintain trespass, for that supposes a possession. He must allege a finding by the thief, and bring his action after demand made. If the thief is taken back to the State where he took the goods, and it is even made a part of his sentence on conviction, that he shall restore the goods, yet he has not the goods to restore, for they are in the State to which he carried them, and there he must be considered as having a right to detain them, so that they could not be brought forward at the trial to establish the identity and prove the theft. For though the executive of another State would be author- ized to demand the thief, he could have no authority by the clause of the constitution to add a duces tecum of the goods stolen. The principal thing that I find in the way of my doctrine from the English books, is the reason given, that "where one stealeth goods in one county and, brings them into another, there he may be indicted of felony in any of the counties, because the original act was felony, whereof the common law taketh knowledge." 13 Coke, 53. But this is applying the reason of another case to the present one, viz. : that "larceny of goods at sea brought into a county," could not be 19* 222 LEADING CEIMINAL CASES. Larceny — Bringing stolen Property into the State. tried there, because the jurisdiction of the admiralty court had attached by the original taking, and the cognizance of any after act could not be taken by the common law. But in no other case except that of larceny, can there be a question about the jurisdiction of a county, where the offence was committed, though under the same common law, and the punishment the same. " All crimes are local, and must be tried where committed." In the case of robbery, there can be no relation to the act begun, to give that county jurisdiction. The locality must be where the crime was consummated. This overthrows all notion of the reason being because the offence was under the same common law. I refer to Holt, C. J., 11 Mod. 12. One county is as distinct from another, as one country from another, in respect of the right of jurisdiction. Personal actions follow the person, and there is a fiction of the contract being in the county where the person is ; but trespass quare clausum f regit must be in the- county where the trespass was committed. And there is no fiction in a criminal case so as to give jurisdiction. Upon what principle then but that of considering the having goods in one county and exercising, so to speak, the stealth over them, can give that county jurisdiction? By the ancient law, " all offences were said to be done against the peace of the county ; contra pacem vice comitis." 1 Black. 117. And though Alfred, to keep within the bounds of the universal or common law, gave the control to the king's own courts, in conse- quence of which offences were laid to be contra pacem domini regis,- yet still it remained a principle, " that the trial of all causes civil and criminal must be in the very district where the cause of complaint arose." 4 Black. 411. Fiction in civil cases, as has been said, has dispensed with this as to actions purely personal, but in criminal never. I therefore recur to the position which I think I have established, that it is not the carrying into another county the goods stolen, but the being considered as stealing in the new county the goods carried, that gives jurisdiction. What difference does it make where it is a new county into which they are carried ? Supposing it not to have been within the policy of the courts of England to extend this prin- ciple to goods taken in another country, say Scotland, Ireland, or even France, and the larceny continued under the jurisdiction of the common law, yet it would be a matter of great inconvenience to restrict the cognizance in such manner between one of these states and another separated by no sea, but a narrow river, or ideal boun- dary, so easily passed or repassed in the asportation from one to another. And I say that no act of the legislature would do more than in affirmance of a principle, and as in the Scotch case "to remove doubts." For the common law of Scotland is not the com- LEADING CRIMINAL CASES. 223 Larceny — Bringing stolen Property into the- State. mon law of England, nor the mode of trial or punishment of crimes the same. The being therefore under the same common law, could have made no part of the reason of one county attaching the juris- diction of a larceny, because a larceny of the same goods had been first committed in another county. An act of assembly is out of the question. For it could not provide that an act should be stealing where it was not, which would be the case, unless carrying stolen goods into the State was stealing within the State. As to an act providing that the bringing stolen goods into the State should be punishable, it would be a novel kind of misdemeanor, and of which we hear nothing in the intercourse of England with Ireland, or with other countries. It would involve all the necessity of establishing the prior stealing, which would draw with it what was stealing in other countries. In that case the common or statute law of that country must come into view. No law of this State, however framed, could be made to reach in the shape of a prosecution for a felony, the bringing goods into the State. It would be made a misdemeanor only. I say no law could make it felony but in affirmance of the principle which I have laid down, that the concealing stolen goods within the Commonwealth is a stealing, and against its peace and dignity. I incline therefore to support the prosecution. Judgment reversed. The court at the same time directed the prothonotary to commu- nicate the case of the prisoner to the executive of Delaware ; and made an order for his discharge in three weeks, unless in the mean time a demand should be made agreeably to the Constitution of the United States. Whether an indictment for larceny can Simpson v. The State, 4 Humphreys, 456 ; be supported, where property is originally The State v. Brown, Haywood, (North stolen in one of the United States, and Carolina,) 100 ; The State v. Knight, Tay- carried into another State, where the in- lor, 65 ; and in two early cases in New dictment is found, is a question upon York ; The People v. Gardner, 2 Johnson, which the cases are in conflict. In Mas- 477 ; The People v. Schenck, 2 Johnson, sachusetts, Connecticut, Ohio, and Mary- 479. But in the latter State the rule has land, such indictments have been sus- since been changed by statute, upon which tained. Commonwealth v. Cullins, 1 Massa- the case of The People v. Burke, 1 1 Wen- chusetts, 116 ; Commonwealth v. Andrews, dell, 129, was decided. A similar statute 2 Massachusetts, 14 ; Commonwealth v. has been passed in Alabama. The State Rand, 1 Metealf, 475 ; Rex v. Peas, 1 v. Seay, 3 Stewart, 123 ; Murray v. The Root, 69; The State v. Ellis, 3 Connecti- State, 18 Alabama, 727. cut, 1 85 ; Hamilton v. The State, 1 1 Ohio, In Vermont, it has been decided, that one 435 ; Cummings v. The State, 1 Harris & who steals property in Canada, and brings Johnson 340. On the other hand, the it into that State, may there be tried and doctrine of the principal case has been convicted of the larceny. The State v. held in Tennessee and in North Carolina; Bartlett, 11 Vermont, 650. In Regina v. 224 LEADING CRIMINAL CASES. Larceny — Bringing stolen Property into the State. Prowes, 1 Moody, C. C. 349, (1832,) it was held, that if a larceny be committed out of the kingdom, although within the king's dominions, that the bringing the stolen property into the kingdom, would not con- stitute a larceny there. In this case the indictment charged the prisoner with steal- ing at Dorchester, in the county of Dorset, a quantity of wearing apparel, the prop- erty of Thomas Cundy. The things had been taken by the prisoner from a box of the prosecutor's at St. Helier's, in the island of Jersey, while the prosecutor was absent at his work at a short distance, and without his leave ; they were shortly afterwards found in the possession of the prisoner at Weymouth, in the county of Dorset, where he had been apprehended on another charge. A doubt occurred whether the original taking was such whereof the com- mon law could take cognizance ; and, if not, whether the case fell within the stat- ute 7 & 8 Geo. 4, ch. 29, § 76 ; or, in other words, whether the island of Jersey could be considered as part of the united king- dom. 2 Russell, 1 75. If the original tak- ing be such whereof the common law can- not take cognizance, as if the goods be stolen at sea, the thief cannot be indictsd in any county into which he may carry them. 3 Institutes, 1 1 3 ; 1 Hawkins, 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, Koveniber, 1763, 2 East, P. C. 772, ch. 16, § 156. This case was considered at a meet- ing of all the judges, (except Lord Lynd- hurst, C. B., and Taunton, J.,) in Easter term, 1832; and they held unanimously, that the conviction was wrong, and that the ease was not within 7 & 8 Geo. 4, ch. 29, § 76. In Regina v. Madge, 9 Carrington & Payne, 29, (1839), Parke, B., held, that a person who steals goods in France, can- not be tried in England for the offence, although he has the stolen property in his possession there. The learned judge said, that it had been intimated to him that some of the judges had expressed a wish to have the case of Rex v. Prowes recon- sidered, and that in consequence of this, the lord mayor had committed the pris- oner; but if it was not so, he should act upon the authority of that case. Having caused a communication to be made to the lord mayor, upon the subject, and having received his answer, he directed the prisoner to be brought up and the jury to be charged with the indictment. After- wards, he said that the lord mayor had not committed the prisoner for trial in conse- quence 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 acquitted, 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 pro- vision on the subject. The prisoner was accordingly acquitted. It is a leading principle in the law of larceny, that the possession of goods stolen by the thief is a larceny in every county into which he carries the goods ; because, the legal possession still remaining in the true owner, every moment's continuance of the trespass and felony amounts, in legal consideration, to a new caption and asportation. Commonwealth v. Dewilt, 10 Massachusetts, (Rand's ed.) 153 ; Com- monwealth v. Rand, 7 Metcalf, 475; The Stale v. Somerville, 21 Maine, 14, 19 ; The Slate v. Douglass, 17 Maine, 193; Com- monwealth v. Cousins, 2 Leigh, 708. And this rule applies as well to property which is the subject of larceny by statute, as to property which is the subject of larceny by the common law. Commonwealth v. Rand, ubi suprS,. See iter \. Millar, infra. The lapse of time between the first taking and the carrying into another county is not ma- terial. In Rex v. Parkin, 1 Moody, C. C. 45 ; 1 Lewin, C. C. 316, the prisoner stole a note in Yorkshire, on the fourth of No- vember, 1823, and on the seventeenth of March, 1824, brought it into the county of Durham, and there endeavored to utter it ; at the trial before Bailey, J., in the LEADING CRIMINAL CASES. 225 Larceny — Bringing stolen Property into the State. latter county, for the offence, the judge doubted whether, considering the long in- terval between the theft and the bringing the note into Durham, this could properly be deemed a felony in the county of Dur- ham, and reserved the point for the consid- eration of the judges. They were clearly of opinion, that the interval between the first taking and the carrying the note into Durham, did not prevent the offence from being a larceny in Durham. See Com- monwealth v. Rand, 7 Metcalf, 475, 476. But this rule is limited to simple lar- ceny; for if it be a compound offence, as stealing from a store or dwelling-house, or if it be a robbery from the person, that offence must be laid and proved in the county where the store or house was situated, or where the person was robbed. Rex v. Thompson, 2 Russell, Crim. Law, 174; Archbold, Crim.Pl. (London ed. 1853,) 27 ; 3 Greenleaf, Ev. § 152. And if the nature of the property be changed, an indictment for stealing the article in its original state cannot be preferred in the county into which, when so changed, the property is carried. Thus, where a brass furnace, stolen in one county, was there broken in pieces, and the pieces were carried into another county, in which latter county the prisoner was indicted for lar- ceny of a brass furnace there, he was acquit- ted for a variance ; for it was not a brass furnace,but only broken pieces of brass that he had in that county. Rex v. Halloway, 1 Carrington & Payne, 127 ; Rex v. Ed- wards, Russell & Ryan, C. C. 497. Nor, where several commit a joint felony in the county of A., and there divide the . goods, and afterwards separate, each carry- ing his respective share into the, county of B., can they be indicted for a joint fel- ony in the latter county. Rex v. Barnet, 2 Russell, Crim. Law, 1 74. But where goods are stolen by two persons in the county of S., and are carried by one of them into the county of C, and afterwards the other follows into the county of C, and there unites in the custody and disposal of the goods, both are guilty of larceny in the latter county. Commonwealth v. Dewitt, 10 Massachusetts, (Rand's ed.) 153; Rex v. County, 2 Russell, Crim. Law, 175. The taking into the second county, must be animo furandi ; the mere possession there is not sufficient. Where a constable took the defendant, with two stolen horses, in Surrey, and, afterwards, at his request, rode with him on the horses into Kent, where he escaped, and the defendant being after- wards indicted in Kent, the judges wera unanimously of opinion, upon a case re- served, that there was no evidence of stealing in Kent. Rex v. Simmonds, 1 Moody, C. C. 408. As another qualification of the general rule, it is to be noticed, that if the original taking be one of which the common law cannot take cognizance, as if the goods be stolen at sea, the thief cannot be indicted for the larceny in any county into which he may carry the goods, but the larceny must be tried, as other cases, within the jurisdiction of the admiralty. See Com- monwealth v. Rand, 7 Metcalf, 476. Where the defendant ripped lead from a church in Buckinghamshire, and, afterwards, hav- ing it in his possession in Middlesex, was indicted in the latter county for a simple larceny at common law, it was held that such indictment could not be sustained, the latter offence not.being a larceny at common law, the original offence of steal- ing the lead being a statutable felony only ; for things real, or which savored of the realty, are not the subjects of larceny at common law. Rex v. Millar, 7 Carrington & Payne, 665, and note. . See Rec/ina v. Gooch, 88 Carrington & Payne, 293 ; Com- monwealth v. Rand, ubi supra. H. 226 LEADING CRIMINAL CASES. Indictment — Variance of Proof of two Persons of the same Name. The King v.. Peace. 1 May 8, 1820. Indictment — Variance by Proof of two Persons of the same Name. Upon an indictment for an assault upon E. E., it is sufficient to prove that an assault was committed upon a person bearing that name, although it appear that two persons bore the same name, E. E. the elder and E. E. the younger. The defendant was indicted for an assault and battery, stated on the record to have been upon the person of Elizabeth Edwards. Plea, not guilty. At the trial at the last spring assizes for the county of Hereford, before Holroyd, J., it appeared that there were two persons, a mother and a daughter, both of the name of E. E., and that, in point of fact, the assault had been committed on the daughter. It was objected, at the trial, that this proof varied from the indictment, inasmuch as E. E. must be presumed to be E. E. the elder. The objection was overruled, and the defendant convicted ; and now, the defendant being brought up for judgment W. E. Taunton renewed his objection. In Lepiot v. Broipn, 1 Salk. 7, it was held, that if father and son are both called A. B.,by naming A. B., the father prima* facie shall be intended. So in Wilson v. Stubbs, Hob. 330, the court said, that one being named Ralf Stubbs, without addition, should never be accounted the younger, but the elder of the two of that name. Here the objection is, to the descrip- tion of the prosecutrix, the person against whom the offence has been committed. There are two persons bearing the name of Elizabeth Edwards; and.the person, therefore, in the indictment, must be taken to be the elder. And he cited Hawk. P. C. vol. 3, tit. Appeals, § 106 ; and Vin. Abr. vol. 14, tit. Indictment, n, 15, 16, 17. Per Curiam. The crime charged in the indictment has been proved. For it is stated, that the defendant committed an assault on Elizabeth Edwards, and that has been proved. It is not absolutely necessary that the indictment should specifically describe the indi- vidual on whom the assault was, for otherwise an indictment would be bad, which charged that the assault was committed on a person to the jurors unknown. The question here is,* not whether the party assaulted has been rightly described, but who the party is who is 1 3 Barnewall & A'' 1 " LEADING CRIMINAL CASES. 227 Indictment — Variance of Proof of two Persons of the same Name. described in the indictment as having been assaulted. Here that has been sufficiently proved. The objection, therefore, is not sus- tainable. , Judgment for the Crown. In The State v. Vittum, 9 New Hamp- shire, 519, the indictment alleged that the defendant committed adultery with one L. W., without any further designation. It appeared that there were in that town two individuals of that name, father and son, and that the son used the addition of "junior" to his name, and was thereby well known and distinguished from his father. It was held, that the defendant had the right to understand that the of- fence was charged to have been committed with the father, and that evidence of adul- tery with the son was not admissible in evidence. In Hodgson's case, 1 Lewin, C. C. 236, (1831,) the prisoner was in- dicted for stealing a horse, the property of Joshua Jennings. It appeared in evidence, that the horse was the property of Joshua Jennings, the son of Joshua Jennings, the father. For the prisoner, it was objected, that the person named in the indictment must be taken to be Joshua Jennings the elder. But Parke, J., on the authority of Rex v. Peace, overruled the objection. The same point was afterwards ruled on the same authority in Bland's case, York Summer Assizes, (1832,) by Bolland, B. See 1 Lewin, C. C. 236. In a recent case in Maine, the same objection was taken as in Hex v. Peace, and overruled. The Stale v. Grant, 22 Maine, 171. In this case, which was an indictment for lar- ceny, the property charged to have been stolen was alleged to have been " the property of one Eusebius Emerson, of Addison, in the county of Washington." The evidence was, that there were, in that town, two persons, father and son, and that the property belonged to the son, who had usually written his name with the word "junior " attached to it. And it was held, that junior is no part of a name, and that the ownership, as alleged in the indictment, was sufficiently proved. In an indictment for perjury, a suit in the Ecclesiastical Court was stated to have been depending between A. B. and C. D. The proceedings of the suit, when pro- duced, were between A. B. and C. D. the elder, and it was held that there was no variance. Rex v. Bailey, 7 Carrington & Payne, 264. In this case, Williams, J., refered to a manuscript case before Law- rence, J., where it was alleged, that there was an indictment against A. B. and C. D., at a former time, and, on the record -being produced, it appeared that it was an in- dictment against A. B. and C. D., the younger, and the variance was held to be fatal. In assumpsit, on a promissory note made by the defendant, payable to A. B., and indorsed by A. B. to the plaintiff, it appeared that there were two persons of the same name, father and son, and there was no evidence to show to which of them the note had been given ; but it appeared that the indorsement was in the hand- writing of A. B. the son. It was held, that although prima facie the presumption that A. B. the father was meant, that pre- sumption was rebutted by the son's in- dorsement. Stebhing v. Spicer, 8 Common Bench R. 827. Where an indictment alleged an assault on T. A., a deputy sheriff, and an obstruct- ing of him in the performance of his du- ties as such, proof that the person, on whom the assault was committed, was commissioned as a deputy sheriff, by the name of T. A., junior, is not a variance. Commonwealth v. Bechley, 3 Metcalf, 330. To support the indictment, said Wilde, J., it must have been proved that the person named therein, and in the commission, was one and. the same person ; and after verdict it must be presumed that it was so proved. The defendant's crfunsel rely on the decision in Boyden v. Hastings, 17 Pickering, 200. But the cases differ. There the plaintiff undertook to describe the rec- ord of a judgment, and did not describe it correctly. Not so in the present case. The indictment does not allege by what 228 LEADING CKIMINAL CASES. Rape — Evidence — Character of Prosecutrix. name and addition Adams was commis- could not be cured by proof that the sioned as deputy sheriff. There is, there- note was given to him, by the name of A. fore, no error of description. In the B., junior ; but he must amend his dec- former case, there was a mistake in the laration, as was done irf Boyden v. Hast- declaration. It was a question as to the ings. But suppose in the like ease, such pleadings. In the present case, it is merely a note is offered in evidence in an action a question of proof. Suppose an action is for money had and received ; then the brought in the name of A. B., and there plaintiff may prove that the note was given is a special declaration on a promissory to A. B., by the name and addition of A. note, as payable to him, and a note is B., junior ; which is alike in principle to offered in evidence, payable to A. B., the present case. See Kincaid v. Howe, 10 junior, that would be a variance which Massachusetts, (Rand's ed.) 203. H. Rex v. Hodgson. 1 December 2, 1811. Rape — Evidence — Character of Prosecutrix. Upon an indictment for a rape, the woman is not compellable to answer whether she has not had connection with other men or with a particular person named ; nor is evidence of her having had such connection admissible. The prisoner was tried and convicted before Mr. Baron Wood, at the Yorkshire summer assizes,. in the year 1811, on an indictment for committing a rape upon Harriet Halliday, spinster. After the girl had given her evidence in support of the prosecution she was cross-examined by the prisoner's counsel, who put these questions to her : — Whether she had not before had connections with other persons ? and whether she had not before had conection with a particular per- son 1 (named.) The counsel for the prosecution objected that she was not obliged to answer these questions ; but it was contended by the prisoner's counsel, that in a case of rape she was. The learned judge allowed the objection, on the ground that the witness was not bound "to answer these questions, as they tended to criminate and disgrace herself, and said that he thought there was not any exception to the rule in the case of rape. The prisoner's counsel called witnesses, and, among others, offered a witness to prove that the girl had been caught in bed about a year 1 Russell & Ryan, C. C. 211. LEADING CRIMINAL CASES. 229 Kape — Evidence — Character of Prosecutrix. before this charge with a young man, and offered the young man to prove he had connection with her. The counsel for the prosecution objected to the admissibility of this sort of evidence of particular facts, not connected with the present charge, as they could not come prepared to answer them. The learned judge allowed the objection, and the witnesses were not examined. The prisoner was found guilty ; but the judgment was respited and these points saved for the consideration of the judges. On the 2d of December, 1811, this case was considered by all the judges, (except Mansfield, C. J., Macdonald, C. B., Grose, J., and Lawrence, J., who were absent,) and was postponed for consideration- to Hilary term, 30th January, 1812, when all the judges being present, they determined that both the objections were properly allowed. On the trial of an indictment for a rape, where an immediate account is given, or complaint made, the fact of making the complaint immediately, and before it is likely that any thing should have been contrived and devised by the prosecutrix, is admisssible as evidence to confirm her story. But the particulars are not evi- dence of the truth of her statement, and cannot be asked in her examination in chief, or proved by other testimony. Rex v. Clarke, 2 Starkie, R. 241 ; Regina v. Walker, 2 Moody & Robinson, 212; Re- gina v. Guitridge, 9 Carrington & Payne, 471 ; The People v. McGee, 1 Denio, 19; Stephen v. The State, 11 Georgia, 225 ; Johnson v. The State, 17 Ohio, 593; Laughlin v. The Stale, 18 Ohio, 99. In Regina v. Osborne, Carrington & Marsh- man, 622, it was ruled, that a witness to whom the prosecutrix made a complaint, may be asked whether she named a person as having committed the offence, but not whose name she mentioned. In Phillips v. The State, 9 Humphreys, 246, it was distinctly held, that her narra- tive of the circumstances and particulars is admissible in evidence. And in Scot- land, in cases of rape, this privilege on the prosecutor's part, of confirming the testi- mony of the sufferer by the witnesses to whom she has, de recenti, narrated the transaction, has, in an especial manner, been established. Farther, if the woman produce to those to whom she makes the 20 disclosure, one article of the assailant's dress, as a sleeve-button, a portion of his neckcloth, or the like, whereby the person who made the assault can be discovered, what is said on this occasion may be com- petently given in evidence to confirm her testimony. These principles have been frequently exemplified in practice. In the case of James Mc Cartney and James Mc- Cummings, Glasgow, April, 1828, where rape, followed by cutting and stabbing the woman ravished, was charged, the account which she gave when she returned home bleeding early in the morning, of the way in which she had been used by the pan- nels, was allowed to be fully laid before the jury by the person to whom it was told, though she had just before been examined herself. The same was done in another case, where the girl assaulted was only eight years old, and she had, de recenti, . disclosed the particulars of the rape to her mother, at the same time that she had exhibited the consequences of the injury on her person. And, in another instance, where the pannel was charged with rav- ishing a full grown woman, the account which she gave of the transaction to dif- ferent witnesses the next day, was laid without reserve before the jury. But this privilege is extended to those accounts only, which are connected more or less directly with the res gestoz of the injury, or which were so recently given after it, as to form, in some sort, a sequel to the 230 LEADING CRIMINAL CASES. Eape — Evidence — Character of Prosecutrix. actual violence. Alison's Criminal Law of Scotland, 514, 515. As evidence of recent complaint, which is no part of the res gestae, is received to confirm the evidence of the prosecu- trix, where she is not a witness in the case, such evidence is wholly inadmissible. The People v. McGee, 1 Denio, 19; Re- gina v. Nicholas, 2 Carrington & Kirwan, 246 ; 2 Cox, C. C. 136 ; Regina v. Gutt- ridge, 9 Carrington & Payne, 471. In Regina v. Guttridge, it was proposed to ask a witness whether the party ravished, who was not at the trial, did not make a complaint to her. Parke, B., said : " In Brazier's case, 1 East, P. C. 443 ; 1 Leach, C. C. (4th London ed.) 199, the child who was attempted to be ravished was only five years old, and incapable of taking an oath ; and it was there held, that the com- plaints which she made to her mother and another woman on her coming home, were receivable in eviden.ce, as she herself was not heard on oath. What a man says, as complaint to his surgeon, is evidence. I think the safest course will be to reject the evidence, as it is not part of the res gestce, but merely confirmatory evidence. At the time of Brazier's case, (1779,) it seems to have been considered that, as the child was incompetent to take an oath,'what she said was receivable in evidence. The law was not so well settled then as it is now. In Rex v. Clarke, 2 Starkie, R. 241, which was an indictment for an assault with intent to commit a rape, it was held, that the defendant might impeach the char- acter of the prosecutrix, for chastity, by general evidence, but not by evidence of specific acts. Holroyd, J., said : It is clear that no evidence can be received of par- ticular facts, and such evidence could not have been received although the prosecu- trix had been cross-examined as to those facts, because her answers upon those facts must have been taken as conclusive. With respect to such facts the case is cleaf. Then, with respect to general evidence, such evidence, it has been held, is admis- sible in all cases where the character is in issue, and, therefore, the only question is, whether the character of the prosecutrix is involved in the present issue. In the case of an indictment for a rape, evidence that the woman had a bad character pre- vious to the supposed commission of the offence, is admissible; but the defendant cannot go into evidence of particular facts. This is the law upon an indictment for a rape, and J am of opinion, that the same principles apply to the case of an indict- ment for an assault with intent to commit a rape. But in Rex v. Martin, 6 Carring- ton & Payne, 562, (1834,) which was an indictment for a rape, it was proposed, in behalf of the prisoners, to ask the prosecu- trix whether, on the Whitsunday before the alleged offence, the prisoner, Aaron Martin, had not had intercourse with her by her own consent. Williams, J., said : I was one of the counsel in the case of Rex v. Hodgson. The question in the present case is as to previous intercourse with the prisoner, and the question there was as to intercourse with other men. I shall cer- tainly receive the evidence, and I must say that I never could understand the case of Rex v. Hodgson. The doctrine, that you may go into general evidence of bad char- acter in the prosecutrix, and yet not cross- examine as to specific facts, I confess does appear to me to be not quite in strict accordance with the general rules of evi- dence. And in Rex v. Aspinwall, 2 Star- kie, Ev. 700, Hullock, B., held, that on a trial of an indictment for a rape, the pris- oner might show that the prosecutrix had been previously, criminally connected with himself. The same doctrine was also re- cognized in The People v. Abbot, 19 Wen- dell, 192. Where the prisoner was indicted for a rape, his counsel proposed to put the following questions, with a view to contra- dict the prosecutrix : Were you not, on Friday last, (since the time of the alleged offence,) walking in the High Street of Oxford, to look out for men ? and were you not, on Friday last, walking in the High Street with a woman reputed to be a com- mon prostitute ? And it was held by J. Parke, and Park, J. J., that they were proper questions. Rex v. Barker, 8 Car- rington & Payne, 589, (1829.) In a very late case, where the prisoners were in- dicted for a rape, their counsel submitted flint lip wn« nt*. liTiprf-v in frivo ironovnl ovi. LEADING CRIMINAL CASES, 231 Eape — Evidence — Character of Prosecutrix. dence of the character of the prosecutrix, but not particular acts. Patteson, J., at first seemed to think the evidence was in- admissible, but on referring to the author- ities, said: In Rex v. Barker, ubi supra, the question was allowed to be put as to whether the prosecutrix had walked the streets of Oxford at a period subsequent to the alleged rape. I cannot understand why that should be. I should have thought the question would more properly refer to the conduct of the prosecutrix before the act she complained of. However, upon the authority of that and two or three other cases very like the present, I will allow the general evidence to be given. Regina v. Clay, 5 Cox, C. C. 146, (1851.) In The People v. Abbot, 19 Wendell, 192, after a review of the* authorities, it was held, that on the trial of an indictment containing two counts, the one charging a rape, and the other an assault with an in- tent to commit a rape, that the inquiry might be made whether she had had pre- vious connection with other men, and that evidence of particular' acts indicating a want of chastity, is admissible. To the same effect is The Stale v. Jefferson, 6 Iredell, 305. In Regina v. Robins, 2 Moody & Rob- inson, 512, (1843,) which was an indict- ment for a rape, it was held that if, on cross-examination, the prosecutrix deny having had intercourse with other men than the prisoner, those men may be called to contradict her. The prosecutrix denied, on cross-examination by counsel for the prisoner, that she was acquainted, or had had connection with several men who were named, and who were brought into court and shown to her at the time she was ques- tioned. These persons were called to prove that they were acquainted with her, and had had such connection. Coleridge, J., after'consulting Erskine, J., said, that neither he nor that learned judge had any doubt on the question. It is not immate- rial to the question whether the prosecu- trix has had this connection against her consent, to show that she has permitted other men to have connection with her, which on her cross-examination she has denied. See also The People v. Abbot, 19 Wendell, 199, 200. ' • The doctrine that the character of the prosecutrix must be impeached by gen- eral evidence of her reputation in that respect, and not by evidence of particular acts of unchastity, has been amrmea in several cases. The State v. Jefferson, 6 Iredell, 305. See Camp v. The State, 3 Kelly, 417. The want of chastity generally cannot be admitted to discredit a female witness. Commonwealth v. Churchill, 11 Metcalf, 538, overruling Commonwealth v. Murphy, 14 Massachusetts, (Rand's ed.) 387. Ift this case, Shaw, C. J., said : The only re- ported case in which it has been held that such evidence is admissible, is Common- wealth v. Murphy, ubi supra. It was a decision made in the course of a capital trial, and probably without much time for deliberation or reference to authorities. It was followed with some doubt and hesita- tion in a few other cases not reported. It is referred to in Commonwealth v. Moore, 3 Pickering, 196, and spoken of in relaxa- tion of the general rule, which confines the impeaching testimony to the general character of the witness for veracity. We consider it as a deviation from the estab- lished rule of the common law on the sub- ject. It has been regarded by judges of this Commonwealth with disapprobation, and *has not been adopted by the courts of other States. See Jackson v. Lewis, 13 Johnson, 504 ; Bakeman v. Rose, 14 Wendell, 105; 18 Wendell, 146 ; The People v. Abbot, 19 Wendell, 198 ; Morse v. Pineo, 4 Vermont, 281 ; The Stale v. Smith, 7 Vermont, 141 ; Spears v. Forrest, 15 Vermont, 435. It is not required by any other considerations of fitness or expediency, and cannot be regarded as having acquired the force of a settled rule of law. H. 232 LEADING 8RIMINAL CASES. Eape — Consent — Carnal Connection by Fraud. Regina v. Richard Clarke. 1 November 11, 1854. Rape — Consent — Carnal Connection under circumstances which induce the woman to believe that the man is her husband. If a married woman assents to carnal connection with a man, under the belief that he is her husband, the man cannot be convicted for rape. The following case was stated) for the opinion of this court, by Crowder, J. : — Richard Clarke was tried before me at the last York assizes, on the 16th July, 1854, on an indictment charging # him in the usual form with committing a rape on the person of Jane Murgatroyd, the wife of John Murgatroyd. It appeared in evidence that Jane Mur- gatroyd went to bed at half-past nine o'clock in the evening, leaving the outer door of her house unfastened, in the expectation of her hus- band's return home. Having fallen asleep, she was awakened at about half-past two o'clock by a man, whom she (believed to be her husband, passing over her and getting into bed on the opposite side from that on which she was lying. She then fell asleep again ; and in about ten. minutes was awakened by the man in bed with her drawing her towards him and having connection with her. She assented to the connection in the belief that the man was her hus- band. She afterwards fell asleep again and awoke in about twenty minutes, and then first discovered tha± the man in bed with her was the prisoner at the bar, who, as soon as he found himself detected, jumped out of the bed and went away. The jury found the prisoner guilty ; but they found also that'-when he entered the bed of Jane Murgatroyd, he intended to have connection with her fraudulently, but not by force, and, if detected, to desist ; whereupon I respited the sentence, reserving for the opinion of the Court of Criminal Ap- peal the question whether, upon the above state of facts and finding of the jury, the prisoner is entitled to an acquittal. R. B. Crowder. No counsel was instructed on behalf of the prisoner. R. Hall appeared for the crown. 1 6 Cox, C. C. 412. LEADING CRIMINAL CASES. 233 Rape — Consent — Carnal Connection by Fraud. Jervis, C. J. How can you -get rid of the authority of Rex v. Jackson, (Russ. & Ry. 487.) Hall. The question, is, whether that can be supported ? Crowdek, J. I reserved this case, because it is stated in the re- report of Rex v. Jackson, that several of the judges, who held that the offence was not rape, intimated that if the case should occur again, they would advise the jury to find a special verdict. Hall. The opinion of the judges in that case was not unanimous. Four thought the prisoner guilty of rape ; though eight judges held the contrary. The facts are not distinguishable; because there the jury found that the prisoner intended to have connection with the woman if he could pass as her husband, but not to force her if she discovered the fraud ; and being indicted for burglary with intent to commit a rape, he was held entitled to an acquittal. That decision has been followed in subsequent cases ; and the only question is, whether the matter is still open for argument ; if it is; the point would be that no man is allowed by law to take advantage of his own fraud ; and that the cases with regard to burglary, in which it has been held that admission obtained by fraud amounts to a break- ing by construction of law, are in point. (1 Russ. on Crimes, 793.) Jervis, C. J. We cannot permit this matter to be opened now. We have spoken to several of the other judges upon the subject, and they all think that the decision in Rex v. Jackson is conclusive. Alderson, B. Most of us think it is right. Coleridge, B., Martin, B., and Crowder, J., concurred. Conviction quashed. 20' 234 LEADING CEIMINAL CASES. Rape — Consent — Carnal Connection by Fraud. Rex v. Joseph Jackson. 1 Rape — Consent — Carnal Connection under circumstances which induce the woman to believe that the man is her husband. Trinity Term, 1822. Haying carnal knowledge of a married woman under circumstances which induce her to suppose it is her husband. Held, by a majority of the judges, not to amount to a rape. The prisoner was convicted before Mr. Justice Bayley, at the spring assizes at Lancaster, in the year 1822, for a burglary, with an intent to commit a rape upon a married woman. It appeared in evidence that the prisoner went into the room, and got into the woman's bed as if he had been her husband ; that he was in the act of copulation when she made the discovery, and im- mediately, and before completion, he desisted. The jury found that he entered the house with intent to pass for her husband, and to have connection with her if she did not discover the mistake, but not with the intention of forcing her if she made that discovery. The . learned judge thought it right to reserve the question for the consid- eration of the judges, whether the connection with the woman, whilst she was under that mistake, would have amounted to a rape, and he accordingly respited the sentence. The case was considered by the judges in Trinity term, 1822, when four judges thought, that the having carnal knowledge of a woman whilst she was under the belief of its being her husband, would be a rape, but the other eight judges thought that it would not; and Dallas, C. J., pointed out forcibly the difference between compelling a woman against her will, when the abhorrence which would naturally arise in her mind was called into action, and beguil- ing her into consent and cooperation ; but several of the eight judges intimated, that if the case should occur again, they would advise the jury to find a special verdict. It may be convenient to notice the dictment, as the crime was not committed cases in which this question has been against the will of the prosecutrix, as she considered since the case of Rex v. Jack- consented, believing it to be her husband." son. In Regina v. Saunders, 8 Carring- In Regina v. Williams, 8 Carrington & ton & Payne, 265, Gurney, B., in sum- Payne, 286, the case was opened, on the ming up, Baid : "lam bound to tell you part of the prosecution, as distinguishable that the evidence in this case does not from Rex v. Jackson, because the pros- e&tablish the charge contained in this in- ecutrix, having discovered the fraud be- i Russell & Ryan (X 0= 48R, LEADING CRIMINAL CASES. 235 Rape — Consent — Carnal Connection by Fraud. fore the prisoner had completed hig pur- pose, resisted, and, notwithstanding that resistance, the prisoner went on to com- plete his purpose ; but when the prosecu- trix gave her evidence, it appeared that she assented to the connection, under the belief that the prisoner was her husband, and that she did not discover who it was until the connection was over. Where- upon Alderson, B., observed : " That puts an end to the capital part of the charge. Rex v. Jackson is in point." But Mr. Greaves says, in a note to his edition of Russell on Crimes, (vol. 1, p. 678,) that if the facts had appeared in evidence as they were opened, the question would have been reserved for the opinion of the judges. In both these cases, the prisoners were, however, convicted of an assault under 1 Vict. eh. 85, § 11 ; and in Regina v. Case, 4 Cox, C. C. 220 ; 1 Denison, C. C. 580; Temple & Mew, C. C. 318; 1 Eng. Law and Eq. R. 544 ; those decis- ions were quoted and not disapproved of in that respect. In that case the pros- ecutrix made no resistance, being ig- norant of the nature of the act, and be- lieving that the prisoner, a surgeon, was treating her medically with a view to her cure ; and it was held, that the prisoner's conduct amounted, in law, to an assault. That case, however, is distinguishable from the two cases above mentioned ; for, as was observed by one of the judges, the prosecutrix there did not assent to what the prisoner really did ; and there cer- tainly seems great difficulty in the propo- sition, that a man who is entitled to be acquitted upon a charge of rape, on ac- count of the woman's consent, (though obtained fraudulently,) may, upon the very same transaction, be convicted of an assault. See Regina v. Read, 1 Den- ison, C. C. 377; 3 Cox, C. C. 266; 2 Carrington & Kirwan, 957 ; Temple & Mew, C. C. 52 ; where the prisoners, having been convicted of a common as- sault on a girl of nine years of age, she having been an assenting party to the connection which took place, though, from her tender years, she did not know what she was about, the conviction was held wrong, upon the authority of Regina t. Martin, 2 Moody, C. C. 123. See the grounds of that case explained by Patte- son, J., 9 Carrington & Payne, 215. If it is proved that she did not consent, a con- viction for an assault might be justified, though, by reason of the tender age of the prosecutrix, her consent 6r resistance might not be material to the principal offence. Regina v. Ashbolt, 2 Cox, C. C. 115. In Regina v. Camplin, 1 Cox, C. C. 220 ; 1 Denison, C. C. 89 ; 1 Carrington & Kirwan, 746 ; the prosecutrix was made insensible by liquor administered to her by the prisoner, for the purpose of ex- citing desire ; and whilst she was in that condition he had connection with her. A majority of the judges held that he was guilty of rape ; and in the Addenda to 1 Denison, there is the following note of the reasons for that decision, supplied by Parke, B. : " Of the judges who are .in favor of the conviction, several thought that the crime of rape is committed by violating a woman when she is in a state of insensibility, and has no power over her will, whether such state is caused by the man or not, the accused knowing, at that time, that she is in that state ; and Tindal, C. J., and Parke, B., remarked, that in the stat. (Westminster 2, ch. 34,) the offence of rape is described to be ravishing a woman where she did not consent, and not ravishing against her will. But all the ten judges agreed, that in this case, where the prosecutrix was made insensible by the act of the pris- oner, and that an unlawful act, and when, also, the prisoner must have known that the act was against her consent at the last moment that she was capable of exer- cising her will, because he had attempted to procure her consent and failed, the offence of rape was committed." The three dissenting judges appear to have thought that this could not be considered sufficiently proved. In Rex v. Ryan, 2 Cox, C. C. 115, which was the case of an idiot, the same doctrine was applied, and the prisoner convicted. See, also, Rex v. Page, 2 Cox, C. C. 133 ; Common- wealth v. Field, 4 Leigh, 648 ; The State v. Shepard, 7 Connecticut, 54. H. 236 LEADING CEIMINAL CASES. Bail in Criminal Cases — Character of Persons offered. Regina v. Badger and Cartwright. 1 February 11, 1843.' Bail in Criminal Cases — Character of Persons offered. In the case of a bailable misdemeanor, bail, if otherwise sufficient, ought not to he refused on account of the personal character or opinions of the party proposed. Erie, in last Michaelmas term, obtained a rule calling on the de- fendants, who were justices of the peace for Staffordshire, to show cause why a criminal information should not be exhibited against them. In last term, January 27, before Lord Denman, C. J., Pat- teson, and Wightman, JJ., n Sir W. W. Follett, solicitor-general, and Waddington, showed cause, and Erie and Boothby were heard in support of the rule. The facts, as collected from the affidavits by the court, and the line of argument on each side, will fully appear from the judgment. The following authorities were cited, with reference to the construction to be put upon the acts of magistrates. Rex v. Borron, 3 B. & Aid. 432 ; Rex v. Cozens, 2 Doug. 426 ; Rex v. Jones, 1 "Wils. 7 ; Rex v. Okey, 8 Mod. 45; Rex v. Brooke, 2 T. R. 190, 195 ; Rex v. Williams, 3 Bur. 1317. Cur. adv. vult. Lord Denman, C. J., in this term delivered the judgment of the court. We have thought it our duty to read the affidavits, and give full consideration to this very important case, and explain the reasons of our decision. If our remarks should affect any further legal proceed- ings, our silence might be followed by the same inconvenience, which, indeed, is inseparable from the exercise of that jurisdiction which we are now asked to bring into operation. This application was made on behalf of Arthur George O'Neil, who was' apprehended for sedi- tious language, said to have been used at an unlawful assembly held at Dudley, last August ; and he was taken before Mr. Badger and the Rev. Mr. Cartwright, two magistrates of the county of Stafford, upon that charge. They required him to find two sureties of £100 each for his appearance to take his trial, and be of good behavior in the mean time ; but, when two persons, of the name of Page and 1 4 Queen's Ber LEADING CRIMINAL CASES. 237 Bail in Criminal Cases — Character of Persons offered. Trueman, were tendered to the above mentioned magistrates as his bail, they were refused, though perfectly solvent and in respectable circumstances, (being town councillors of Birmingham, for which office they must possess a qualification (stat. 5 6c 6 W. 4, ch. 76, § 28) of £1,000 over and above what would pay their debts,) on the alleged ground that they had attended chartist meetings ; the two magis- trates assigned no other reason, though they stated they had other reasons. For this refusal a rule for a criminal information was granted, which has been discussed on showing cause. The affidavits in answer to the rule disclose facts which prove that a highly disturbed and alarming state of things existed in the neigh- borhood at the time the bail was tendered. It appears that large numbers of colliers and other workmen had withdrawn from their employ, and had commenced acts of extreme violence, inciting other workmen, and even proceeding to the destruction of property, to in- timidation and riot. Large meetings of such .persons were held, whose passions were inflamed by seditious harangues addressed to them by strangers travelling about the country under the name of chartists ; there was imminent danger that the peace would be broken and anarchy become universal. Her Majesty had denounced the proceedings on the 13th of August, by a proclamation which called upon the magistrates to act with promptitude and vigor in the suppression of such meetings and the apprehension of the offend- ers. By the magistrates and police, aided by special constables and the military, which were absolutely indispensable, such meetings were prevented or dispersed ; and the parties accused of breaking the peace were arrested and handed over for trial in the courts of justice. O'Neil, who has obtained this rule, is one of the persons against whom information of misconduct was laid on oath before the magis- trates ; and we understand he is to take his trial on that charge ; we shall therefore abstain from comment on all particulars alleged against him. But the court is bound to express an opinioii upon some of the topics enlarged upon at the bar, and on the nature of the proceedings. The right of workmen to meet together for considering the amount of wages, or of any of the queen's subjects freely discussing public grievances, is foreign to this case. The complaint is, not that work- men assembled to devise means for bettering their condition, but that others took advantage of their quarrels with their masters, and, finding vast numbers unemployed, ignorant, and disaffected, sought to incite them to every kind of outrage ; not that the discussion of public grievances had been intemperately conducted, but that at tumultuous assemblies, rendering all discussion impossible, speeches 238 LEADING CRIMINAL CASES. Bail in Criminal Cases — Character of Persons offered. and conduct had occurred, calculated to lead to violent meetings, outbreaks, conflicts with the lawful authorities, and almost certain bloodshed, and very probably to universal pillage. Whether or not these meetings had been held in the immediate neighborhood of Dudley is of small importance ; they had been held in other quar- ters, producing their natural results, and were rapidly extending. It is sworn that, near Dudley, a population of half a million of persons were expected to follow this example ; and in this state of things the meeting in question was announced. It was observed, on the argu- ment, that few deeds of violence were actually committed in that district, and those by no means of a formidable character ; if that be so, we have no doubt, when we regard the materials and the instru- ments of mischief that were prepared, that it is to be ascribed to the vigilance, the spirit, and real humanity with which the magistrates enforced the law, as her Majesty's proclamation enjoined them ; we think them entitled to the gratitude of their sovereign and the coun- try, and that they would have deserted their duty if they had not committed O'Neil for trial for the part he was proved to have taken at the meeting which they most properly dispersed on the 26th of August. At this point of time, a new state of things has arisen : the law has been fully vindicated ; the seditious assembly has been dissolved ; the agitators, as they called themselves, are withdrawn from it with- out serious interruption, and secured, that their imputed offences may be investigated before a jury. Standing charged with a misdemea- nor, O'Neil claims the right of every man, so charged, to be released from prison and admitted to bail on producing sufficient sureties. He says he .tendered such to the magistrates, who refused to receive . them, not from an objection to their sufficiency, but from corrupt, partial and arbitrary motives, with the determination to keep him in prison when their duty required them, under the circumstances, to bail him and release him out of custody. We' have, first, to consider whether this refusal was a lawful act, a point on which no serious doubt Was entertained. Neither of the learned counsel who opposed the rule contended that a magistrate can lawfully reject bail at his own discretion, or is at liberty, when bail is offered, to enter into an investigation as to the character or opinions of such bail, provided he is satisfied of their sufficiency to answer for the appearance of the party in the amount reasonably required for that purpose. The law is clear, and is as old as the statute of Westminster the First, 3 Ed. 1, ch. 15. Lord Coke, in his commentary upon that statute, (2 Inst. 191,) says that "to deny a man plevin that is plevisable, and thereby to detain him in prison, is a great offence, and grievously to be punished." And Lord Hale LEADING CRIMINAL CASES. 239 Bail in Criminal Cases — Character of Persons offered. (2 PI. Cr. p. 135, part 2, ch. 15 ; see 1 Chitty's Burns's Justice, 322, Bail, VIII. 28th ed.) adopts the same remark ; and Hawkins (Part 2, ch. 15, § 13, 3 Hawk. PL Cr. p. 189, 7th ed.) speaks of refusals of bail as an indictable offence. Blackstone, referring (4 Com. ch. 22, p. 297,) to the ancient statute, the Habeas Corpus, (stat. 31 C. 2, ch. 2,) and the Bill of Eights, (2 stat. 1 W. & M. ch. 2,) calls it " an offence against the liberty of the subject." If then, such refusal took place from improper motives, it might be treated as a criminal offence, and made subject to an indictment information.* The affidavits on which the rule was granted accused the magis- trates of motives corrupt, partial, personal, and arbitrary. But even the deponents themselves do not mean to charge pecuniary corrup- tion or personal malice, or partiality in the sense of giving an unfair advantage to one litigant party over another. The only censurable feelings that can with any show of reason be suspected, are a pre- meditated refusal and disregard. of the just claim made by O'Neil for his liberation, and a determination to keep him in prison without legal authority, and in contempt of their duty. The affidavits on both sides aTe much the same, in substance, in respect of all that occurred before the magistrates. The facts being clear, the question is, whether a criminal information ought to be filed ; and this de- pends on our view of the motives which influenced the magistrates. And we must advert to the very questionable character of one line of defence which they appear to insinuate rather than avow. . They depose that, some time previous to the apprehension of O'Neil, these deponents consulted with their brother magistrates as to the nature of the bail to be taken by them in the case of persons committed for attending illegal meetings, for using Seditious language, and particu- larly for inciting to outrages, inasmuch as the disturbances were then going on in certain districts in Staffordshire and in the neigh- borhood of Dudley, and resistance to the laws was fomented and kept up by the inflammatory and exciting speeches and conduct of persons who were chartists. They debated whether, if they were called upon to accept, as bail for the appearance or good behavior of individuals charged with any of these acts of sedition, persons who had taken a prominent part in the proceedings of the chartist body, it was advisable to receive them ; and it is sworn that these depo- nents and the other magistrates, wholly uninfluenced by any cor- rupt, perverse, vindictive, personal, or partial motive, but, as they believed, in a fair and legitimate exercise of their office, in the per- formance of their duty as magistrates, and with a view only to the preservation of the peace, decided that such persons ought not, in the then state of the country, to be admitted as bail, and ought not so to be accepted by them. They further say that after the commit- 240 LEADING CRIMINAL CASE^. Bail in Criminal Caaes — Character of Persons offered. merit of O'Neil the same decision was again considered by the mag- istrates, and was agreed to by the lord lieutenant of Worcestershire, who thought it was a proper decision. Another magistrate, Mr. Molyneux, states also this resolution, and informs the court that, if he had been called upon to accept such persons as bail for any one charged with the same offence, he would also have rejected them. Now the assumption of powers not given by the law appears to us peculiarly ill-judged at a period of political disturbance, and not to be palliated, but rather rendered so much the more culpable, if deliberately done by high functionaries having a judicial duty to perform. And, if we had found any magistrate wilfully adopting such a measure in defiance of the known law, the encouragement so given would have compelled us the more strongly to mark our dis- approbation of his conduct. This proceeding, however, gives the parties challenged an oppor- tunity of explaining the state of mind in which they acted. And we find them expressly swearing that they thought they were acting in the fair, legitimate exercise of their office, and in the performance of their duty as magistrates. We may regret that the question of law was not more carefully examined. Almost the first page of their ordinary text-books would have convinced these gentlemen that their refusal, on such a ground, to receive the bail offered, was not a legitimate exercise of their office, or a proper performance of their duty as magistrates, but the contrary. Their opinion that it was right was hastily adopted in a crisis of real danger, and, most probably, from a deference to the general resolution ; which induces us, in conformity to the rule by which this court has regulated its practice, to decline interfering by criminal information. We shall therefore discharge the rule. But, as the conduct of the magistrates was such as to justify the application, they must pay all the costs attending it. Rule discharged : the defendants to pay to the prosecutor the costs of and attending this application. The question discussed in the principal Crim. Law, (2d ed.) 579. In a very re- case is of great importance, not only to cent case, Martin, B., said: "That is a magistrates, but also to the public gen- very wrong deduction from the case {Rex erally. In 1 Chitty, Crim. Law, 100, the v. Edwards). Suppose a man worth law is laid down, that "a person con- £10,000 a year was proposed as bail in victed of an infamous crime, as perjury, the sum of £100, should the judge ask cannot be admitted as an adequate sure- that person, for instance, if he was living ty ; " and Rex v. Edwards, 4 Term K. in a state of adultery. In that case, {Rex 440, is cited as the authority. The same v. Edwards,) the person tendered had proposition has been stated in nearly the been convicted of perjury.' The judge, same words in other text-books, and the therefore, would not believe him on his same case cited to support it. See Arch,- oath as to the amount of his property." bold, Crim. PI. (London ed. 1853,) 73 ; Reginafy. Broome, 18 Law Times Reports, 2 Gabbett, Crim. Law, 174; Barbour, 14,(1851). LEADING CEIMINAL CASES. 241 Principal — Criminal Liability of, for the Acts of his Agent. Rex v. Edwards, ubi supra, which may Regina v. Broome, Martin, B., said : I be considered as overruled, is briefly re- have always understood that all bail are ported as follows : On an application to indemnified by the law — that each has a bail the prisoner, who was charged with right of action against the person bailed, grand larceny, one of the bail was asked for any money which he may be called up- whether he had not stood in the pillory on to pay, by reason of the person bailed for perjury. This question was objected not appearing according to the condi- to as tending to criminate him, but the tion of his recognizance. If the law itself court overruled the objection, saying there creates this species of contract between was no impropriety in the question, as the the parties, why should- not the parties answer could not subject him to any pun- themselves contract ? What difference ishment, and the bail admitting the fact, can it make, whether the bail obtains an he was, of course, rejected. In Regina v. indemnity by means of an action, or, Broome, ubi supra, it was held that it is no whether the person against whom the objection to the persons proposed as bail action would lie, says, " I will do now what in a criminal case, that they are indemni- the law would otherwise, compel me to do, fied by or on behalf of the prisoners. The I will give you my promissory note as an same rule also applies in civil cases. Neap indemnity." H. v. Allen, 1 Bosanquet & Puller, 24. In Rex v. Almon. 1 June 27, 1770. Principal — Criminal Liability of for the Acts of his Agent. The sale of a libel by the servant or agent of a bookseller, in the shop of the principal, is only prima facie evidence of publication by the principal, and may be avoided by show- ing that it was made contrary to his orders, or under circumstances negativing all privity on his part. The defendant having been convicted of publishing a libel, (Junius's Letter,) in one of the magazines called The London Museum, which was bought at his shop, and even professed to be " printed for him," his counsel moved, on Tuesday, 19th June, 1770, for a new trial, upon the foot of the evidence being insufficient to prove any criminal intention in Mr. Almon, or even the least knowledge of their being sold at his shop. And they had affidavits to prove, that it was a fre- quent practice in the trade, for one publisher to put another publisher's name to a pamphlet, as printed for that other, when, in fact, it was published for himself. That this was the fact in the present case ; Mr. Miller being the real publisher of this Museum, but having ad- vertised it and published it as printed for Mr. Almon, without con- sulting Mr. Almon, or having his consent or approbation. That, on 1 5 Burrow, 2686 ; 20 State Trials, 803-850. 21 242 LEADING CRIMINAL CASES. Principal — Criminal Liability of, for the Acts of his Agent. the contrary, as soon as he saw his name put to it; as being printed for him, he immediately sent a note Mr. Miller, expressing his disap- probation and dissatisfaction. That he himself had no concern what- ever in this London Museum. That he was not at home when they were sent to his shop. That the whole number sent to his shop was 300. That about 67 of them had been sold there by a boy in the shop, but without Mr. Almon's own knowledge, privity, or approba- tion. That as soon as he discovered it, he stopped the sale, ordered the remainder to be carried up into his garret, and took the first opportu- nity to return them to Mr. Miller. That it was not proved, that the person who sold them was Mr. Almon's servant, or employed by him, or that Mr. Almon was at all privy to the sale. On Wednesday, 27th June, 1770, it came on again ; and Sergeant Glynn argued that the proof against Mr. Almon appeared therefore to be defective ; there was nothing to constitute criminality, or induce punishment. That after the jury had been out about two hours, one of them (Mr. Mackworth,) proposed a doubt, "whether the bare proof of the sale in Mr. Almon's shop, without any proof of privity, knowledge, consent, approbation, or mains animus in Mr. Almon himself, was sufficient in law to convict him criminally of publishing a libel." Mr. Mackworth understood his lordship's answer to this doubt to be this : " That this was conclusive evidence." Otherwise, Mr. Mack- worth was convinced in his own mind, that the defendant ought not to be found guilty upon this evidence ; nor would he have found him guilty. He certainly gave his verdict under a mistake. If he had apprehended that the jury were at liberty to exercise their own judgment, he would have acquitted the defendant. The sergeant prayed that Mr. Mackworth's affidavit might be read. Lord Mansfield. You know it can't be read. Aston, J. A juryman's affidavit with regard to his sentiments in point of law, at the trial, ought not to be admitted, whatever may be the case of his affidavit tending to rectify a mistake in fact. Lord Mansfield, in reporting the evidence, said he had told the jury, that there was evidence of the publication, if they believed the witnesses. And he said he had directed them, (as he always had done, and as he took the law to be,) that if they were not satisfied that the blanks were filled up in the information, in the tftie sense and meaning of the writer, they ought to acquit the defendant ; and that the epithets used in the information were inferences of law drawn from the paper itself, and not facts to be Droved. LEADING CRIMINAL CASES. 243 Principal — Criminal Liability of, for the Acts of his Agent. The court were of opinion, that none of the matters urged on be- half of the defendant, nor all of them added together, were reasons for granting a new trial ; whatever weight they might have in extenu- ation of his offence, and in consequence lessening his punishment. For they were exceedingly clear and unanimous in opinion, that this pamphlet being bought in the shop of a common known bookseller and publisher, importing by its title-page to be printed for him, is a sufficient primd facie evidence of its being published by him ; not indeed conclusive, because he might have contradicted it, if the facts would have borne it, by contrary evidence. But as he did not offer any evidence to repel it, it must, (if believed to be true,) stand good till answered, and be considered as conclusive, till contradicted. Lokd Mansfield said and repeated, that Mr. Mackworth had un- derstood him perfectly right ; and he was very glad to find that there was no doubt of what he had said. The substance of it was, that in point of law, the buying the pamphlet in the public open shop of a known professed bookseller and publisher of pamphlets, of a person acting in the shop, primd facie is evidence of a publication by the master himself; but that it is liable to be contradicted, where the fact will bear it, by contrary evidence tending to exculpate the mas- ter, and to. show that he was not privy nor assenting to it nor encour- aging it. That this being primd facie evidence of a publication by the master himself, it stands good till answered by him ; and if not answered at all, it thereby becomes conclusive so far as to be suffi- cient to convict him. That proof of a public exposing to sale, and selling at his shop by his servant, was primd facie sufficient; and must stand till contradicted or explained or exculpated by some other evidence; and if not contradicted, explained, or exculpated, would be in point of evidence sufficient or tantamount to conclusive. Mr. Mackworth's doubt seemed to be "whether the evidence was suffi- cient to convict the defendant, in case he believed it to be true." And in this sense I answered it. Primd facie, 'tis good, and remains so till answered. If it is believed, and remains unanswered, it be- comes conclusive. If it be sufficient in point of law, and the jury- man believes it, he is bound in conscience to give his verdict accord- ing to it. In practice, in experience, in history, in the memory of. all persons living, this is, (I believe,) the first time that it was ever doubted " that this is good evidence against a bookseller or publisher of pamphlets." The constant practice is, to read the libel as soon as ever it has been proved to be bought at the defendant's shop. This practice shows that it is considered as already proved upon the defendant ; for it could not be read against him before it had been proved upon him. 244 LEADING CRIMINAL CASES. Principal — Criminal Liability of, for the Acts of his Agent. If I am mistaken I am entirely open to alter my opinion, upon being convinced that it is a wrong one ; but, at present, I take this point to be as much established, as that an eldest son is, (in general,) heir to his father. And being evidence primd facie, it stands, (if be- lieved,) till contrary proof is brought to repel it. Aston, J., laid down the same maxim, as being fully and clearly established, " that' this primd facie evidence, (if believed,) is binding till contrary evidence be produced." Being bought in a bookseller's shop, of a person acting in it as his servant, is such primd facie evi- dence of its being published by the bookseller himself. He has the profits of the shop, and is answerable for the consequences. And here is a corroborating circumstance, namely, that it professes to be printed for him. It is as strong a case as could be put. The sale in his shop is sufficiently proved ; and he is answerable for what is done in his shop. And here is no sort of proof produced in contradiction or exculpation. This primd facie evidence, not answered, is suffi- cient to'groUnd a verdict upon ; and there appears no reason for grant- ing a new trial. If he had a sufficient excuse, he might have shown and proved it. But he has not attempted to prove exculpation or ex- cuse ; therefore the evidence of his publishing what was thus bought in his shop, must stand till the contrary appears. There may indeed be circumstances of extenuation, or even of exculpation ; and if it were a surprise upon him, the court would have regard to such cir- cumstances, as far as they merited their regard ; but here was no kind of proof of any such sort. He cited Benjamin Harris's case, in State Trials, vol. 2, p. 1037 ; Rex v. Strakan, Hen. 3, Geo. 1, and Rex v. Elizabeth Nutt, Hen. 2, Geo. 2, Fitzgibbons, 47. "Willes, J., was also of opinion that there was no foundation for the motion for a new trial ; and that, upon all the circumstances of this case, Mr. Almon was answerable as publisher of the libel. He is a common known bookseller and publisher, and it imports, upon the face of it, to be printed for him ; and it was bought in his shop. This is sufficient primd facie evidence of his privity. ; and no contrary evidence was produced by him. It was liable to be refuted or ex- plained ; but as it never was, nor/any excuse shown, it stands good to convict him. Ashhurst, J., entirely concurred with his lordship and the rest of his brethren, in the doctrine they had laid down ; and in holding that there was not any foundation for granting a new trial ; and he par- ticularly expressed his approbation of Lord Mansfield's answer to Mr. Mackworth, the juryman. LEADING CEIMINAL CASES. 245 Principal — Criminal Liability of, for the Acts of his Agent. The court, therefore, unanimously discharged the rule to show cause why there should not be a new trial. The defendant's counsel declined making any use of the liberty which had been reserved to them, of moving in arrest of judgment. Rex v. Nutt, cited by Mr. Justice Aston, in Rex v. Almon, is thus reported in 1 Bar- nardiston, 306 ; S. C. Fitzgibbons, 47 ; the defendant was indicted for being one of the publishers of a treasonable libel. But the evidence against her was only that she kept a pamphlet shop, and that there the libel was sold ; but no evi- dence was offered to prove her knowing of its being bought in or sold out ; nay she proved that her house where she lived was a mile off from the shop, and that she had been bed-ridden there for a long time ; so that the presumption was, on the other hand, that she really knew nothing of it. Upon which Mr. Kettleby said, he hoped upon this evidence the defendant must be acquitted ; for though indeed the act of a servant may charge a mistress in a civil suit, yet it was by no means reasonable it should charge her in a crim- inal prosecution. He observed, too, that that rule could certainly not hold in all cases, that all those through whose hands a libel goes, are publishers of it, if they do not discover it ; for a postboy that car- ries a libel in the common packet, can certainly not be punishable, as assisting to the crime. The chief justice said, that the case of the postboy was not at present in question, and therefore there was no occasion to say any thing in relation to it. But he observed that if a servant carries a libel for his master, he certainly is an- swerable for what he does, though he cannot so much as write or read. But, however, the present case, the chief justice said, has been expressly determined, that the master of a shop is answerable for whatever books are sold there. However, the jury thought it a hard case, and there- fore refused to do any thing else than find the circumstances specially, that were given in evidence before them. But the attorney-general said, that these circum- stances were only matters proper to induce the jury to find the defendant guilty of a 21* . publication, and not suitable to a special verdict ; for they are only evidence of a fact. . And therefore he proposed to the jury that they should give a general ver- dict, and that the defendant's counsel should make a bill of exceptions to the directions the court gave to find the de- fendant guilty. But Mr. Kettleby said, that it has been doubted upon these words in the statute of Westminster, proponat billam exceptionis, whether the king is within the benefit of the act, it being unworthy of him to propose a bill ; but at least he said, it was not so proper a method as the other. But the court said, that though this has been doubted, yet in mis- demeanors it has been allowed, and is frequent in the Exchequer upon penal statutes. But, however, the jury were unwilling to do any thing more than what they had declared before ; and therefore, as it was something of a hard case too upon the defendant, the attorney-general consented to withdraw a juror. Levinz, 68. In Rex v. Dodd, 2 Session Cases, 33, pi. 38, an information was moved for against the defendant, for selling and publishing a libel against one Chambers ; and it was insisted upon for the defendant, that she was sick, and that her servant took the libel into her shop without her knowledge. But by the court ; this is no excuse, for a master shall answer for his servant, and the law presumes him to be acquainted with what his servant does. Mr. Justice Fortescue said, that it had been ruled, that the finding a libel on a bookseller's shelf was a publication of it by the bookseller. And Lord Chief Jus- tice Raymond said, it had been ruled, that where a master living out of town, and his trade is carried on by his servant, the master shall be chargeable with the ser- vant's publishing a libel in his absence. In Rex v. Gulch, Moody & Malkin, 433, there was a criminal information filed for a libel published in the Morning Jour- 246 LEADING CEIMINAL CASES. Principal — Criminal Liability of, for the Acts of his Agent. nal newspaper. The defendant, Gutch, one of the proprietors, at the time of pub- lication, was living at a distance of more than one hundred miles from London, with- out taking any share whatever in the actual publication of the newspaper in London, the whole of which was conducted by the managing proprietor, Alexander, and was himself confined to his house by illness. Lord Tenterden, C. J., in charging the jury, said : On the part of Mr. Gutch it is contended, that a proprietor of a news- paper, who is not shown to take, or who can show that he took no part in the pub- lication of the newspaper, and of the libel in question, is not criminally responsible. Now whether it is so shown in this case is a fact for you to consider, but I am bound to state the law, as I have received it from my predecessors. I cannot propose to you a different rule from what I find adopted by those who have filled my situ- ation before me. Now it is conceded that it has been held in several cases that a proprietor so situated is criminally answer- able. But it is said that this is a different principle from that which prevails in all other criminal cases; but this does not appear to me to be so, the rule seems to me to be conformable to principle, and to common sense ; surely a person who derives profit from, and who furnishes means for, carrying on the concern, and intrusts the conduct of the publication to one whom he selects and in whom he confides, may be said to cause to be published what actually appears, and ought to be answer- able, although you cannot show that he was individually concerned in the particu- lar publication. It would be exceedingly dangerous to hold otherwise, for then an irresponsible person might be put forward, and the person really producing the publi- cation and without whom it could not be published, might remain behind and escape altogether. In summing up in another case, against the same defendants, the chief justice said: The proprietor of a newspaper is liable for what appears in it. I do not mean to say, nor ever did mean to say, that some possible case may not occur, in which he would be exempt, but generally speaking he is answerable. In Commonwealth v. Nichols, 10 Metcalf, 259, which is a well considered case ■ on this subject, the defendant was indicted for selling spirituous liquors without li- cense. It was proved that he was in pos- session of the shop and was the owner of the liquor, and that the sale was made by his servant. His counsel requested the judge in the court below, to instruct the jury, that if they doubted, upon the whole evidence, whether these sales were made by the authority of the defendant, or by his consent, they must acquit him. But the judge declined so to do, and instructed the jury, that if they were satisfied beyond a reasonable doubt, that the sales were made by the defendant, or any person in his employ, and in his shop, they would be warranted in finding him guilty. The jury found the defendant guilty, and he alleged exceptions. Dewey, J., in deliver- ing the opinion of the court, said : The question as to the liability of the principal to be punished criminally for the acts of his agent or servant, in which he does not directly participate personally, is certainly not free from difficulty. As to civil liabil- ities, a broader and more general princi- ple of responsibility applies, and the master or principal may be held to answer in damages for default and misdoings with which he had no other connection than that which arises from the fact that the injury was occasioned by one employed in his service. As a general rule, something beyond this is necessary to charge the master criminally for acts done by the ser- vant. There must be such a direct par- ticipation in the act, or such assent and concurrence therein, as would involve him morally in the guilt of the action. Hence the cases are comparatively rare, and may be considered as exceptions to the general rule, where by legal rules a party is charged criminally for acts of his servant done without his knowledge and assent. The case of a bookseller, or publisher of a newspaper, is to some extent one creating such liability; to what precise extent is, perhaps, yet an unsettled question. Rex v. Almon, a leading case on that subject, only carried the doctrine so far as to hold LEADING CRIMINAL CASES. 247 Principal — Criminal Liability of, for the Acts of his Agent. servant was primd facie evidence to estab- lish the liability of the party, but was not conclusive and might be controlled. It was said by Lord Mansfield that he might avoid the effect of it by showing " that he was not privy nor assenting to it, nor en- couraging it." So also it is said that the defendant, in such cases, may rebut the presumption by showing that the libel was sold contrary to his orders, or under cir- cumstances negativing all privity on his part. 2 Starkie on Slander, (2d ed.) 34. The general rule, however, has been stated somewhat more broadly as to the liability of booksellers and publishers, respecting all publications issued from their establishments in the regular course of business; and they have been held answerable criminally in such cases, al- though the particular act of sale or publi- cation was done without their knowledge. 1 Hawkins, P. C. ch. 73, § 10. Rex v. Walter, 3 Espinasse, R. 21. The case of a sale of liquors prohibited by law, at the shop or establishment of the principal, by an agent or servant usually employed in conducting his business, is one of that class in which the master may properly be charged criminally for the act of the servant. But in looking at the question presented by the bill of excep- tions in the present case, and considering what should be stated as the rule as to the responsibility of the principal or master in such case, the court have come to the opinion that the law was stated too strong- ly, upon that point, against the defendant, inasmuch as the defendant, under the instructions given, might have been found guilty of the charge in the indictment, if a sale had been made in his shop by any person in his employment, without any reference to the circumstances under which the sale was made, and although against the will and in contravention of the orders of the defendant. A sale by the servant, in the shop of the master, is only primd facie evidence of such sale by the master as would subject him to the penalty for violating the statute forbidding the sale of spirituous liquors without license ; that the relation of these parties, the fact that the defendant was in possession of the shop and was the owner of the liquor, and that the sale was made by his servant, furnish strong evidence to authorize and require the jury to find the defendant guilty. But we cannot say that no possible- case can arise in which the inference from all these facts may not be rebutted by other proof. Unexplained, they would be sufficient to convict the party. So too it should be understood that merely colorable dissent, or a prohibition not to sell, however publicly or frequently repeated, if not made bona fide, will not avail. But if a sale of liquor is made by the servant without the knowledge of the master, and really in opposition to his will, and in no way participated in, approved, or countenanced by him, and this is clearly shown by the master, he ought to be ac- quitted, inasmuch as the defendant, under the instructions given, might have been found guilty of the charge in the indict- ment, if a sale had been made in his shop by any person in his employment,, without any reference to the circumstances under which the sale was made, and although against the will and in contradiction of the orders of the defendant." In England, there are a class of cases, arising under the revenue laws, where the liability of the master for the acts of his servant has been recognized. In a very recent case the whole Court of Exchequer were equally divided upon the question whether an information by the attorney- general for a violation of these laws, which is punishable by information or summary conviction, is, or is not, a criminal pro- ceeding. Attorney-General v. Radlqff, 26 Eng. Law and Eq. R. 413 ; ante, p. 23, (1854.) In the Attorney- General v. Sid- don §• Binns, 1 Tyrwhitt, 41 ; 1 Crompton & Jervis, 220 ; which was an information for penalties, the seventh count was framed on Btat. 57 Geo. 3, ch. 123, § 13, charging defendants, as dealers in tobacco, with, using an excise permit, for another purpose than that of accompanying the actual removal of the goods for which it was granted, and which were therein expressed. The following facts were proved. On 15th June, 1829, the defend- ants were in partnership as tobacco manu- 248 LEADING CRIMINAL CASES. Principal — Criminal Liability of, for the Acts of his Agent. faoturers, though only Binns's name was on the door. The last bona fide permit granted for taking tobacco into their stock was dated that day. On the 16th the surveying officers found concealed in a dark cellar on their premises, 40 lbs. of smuggled tobacco, in two packages, of 20 lbs. each. They asked for both defendants by their names, but they were absent from home. They asked for the permit, under which the tobacco had been brought on the premises. The shopman said he thought there was one, and after some search produced the permit, dated the 15th ; but it was for cut tobacco, and did not apply. The officers remained on the premises, and while they were there, a boy was sent by the shopman to a neigh- boring tobacco dealer, for a request note, in order to get a permit thereon for 40 lbs. of tobacco, in two equal packages. A permit was accordingly obtained, and' brought back by the boy to the shopman, who, after pretending to make further search, at last suddenly produced the per- mit which had been thus obtained, but which on examination bore date the .exact hour it was issued, to wit, after the dis- covery of the smuggled tobacco by the officers. Bayley, B., said: This is not properly a criminal proceeding ; but as a civil proceeding for the debt of the crown, it is penal in its nature, as are also infor- mations for penalties on the statute of usury, or against a master for the giving unstamped receipts by his servant. Whe- ther the information is penal or civil in its nature, the act of the servant is by law to be considered as done by the master, if it is within the scope of the probable authority which must be considered to be given by the master to the servant, for the carrying on the business of the former. This is not the ordinary case of selling in the shop of the master the articles in which he deals, ifor that being within the ordinary authority given by a master to a servant, is on that principle held to be the master's act, as in case of a sale by the servant of a libellous publication. Rex v. Null, supra; Rex v. Almon; Rex v. Gulch; nor was the illegal act, here made the subject of information, done in the course of manufacturing articles which the master in his way of business is to manufacture, for there the servant clearly acts within the scope he naturally receives from his master, to manufacture the subjects of the trade, and in such cases, therefore, the master is clearly liable. But the present act is of a different de- scription, not being within the ordinary range of those acts of a servant, which have been held to be the master's. In order to fprrn a judgment whether it is or is not within the authority given, we must investigate its nature, and the participa- tion of the master in anything relating to it. The whole attending circumstances show it to be that of a servant of a fraud- ulent master, attempting to conceal his master's offence, and to avert its conse- quences. From the nature of the whole transaction and the master's conduct it must be inferred that the servant had authority from his master not perhaps to do this particular act, but to do the best to frustrate the excise laws at the moment of embarrassment by the presence of the officers. In this case there is prima facie evidence of such an authority in reference to acts of this description. The extent and nature of such authority must be judged of from the nature of the servant's employ, who, in this case had the custody of this illegally obtained article. It was open to the master to rebut such primd facie evidence, and as that was not done, it was correctly left to the jury as being the act of the master. In Attorney- General v. Riddell, 2 Tyr- whitt, 523 ; 2 Crompton & Jervis, 493, an information, on stat. 1 Geo. 4, ch. 58, had been filed against the defendant, an enter- ed paper-maker, containing several counts. The first count was framed to recover a penalty for selling, sending out, and deliv- ering paper without being tied up and labelled. Another count was for a penalty in respect of a quantity of paper removed from his manufactory without being in- closed in a wrapper so labelled, and with such impressions of a departure stamp thereon as required by the statutes. Lord Lyndhurst, C. B., delivered the opinion of the court. The facts of the case were LEADING CRIMINAL CASES. 249 Principal — Criminal Liability of, for the Acts of his Agent. these : the defendant was a paper manu- facturer, who employed a foreman to su-* perintend the manufacture of the paper. During the absence of the defendant, his wife acted for him in one department of the business. It appeared upon the evidence, that in cases where notices were necessary for the excise officer, these notices, during the absence of the husband, were very frequently given by the wife. It does not appear that she interfered in the manufac- ture of the paper, but during the absence of the husband she was exclusively em- ployed in that part of the business referred to, and so much so, that the foreman used to appeal to her to know what notices should be given. It appeared also, that, on one occasion she was employed by the defendant to pay duty in arrear ; and on another, that she pledged some paper from her husband's manufactory to raise the money to pay the duties. These were the general facts of the case, and under these circumstances it was proposed by the attorney-general to give certain acts of the wife in evidence, in order to fix the hus- band with the improper removal of paper. It was stated that some duties being in arrear, the wife had called at the house or shop of a neighbor with a quantity of paper, which had been illegally removed from the manufactory, and that she was desirous of borrowing money upon the deposit of it. The money was lent, and the paper accordingly deposited, and it was stated by the attorney-general that he should prove that on the same day the du- ties then due were paid by the wife. That evidence was rejected, as not being evi- dence proper to charge the husband with the acts of the wife ; but we are of opinion that it was improperly rejected, and that it ought to have been left to the jury to decide whether or not the act of the wife, under the circumstances stated, was done by the authority of her husband, the de- fendant. An indictment against the principal, need not allege that the sale was made by him through his servant's agency. It is a general rule, said Metcalf, J., in a very recent case, Commonwealth v. Park, 1 Gray, 553, (1854,) in civil actions and in prosecutions for misdemeanors, that when a declaration or indictment alleges that a person did an act, such allegation is sus- tained by proof that he caused it to be done by another. 3 Starkie, Ev. (4th Amer. ed.) 1582. Thus, in an action to recover damages alleged to have been caused by the defendant's negligence in driving a carriage, proof that the damage was caused by his servant's negligence in driving it supports the allegation. Brucher v. Fromont, 6 Term R. 659. See also Keys v. Heseltine, 2 Campbell, 604 ; Phelps v. Riley, 3 Connecticut, 266. So an in- dictment, which charges the defendant with publishing a libel, is supported, by evidence that he procured another person to publish it. Archbold, Crim. PI. (5th Amer. ed.) 527, 528 ; Rex v. Gutch, Moody & Malkin, 437. And an indictment, which charges the defendant with selling lottery tickets, contrary to law, is support- ed by proof that he sold them by his servant. Commonwealth v. Gillespie, 7 Sergeant & Rawle, 469, 478. H. 250 LEADING CKIMINAL CASES. The Pleading of Exceptions and Provisos in Statutes. Commonwealth v. John Hart. 1 The Pleading of Exceptions and Provisos in Statutes. March Term, 1853. The provisions of the statute of 1852, ch. 322, § 12, in regard to common sellers of spirit- uous and intoxicating liquors, has made no change necessary in the forms of indictment for such offence ; and in such indictments it is only necessary to set forth, in the general words of the statutes, that the defendant is a common seller, without heing duly licensed. All allegations of particular sales to particular individuals are unnecessary, and may he re- jected as surplusage. If there be any exception contained in the same clause of the statute which creates the offence, the indictment must show negatively, that the defendant, or the subject of the indictment, does not come within the exception. If the exception or proviso be in a subsequent clause or statute, or although in the same section, yet if it be not incorporated with the enacting clause by any words of reference, it is, in that case, matter of defence for the other party, and need not be negatived in the pleading. The statute of 1852, ch. 322, § 12, provides that "No person shall be allowed to be a com- mon seller of any spirituous or intoxicating liquors, without being duly appointed and authorized." A proviso to this section enacts, " That nothing in this act shall be con- strued to prevent the manufacture or sale of cider for other purposes than that of a bever- age ; or the sale and use of the fruit of the vine for the commemoration of the Lord's Sup- per." In an indictment against the defendant for being a common seller without due authority therefor, it was held, that it was not necessary to negative in the indictment the exceptions in the proviso, they forming no part of the enacting clause of the statute. .The defendant was indicted at the January term of the Municipal Court in the city of Boston, 1853, under the twelfth section of the " act concerning the manufacture and sale of spirituous or intoxi- cating liquors," (statutes of 1852, ch. 322, § 12,) which provides that " no person shall be allowed to be a manufacturer of any spirituous or intoxicating liquors for sale, or a common seller thereof, without being duly authorized and appointed as aforesaid, (i. e. as provided in previous sections,) on pain of forfeiting, on the first conviction, one hundred dollars and the costs of prosecution ; and three several sales of spirituous or intoxicating liquors, either to different persons or to the same person, shall be sufficient to constitute a violation of this section. Provided, that nothing in this act shall be construed to prevent the manufacture or sale of cider for other purposes than that of a beverage ; or the sale and use of the fruit of the vine for the commemoration of the Lord's Supper." The fourteenth section provides, that, when liquors are seized under the provision of that section, the owner or keeper shall be summoned before the magistrate by whose warrant they were seized, i The Monthly Law Reporter, vol. 6, N. S., 77. LEADING CRIMINAL CASES. 251 The Pleading of Exceptions and Provisos in Statutes. " and if he fail to appear, or unless he shall prove that said liquors are of foreign production, that they have been imported under the laws of the United States, and in accordance therewith, that they are contained in the original packages in which they were imported, &c, they shall be declared forfeited," &c. The indictment was as follows : " The jurors for the Common- wealth of Massachusetts,' on their oath present, that John Hart, of Boston, in said county of Suffolk, trader, on the second day of Janu- ary, in the year of our Lord eighteen hundred and fifty-three, at Boston, aforesaid, in said county of Suffolk, and on divers other days and times, between the first day of December, in the year of our Lord eighteen hundred and fifty-two, and" the day of the finding, presentment, and filing of this indictment, there, without any au- thority or license therefor, as required by law, and not being author- ized or appointed so to do, by or under any of the provisions of the statutes passed in the year eighteen hundred and fifty-two, entitled, ' An Act concerning the manufacture and sale of spirituous or in- toxicating liquors,' did presume to be, and said John Hart then and there was a common seller of wine, brandy, rum, and other spiritu- ous and intoxicating liquors, in and about a building then and there used by him as a shop, salesroom, and place of business ; and did then and on said other days and times, there, without any license, appointment, or authority to sell such liquors for any purpose, com- monly sell spirituous and intoxicating liquors to divers persons, more than three in number, to wit, to one Patrick Hickey, to one Thomas Murphy, and to divers other persons, whose persons and names to said, jurors as yet are not known, against the peace of the Common- wealth, and contrary to the form, force, and effect of the statute in such case made and provided." At the trial of the indictment, the defendant was found guilty by the jury, and thereupon, and before judgment, he assigned the follow- ing causes for arrest 6f judgment : — First. Because said indictment is bad for duplicity. Second. Because there is no allegation of, three several sales, as required by the statute, to constitute a common seller. Third. Because there is no sufficient description of the persons to whom the sales were made. Fourth. Because it does not appear that the liquors sold were not imported in original packages. Fifth. Because there is no allegation that the liquors sold were not cider for other purposes than that of a beverage, or the fruit of the vine for the commemoration of the Lord's Supper. The motion in arrest was overruled, and exceptions were taken, and the case was carried to the Supreme Court, where the points 252 LEADING CETMINAL CASES. The Pleading of Exceptions and Provisos in Statutes. were fully argued by Hon. John C. Park, district attorney for the Commonwealth, and by Joseph H. Bradley, Esq., for the defendant. The opinion of the court was delivered, as follows, by Metcalf, J. At the argument, the objection, that the indictment is bad for duplicity, was waived. The second objection is, that " There is no allegation of three several sales, as required by the statute, to constitute a common seller." It is argued for the defendant, that the sales alleged to have been made to Hickey, Murphy, and others, might have been made to them jointly, and not severally to each of them. Section twelve of the statute declares, that " Three several sales of spirituous or intoxicating liquors, either to different persons or to the same person, shall be sufficient to constitute a violation of this section." But this is only a declaration of the number of sales that shall constitute a common seller, and that evidence of three several sales shall be sufficient to convict a party of the charge of being such seller. It does not, however, require that an indictment shall allege three several sales. It makes no provision concerning the form of an indictment against a common seller. The old forms, therefore, which were held sufficient to charge a party as a common seller, under former statutes, are sufficient for the same purpose, under this. And it has been decided that an indictment for this offence, under those statutes, was sufficient, which set forth, in the general words of the statutes — as this indictment does — that the defendant was a common seller, without being duly licensed, &c, and that additional allegations as to the particular sales, &c, were needless, and might be treated as surplusage. Commonwealth v. Pray, 13 Pick. 359. That decision, which has been repeatedly recognized and sanctioned, is decisive against the objection now under consideration ; and we need not inquire whether three several sales are well alleged in this indictment. It was unnecessary to allege any particular sales at all; and whether they are well or ill alleged is immaterial, and the alle- gation may be rejected as surplusage. The other allegations con- stitute a sufficient indictment. The third objection to the indictment is, " That there is no suffi- cient description of the persons to whom the sales were made." The reasons, on which the second objection is overruled, apply to this. The allegation of sales to any individual being needless, it is immaterial whether such allegation is sufficiently descriptive of the individuals or not. It is surplusage, and to be rejected as such. The fourth objection is, that it does not appear in the indictment, "that the liquors sold were not imported in original packages." There is no legal pretence for this objection. All that is said in the LEADING CRIMINAL CASES. 253 The Pleading of Exceptions and Provisos in Statutes. statute, concerning the original packages in which liquors are im- ported, is in the fourteenth section, which provides, that when liquors shall be seized, under the provisions of that section, they shall be declared forfeited, and shall be destroyed, unless the owner or keeper can prove (among other things,) that they are contained in the origi- nal packages in which they were imported. This provision has no reference to an indictment for selling liquor contrary to the statute. The last objection to the indictment is, that " There is no allega- tion that the liquors sold were not cider for other purposes than that of a beverage," &c. The section, on which this indictment is framed, renders penal the offence of being a common seller of any spirituous or intoxicating liquors, without being duly appointed or authorized. Then, several provisions are made, as to the evidence that shall be sufficient to warrant a conviction of this offence, and as to including clerks, servants, &c, in the same indictment with the principal, and as to alleging two or more offences in the same complaint or indictment. The section closes with a proviso, " That nothing in this act shall be construed to prevent the manufacture or sale of cider for other pur- poses than that of a beverage," &c. This proviso extends to other sections besides that in which it is inserted, viz : to all the sections which prohibit the manufacture, or the single sale of liquors. The rule of pleading a statute which contains an exception, and on which the defendant's counsel relies, is usually thus expressed : " If there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception ; but if there be an exception in a subsequent clause, or subsequent statute, jbat is matter of defence, and is to be shown by the other party." The same rule is applied in pleading a private instrument of con- tract. " If such instrument contain in it, first, a general clause, and afterwards, a separate and distinct clause, which has the effect of taking out of the general clause something that would otherwise be included in it, a party, relying upon the general clause in pleading, mav set out- that clause only, without noticing the separate and dis- tinct clause which operates as an exception ; but if the exception itself be incorporated in the general clause, then the party relying on it must* in pleading, state it together with the exception." Gould, PI. ch. 4, § 20, 21 ; Spieres v. Parker, 1 T. . E. 141 ; Vavisour v. Or- mond, 6 Barn. & Cres. 432. The reason of this rule is obvious, and is simply this : Unless an exception in the enacting or general clause in a statute or contract, is negatived on pleading the clause, no offence, or no cause of action appears in the indictment or declara- tion. The case provided for in the clause pleaded is not made out 22 251 LEADING CRIMINAL CASES. The Pleading of Exceptions and Provisos in Statutes. on the record. But when the exception or proviso is in a subse- quent substantive clause, the case provided for in the enacting clause may be fully stated, without negativing the subsequent exception or proviso. A primd facie case is stated, and it is for the party, for whom matter of excuse is furnished by the statute, to bring it for- . ward in his defence. In Steel v. Smith, 1 B.& Aid. 194, cited by the defendant's coun- sel, Bayley, J., said : " Where there is an exception so incorporated with the enacting clause, that the one cannot be read without the other, then the exception must be negatived." Perhaps our statute concerning the observance of the Lord's day, furnishes as plain an example of this rule of pleading as can be found. Rev. Stat. ch. 50. " No person shall do any manner of labor, business, or work, except only works of necessity or charity, on th.e Lord's day ; and every person so offending shall be punished," &c. Here the exception is in the enacting clause, and that clause cannot be read without read- ing the exception. In an indictment on this section, it is doubtless necessary to negative the exception, otherwise the case provided for is not made out. Labor or travelling merely, is not forbidden ; but unnecessary labor and travelling, and labor and travelling not re- quired by charity. The absence of necessity and charity is a con- stituent part of the description of the acts prohibited ; precisely as if the statute had, in totidem verbis, prohibited unnecessary labor and travelling, and travelling and labor not demanded by charity. All the cases in which this rule of pleading has been applied are found, when examined accurately, to be just the same in principle. The word "exception" is not necessary, in order to constitute an exception within the rule. The words " unless," " not being," " other than," and many others, have the same legal effect. Thus, an Eng-^ lish statute, 8 & 9 Will. 3, ch. 26, § 1 ; 7 Ann. ch. 25, makes it penal for any person " other than the persons employed in his Majesty's mint," to make or mend any instrument for coining. This exception must be negatived in an indictment. 1 East, P. C. 166, 167. So, under ch. 50 of Rev. Stat., innkeepers are forbidden to entertain, on the Lord's day, inhabitants of the town where the inns are kept, " not being lodgers" in the inns. This is an exception and must be negatived in an indictment. 2 Pick. 139. None of these cases, nor any other in the books, apply to 'this in- dictment, founded on stat. 1852, ch. 322, § 12, which enacts that " no person shall be allowed to be a common seller of spirituous or intoxicating liquors, without being duly appointed or authorized, on pain of forfeiting," &c. This is the enacting clause, which contains only one exception, viz. : persons duly appointed or authorized ; and this exception the indictment negatives. At the end of the section, LEADING CRIMINAL CASES. 255 The Pleading of Exceptions and Provisos in Statutes. in a subsequent clause, is a proviso, as to the sale of cider, &c. According to the principles already stated, and according to the precedents, this proviso is matter of defence to be shown by the de- fendant. Steel v. Smith, 1 B. & Aid. 94, is not distinguishable from the case at bar. There is a middle class of cases, viz., where the exception is not, in express terms, introduced into the enacting clause, but only by reference to some subsequent clause, or some prior statute ; as, when the words "except as hereinafter mentioned," or words of similar import are used. The rule in these cases is, that all circumstances of exemption and modification, whether applying to the offence or to the person, that are incorporated by reference with the enacting clause, must be distinctly negatived. Verba relata inesse videntur. And this rule is as applicable to private instruments of contract as to statutes. See 6 B. & Cres. 432, .before cited. It is among the elementary principles of pleading, (except in dila- tory pleas, which are not favored,) that it is not necessary to allege matter which would come more properly from the other side ; that is, it is not necessary to anticipate the adverse party's answer, and forestall his defence or reply. It is only when the matter is such, that its affirmation or denial is essential to the apparent or primd facie right of the party pleading, that it must be affirmed or denied by him in the first instance. The exceptions are overruled, and the case is to go back to the Municipal Court for further proceedings. By a statute of Maine, if an executor, principles to be applied in the decision of knowing himself to be appointed as such, the question, in this and many other cases shall not, within thirty days next after the somewhat similar. There seems to be testator's death, cause his will to* be filed, much curious learning, and many nice etc., in the Probate Office, he shall upon and shadowy distinctions, the sound reason such neglect, " without just excuse made and solid sense of which are not very and accepted by the judge of probate for easily discoverable." Smith v. Moore, 6 such delay," forfeit a sum not exceeding Greenleaf, 274. The surprise, excited by sixteen dollars per month. On a judgment this exordium, has induced a review of the against an executor for the penalty im- doctrine discussed in that case ; and this posed by this statute, he sued out a writ of review has only increased that surprise, error ; and the principal error assigned If there are any legal principles which was " that in the declaration it was not al- are free from perplexity, or any settled leged that the original defendant had neg- legal distinctions which rest on solid sense lected to file the will without just excuse and sound reason, surely they lie in the made and accepted by the judge, etc." very path which the court must have trav- The court reversed the judgment/Tor this elled in arriving at their conclusion in cause. Indeed it was impossible for them Smith v. Moore. to do otherwise. But the opinion, given The rule of pleading a statute, which on this point, commenced with these re- contains an exception or proviso, is usually marks : " There is some perplexity and thus expressed in the books, viz. : '' If contradiction in the books respecting the there is an exception in the enacting 256 LEADING CEIMINAL CASES. The Pleading of Exceptions and Provisos in Statutes. clause, the party pleading must show that his adversary is not within the exception ; but if there be an exception in a subse- quent clause, or subsequent statute, that is matter of defence, and is to be shown by the other party.'' The same rule is uniformly applied in pleading private instruments of contract. Accordingly, Lord Tenterden places stat- utes and contracts together. In Vavasour v. Ormond, 4 Dowling & Ryland, 599 ; 6 Barnewall & Cresswell, 432 ; he thus states the doctrine : " If an act of parliament, or a private instrument, contain in it, first, a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause some- thing which would otherwise be included in it ; a party, relying upon the general clause in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an ex- ception ; but if the exception itself be in- corporated in the general clause, then the party relying on it must, in pleading, state it, together with the exception." When a patty professes to recite a stat- ute or private instrument, in pleading, and omits an exception in the " general clause," there is a variance. When he counts on a statute, and attempts to bring a case, whether civil or criminal, within the " general clause," if he omits to negative the exception, he shows no cause of action, or no offence, within the statute. The principle is the same in both in- stances. That this rule, as to counting on statutes, stands on solid sense and sound reason, and that there is no perplexity in the principle of it, is easily shown by a very few cases which illustrate its applica- tion. The statute 19 Geo. 2, ch. 30, § 1, enacts that no mariner, who shall serve on board any privateer, etc., employed in the British sugar colonies in the West Indies, nor any mariner being on shore in said colonies, shall be liable to be impress- ed by any officer of a ship of war, unless such mariner shall have before deserted from an English ship of war. A penalty of £50 is given by the same statute, to any person who shall sue therefor, against any officer who shall impress a mariner contrary to its provisions. In an action on this statute against an officer for im- pressing a mariner, judgment was arrested, because the declaration did not allege that the mariner had not previously deserted from any of, his Majesty's ships of war. Spieres v. Parker, 1 Term R. 141. If, however, the statute had, in the enacting or general clause, merely imposed a pen- alty for impressing a mariner in the sugar colonies, and then had added a proviso that the act should not extend to mariners who had deserted from a ship of war, it would not have been necessary to neg- ative, in the declaration, the mariner's former desertion. That would have been matter to come from the other side. As the enacting clause stood, the penalty was not given for impressing a mariner in the sugar colonies, but for impressing a mar- iner there who had not previously deserted from a ship of war. The word unless, in the statute, had precisely the same sense and operation, as if it had been, in so many words, enacted that the penalty should be inflicted on any officer who should im- press a mariner who had not previously deserted. The impressed mariner's not having deserted, entered into the very de- scription, and constituted a part of the transaction made penal by the statute. The case of Gill v. Scrivens, 7 Term R. stands on the same principle. Lord Ken- yon there«comprises the whole doctrine in a single sentence, — " the writ ought to state all those circumstances that entitled the plaintiff to the execution prayed by him." So in the case of the impressed mariner, Lord Mansfield very briefly gave the whole matter, — " the plaintiff must aver a case which brings the defendant within the statute." A statute of Massachusetts forbids labor and travelling on the Lord's day, except from necessity or charity. Labor or travelling, merely, is not forbid- den ; but unnecessary labor and travel- ling, ami labor and travelling not required by charity. The exception is in the enact- ing clause, and the absence of necessity and charity is a constituent part of the description of the acts prohibited ; exactly as if the statute had, in totidem verbis, for- LEADING CRIMINAL CASES. 257 The Pleading of Exceptions and Provisos in Statutes. bidden unnecessary labor, etc., and labor, etc., not demanded by charity. The Slate v. Barker, 18 Vermont, 195. The third section of the same statute forbids inn- keepers, etc., to entertain, on the Lord's day, the inhabitants of the towns where inns are kept, " not being lodgers " in the inns. An indictment on this section was held to be bad, because it did not aver that the persons entertained were not lodgers. Commonwealth v. Maxwell, 2 Pickering, 139 ; Rex v. Dove, 3 Barne- wall & Alderson, 546. See Commonwealth v. Tuck, 20 Pickering, 362, 363. An English statute makes it penal for any person, " other than the persons employed in his Majesty's mint," etc., to make or mend any instrument for coining. This exception must be negatived in an indict- ment. " The want of such authority is part of the description of the offence it- self." 1 East, P. C. 167. So the omission of an executor to file the will of his tes- tator was not the penal matter ; but his unexcused omission. Smith v. Moore, 6 Greenleaf, 236. These few examples are sufficient to illustrate the meaning and the reason of the rule above stated. The reason is sim- ply this, viz. ; that unless an exception in the enacting clause is negatived in plead- ing the clause, no offence, or no cause of action, appears in the indictment, or in the declaration, or no defence on the face of the plea. The case provided for, in the clause pleaded, is not made out on the record. But when the exception or pro- viso is in a subsequent substantive clause of the statute, the ease provided for in the enacting clause may be fully stated, with- out negativing the subsequent exception or proviso. A primd facie case is stated ; and it is for the party, for whom matter of excuse is furnished by the statute, to bring it forward in his defence. It is among the rudimental principles of pleading, that it is not necesaary to allege matter which would come more properly from the other side ; that is, it is not neces- sary to anticipate the adverse party's an- swer, and forestall his defence or reply. " Tis like leaping," as Hale, C. J., said, " before one come to the stile." i Ven- 22* tris, 217. Thus, it is unnecessary, in de- claring on a bond, to negative the per- formance, by the defendant, of its con- ditions ; and so of all other matters of defeasance. It is only when the matter is such, that its affirmation or denial is es- sential to the apparent, or prima) facie, right of the party pleading, that it must be affirmed or denied by him in the first instance. S«e Bunbury, 177; Espinasse, on Penal Statutes, 95 ; 1 Chitty, Crim. Law, 284 ; Stephen on PL 354, 356 ; Williams v. Iiingham Turnpike, 4 Pickering, 345 j Gould on PI. 178; et seq. There are two cases in the old books, which, if not investigated, appear to con- tradict the rule above mentioned. The statute 1 Eliz. ch. 2, § 14, directs that every • person " inhabiting within the realm," etc., shall diligently and faith- fully, " having no lawful or reasonable excuse to be absent," endeavor themselves to resort to their parish church, etc., upon every Sunday, etc., upon pain of punish- ment by the censures of the church, and also upon pain that every person so of- fending shall forfeit, for every such offence, \1d., to the use of the poor of the same parish. In Ann Mannock's case, Godbqlt, 148, it was decided that it was not neces- sary to allege, in an indictment on this section of the statute, that the defendant inhabited within the realm, etc. No reason is assigned, except " that if it were other- wise, it ought to be shewed on the defend- ant's part." In Elizabeth Dormer's case, 2 Leonard, 5, it was held not to be neces- sary to allege, in the indictment, that the defendant had no lawful' or reasonable cause to be absent. It was said, the ex- cuse should come from the defendant. And it is asserte4 in some of the books of- most frequent reference, that under the statute 1 Eliz. ch. 2, it is not necessary to negative the exceptions in the enacting clause. Bacon, Abridg. (Gwillim's ed.) Heresy, etc., D. 7, in margin ; ibid. Indict- ment, II. 3; 1 Hawkins, P. C. (Cur- wood's ed.) 343 ; 2 ibid. 343 ; 1 Chitty, Crim. Law, 283, 284. It will be found, however, that by statute 29 Eliz. ch. 6, § 5, passed before the de- cisions in Godbolt and Leonard, " the 258 LEADING- CRIMINAL CASES. The Pleading of Exceptions arid Provisos in Statutes. indictment of every such offender," against the statute 1 Eliz. ch. 5, § 14, " mentioning the not coming of such offender to the church of the parish, etc., shall be sufficient in the law ; and that it shall not be needful to mention in any such indictment, that the party offending was or is inhabiting, etc. But if it shall happen any such offender then not to be within this realm, etc., that in such case the party shall be relieved by plea to be put in, in that behalf, and not otherwise." It is very clear, that although the statute not only warranted but required the two decisions above stated, yet that neither Ser- geant Hawkins, nor his late editor, nor the compiler nor editor of Bacon's Abridg- ment, had any knowledge of it. Some eminent modern judges, English as well as American, seem also not to have been aware of its existence. Mr. Justice Bul- ler, in particular, would not have invoked 2 Hawkins, P. C. 243, to the aid of Baxter's case, hereafter to be noticed, if he had known or recollected this statute. See 1 East, P. C. 18 ; 2 Chitty, Crim. Law, 20, note d. ; 1 Starkie, Crim. PI. (2d ed.) 176 ; The State v. Barker, 18 Vermont, 195, 198. There are also two recent decisions, made by the twelve judges in England, which, at first view, may seem to contra- dict the rule that requires exceptions in an enacting clause of a statute, to be neg- atived in pleading. The statute 48 Geo. 3, ch. 129, now repealed, enacted that every person who should steal money, goods, etc., from the person of another, " without such force or putting in fear as is sufficient to constitute the crime of rob- bery," should be liable to be transported. In Rex v. Pearce, Russell & Ryan, C. C. 174, and in Rex v. Robinson, ibid. 321, the judges held that it was neither ne- cessary nor proper, in an indictment on this statute, to negative the force and put- ting in fear ; that the words, " without force,'' etc., were to be understood not charged to be done with force, etc. If the force, etc., had been negatived, proof of force, etc., would have entitled the defend- ant to acquittal, and he would have been detained for presentment on a charge of robbery ; and if convicted of robbery, he must have been sentenced to execution, instead of transportation. .Under this con- struction of the statute, it is obvious that the doctrine above considered was not im- pugned by these decisions ; and doubtless the true intentions of parliament, as to the mitigation of punishment, were thereby affected. The case of Rex v. Baxter, 2 East, P. C. 781 ; 2 Leach, C. C. (4th London ed.) 578 ; 5 Term R. 83 ; is less easily brought within the established principle that regu- lates the negativing of exceptions. By stat- ute 22 Geo. 3, ch. 58, "in all cases where any goods or chattels shall have been feloniously taken or stolen, (except where the person actually committing the felony shall have been already convicted of grand larceny, or some greater offence) every person who shall buy or receive any such goods or chattels, knowing them to have been so taken or stolen, shall be held and deemed guilty of, and may be punished for, a misdemeanor, and shall be punished by fine, etc., although the principal felon be not before convicted of the said felony, and whether he be amenable to justice or not." Upon an indictment on this statute, it was held by a majority of ten of the judges, in Baxter's case, ubi supra, that it was not necessary to aver that the prin- cipal offender had not been convicted. And so the law is laid down in Archbold's Summary of Pleading in Criminal Cases, p. 153, and in 3 Chitty, Crim. Law, 959. Buller, J., in giving their opinion, says, (as a second ground for it, and the only one now in question,) that if it were neces- sary to make such averment, " it would be merely stating a negative averment, which need not be proved by the prose- cutor. Such a fact is matter of evidence to be proved by the defendant, and which, when proved by him, would entitle him to an acquittal." This reason is neither satisfactory in itself, nor sustained by authority. If it be conceded that a prosecutor never need to prove a negative averment, i. e., that the burden of proof, in such case, is always on the defendant ; yet this is no excuse for LEADING CEIMINAL CASES. * 259 The Pleading of Exceptions and Provisos in Statutes. ment is necessary to show a cause of ac- tion, or ground of accusation, described in a statute. But such a concession is not required by the authorities. In criminal and in civil proceedings, it often lies on him, who asserts a negative fact, to prove it. In criminal proceedings, especially, the mere legal presumption of innocence fre- quently makes a prima facie case for the defendant, and drives the prosecutor to prove the negative. See 2 Gallison, 499 ; 1 Bosanquet & Puller, 468 ; 1 Carrington & Payne, 538 ; 5 Maule & Selwyn, 206 ; 1 Hawkins, P. C. (Curwood's ed.) 242 ; Archbold, Crim. PI. 66; 2 Bussell on Crimes, (2d ed.) 673, 691, 694. Besides, does not the very rule, which requires exceptions to be negatived, of course import the necessity of making neg- ative averments? And are not all the cases, hereinbefore cited in illustration of the rule, examples of the fatal effect of not " stating a negative averment ? " See 1 Starkie, Crim. PI. (2d ed.) 172. Per- haps some of the remarks that fell from the court in United States v. Smith, 1 Gal- lison, 261, were not so carefully weighed as they would have been, if the case had turned on the point here considered. The decision, in that case, no one will question. If then Buller, J., had assigned no bet- ter reason than this, for the decision in Baxter's case, or if no better reason could be assigned, the law of that case, it would seem, might safely be denied. Prior and subsequent decisions are directly against it. The case of Rex v. Pollard, 2 Lord Raymond, 1370, which was regarded in Baxter's case, as a sufficient precedent, is so reported that no reason can be found for it, on the face of the report, except that previous indictments had been drawn in the same way. Sir M. Foster, in his Crown Law, p. 374, says of Pollard's case, " the court would not, upon motion, arrest judgment upon an exception to the indict- ment, which was never taken before ; and which must overset every judgment that had* been given on the statute. This was a •solid and a rational principle founded in political justice. For in cases of this kind, communis error facit jus." The passage in Hawkins, also relied on by Buller, J., as has been before seen, utterly fails to sup- port the doctrine for which it was cited. Perhaps, however, a sufficient reason, not suggested by Buller, J., may be found for the decision in Pollard 's and Baxter's cases. The cases and books, already cited, show that the reason why exceptions in an enacting clause should be negatived, is, that otherwise the record does not show that the act prohibited, etc., has been done. Furthermore, in Rex v. Pemberlon, 2 Burrow, 1037, the court say, " where the words of a statute are descriptive of the nature of the offence, etc., there is a ne- cessity to specify in the particular words of the statute." And in Rex v. Jarvis, 1 East, 647, note, Foster, J., says, " where negatives are descriptive of the offence, there they must be set forth." Accord- ingly, Starkie remarks, that " in Baxter's and Pollard's cases there was no necessity to call in aid so general a rule," viz. : that negatives need not be affirmed, " for there the offence consisted in receiving stolen goods, knowing them to have been stolen ; and though the authority of the court to try the offenders depended upon the negative circumstance that the prin- cipal felons had not been convicted, the definition of the offence itself remained just as it was before, wholly clear from any negative description." 1 Starkie, Crim. PI. (2ded.) 176. Some writers and judges have been led into darkness and confusion by supposing " the enacting clause " to mean the " sec- tion " of the statute, (as now divided into numerical parts,) in which the matter is described and enacted. This is a misap- prehension of the meaning of the terms. The only question, on this point of plead- ing, is, whether the exception is incor- porated with the substance of the clause which defines the thing required to be done or omitted, or describes the qualifi- cation or authority of the person author- ized or forbidden to do or to omit it, so as to constitute a part of the definition or description of the act, omission, or person. If the exception (by whatever phraseology indicated) is in a substantive clause, sub- sequent to the enacting or descriptive clause ; or, as Lord Tenterden expresses 260 ' LEADING CRIMINAL CASES. The Pleading of Exceptions and Provisos in Statutes. it, " in a separate and distinct clause ; " it is matter of defence, and to be shown by the other party, though it be in the same section, and even in the next sentence. Archbold, Crim. PL 25 ; Archbold, Civil PI. (American ed.) 159; Teel \. Fonda, 4 Johnson, 304 ; Rex v. Matters, 1 Barne- wall & Alderson, 362 ; Steel v. Smith, 1 Barnewall & Alderson, 94. In the last of these cases, Bayley, J., says, " where there is an exception so incorporated with the enacting clause, that the one cannot be read without the other, then the exception must be negatived." There is another source of no small confusion on this subject, viz. ; the dis- tinction so often asserted to have been established between summary convictions, and indictments and declarations. But it will be more convenient to discuss that topic at the close of this note. Some in- termediate matter may make the discus- sion less obscure in that place than in this. A middle class of cases requires notice ; namely, where the exception is not in ex- press terms introduced into the enacting clause, but only by reference to some sub- sequent clause, or some prior statute ; as where the words " except as hereinafter mentioned," or words of similar import, are employed. The rule, in these cases, is, that all circumstances of exemption and modification, whether applying to the of- fence or the person, that are incorporated, by reference, with the enacting clause, must be distinctly negatived. Verba relata inesse videnlur. See Rex v. Pratten, 6 Term R. 559 ; The State v. Palmer, 18 Vermont, 570 ; 1 Starkie, Crim. PI. (2d ed.) 176 ; 2 Saunders, on PI. and Ev. 830 ; 1 Paley, on Convictions (Do wling's ed.) 114. South- well's case, Popham, 93, was decided dif- ferently. But it seems to have " had its day." It cannot stand with subsequent cases, unless, on the ground of a distinction between a proviso and an exception; which will presently be considered. This rule is applied to priyate instru- ments, as well as to statutes. Indeed all the principles of the doctrine here dis- cussed are entirely applicable to the plead- ing of contracts. The case of Vavasour v. Ormond, before cited, was debt for rent. The declaration alleged that the defend- ant, by the indenture of demise, was to pay yearly a rent of £160. The indenture contained an engagement to pay that sum yearly, " except as hereinafter mentioned." There was also an engagement by the defendant to expend £600 in erecting a steam engine on the premises ; and there was a subsequent proviso, that if the de- fendant should pay to the plaintiff £300, in part of the £600, within three years, the rent should be only £130 yearly. Lord Tenterden and his associates held that the matter of the proviso must be taken as part of the exception in the res- ervation of rent, and that the exception ought to have been negatived in the dec- laration ; that it was introduced into the reservation, by reference to the subsequent matter in the indenture, "and must be considered as an exception in the general clause." " There is a technical distinction be- tween a proviso and an exception, which is well understood." Per Abbott, J., 1 Barnewall & Alderson, 99. This distinc- tion, though often mentioned in the books, is not often explained. When the terms are used with technical precision, the dis- tinction between them is perhaps this, to wit ; an exception exempts, absolutely, from the operation of an engagement or of an enactment ; a proviso defeats their operation,' conditionally. An exception takes out of an engagement or enactment something which would otherwise be part of the subject-matter of it ; a proviso avoids them by way of defeasance or ex- cuse. See 2 Lilly, Ab. 493-496 ; Plow- den, 361 ; Carter, 99, et seq. ; 1 Saunders, 234 a, note to 5th ed. If this be a correct notion, substantially, of the technical difference between these terms, it is manifest that they are seldom employed in their strict technical sense, in the discussion (whether by writers or judg- es) of the doctrine here reviewed. 1^ is equally manifest, that the true application of this doctrine depends, not on the terms t that may be used in a statute or contract, but on the effect of those terms, (accord- ing to established rules of legal construe- LEADING CRIMINAL CASES. 261 Tho Pleading of Exceptions and Provisos in Statutes. tion,) in the one or the other of the modes just mentioned. See 1 Lilly, Ab. 559 ; Plowden, 363, 465; Sheppard, Touch. 82 ; 1 Term R. 645. It is obvious, also, . that there are numerous instances, both in statutes and contracts, where the legal effect of the terms* is neither that of an exception, nor of a proviso, technically- taken ; but of a qualification or modifica- tion only. On adverting now to the accurate mean- ing of " enacting clause" in a statute, and " general clause " in a private instrument, it will readily occur to the reader, that a technical proviso will not be likely ever to be found in either. Such proviso is hardly consistent with such clauses. For the same reason, a technical exception will hardly be found in a " distinct or subse- quent clause." If there are, or can be, any instances of such a position of such provisos and exceptions, then Mr. Day's rule, in a note to his edition of Chitty on PI. vol. 1, p. 229, may be as correctly ex- pressed as it is correct in meaning. He says : " If the proviso furnishes matter of excuse for the defendant, it need no^ be negatived in the declaration, but he must plead it. In this point of view, it is im- material whether the proviso be contained in the enacting clause, or be subsequently introduced in a distinct form. It is the nature of the exception, and not its loca- tion, which decides the point." The same is true, and on the same principle, of qualifications and modifications; as some of the cases, first cited in this note* con- clusively show. If they are descriptive, they must be negatived; if excusatory, they need not be. It remains to be inquired, with refer- ence to the rule of negativing matter in- corporated with the enacting or general clause, by reference therein to matter elsewhere, whether there is any distinction between technical provisos and exceptions, that will save Southwell's case, above men- tioned ; whether, when the matter thus incorporated is an exception, it must be negatived ; but need not be, wnen it is a proviso. In Rex v. Pratten, ubi supra, the matter incorporated, by reference, with the enact- ing clause on which the information was founded, was an exception in a former section of the same statute ; and it was decided that the exception in that section should have been negatived. In Southwell's case, the matter thus incorporated was in a proviso in a subsequent section ; and it was held that this proviso need not be neg- atived. Sergeant Hawkins, on the au- thority of this case, says : " There is no need to allege, in an indictment, that the defendant is not within the benefit of the provisos of a statute whereon it is founded J even as to those statutes, which in their purview expressly take notice of the pro- visos." 2 Hawkins, P. C. ch. 25, § 113. And Chitty reaffirms the same position. 1 Chitty, Crim. Law, 283. Rex v. Pratten, was a case of conviction before magistrates, and Southwell's case was an indictment. It will probably be seen, hereafter, that this diversity war- rants no difference of decision on this point of pleading. If matter referred to in the enacting clause is therewith incorporated and makes a part thereof, what is the difference in principle, whether that matter stand as an exception or as a proviso, in the other section or statute ? Whatever it rflay be there, is it not technically an exception here ? Or if not an exception, is it not a qualification or modification, which, as has been seen, must be distinctly neg- atived ? Several approved writers have already been cited (p. 260) who make no men- tion of this distinction. See also 1 Saun- ders, 262 a, n. 1. Vavasour v. Ormond, ubi supra, was a case in which a proviso, or modification, in a distinct substantive clause, was held to be, by relation, an ex- ception or modification in the general clause of a contract. And in Steel v. Smith, ubi supra, which was an action for a pen- alty imposed by statute, the court fully recognized the same doctrine. Lord El- lenborough said : " There are not, in this case, any words of reference or of virtual incorporation, but this is a distinct and substantive proviso. On that ground, I think, it was not necessary for a plaintiff to notice it in his declaration." Abbott, J., 262 LEADING CRIMINAL CASES. The Pleading of Exceptions and Provisos in Statutes. said : " Here are not in the enacting clause any words, such as ' except as hereinafter provided.' If any such words had been introduced, it might fairly have been con- tended that the subsequent proviso was incorporated with the enacting clause ; and then the objection might have been supported." That the word " proviso " was here used in its strict technical sense, will be demonstrated by inspection of the statute on which this case was founded. See 1 Barnewall & Alderson, 97, in the margin. In Massachusetts, it has been held that there are a class of cases to which these principles do not apply. " The general principle is," says Dewey, J., in Lamed v. The, Commonwealth, 12 Metcalf, 240, 242, " that where, by statute or statutes, there is a gradation of offences of the same spe- cies — as in the various degrees of punish- ment annexed to the offence of malicious burning of buildings, or in the various grades of the offence of larceny, it is not necessary to set forth a negative allegation, alleging that the case is not embraced in some other section than that which, upon the evidence, may be found to apply in the case on trial, and by virtue of which the punishment is to be awarded. This subject was much considered in the case of Com- monwealth v. Squire, 1 Metcalf, 258, and the principle was there fully stated. If, therefore, certain acts are, by force of the statutes, made punishable with greater severity, when accompanied with certain aggravating circumstances, thus creating two grades of crime, it is no objection to an indictment, that it changes the acts which constitute the minor offence, unac- companied by any averment that the aggravating circumstances did not exist. In such cases, the offence charged is to be deemed the minor offence, and punishable as such." See Commonwealth v. Tuck, 20 Pickering, 356 ; Devoe v. The Common- wealth, 3 Metcalf, 316. The case of Rex v. Marshall, 1 Moody, C. C. 158, is at variance with this doctrine. In that case it was held that an indictment is fatally defective which may apply to either of two different definite offences, and does not specify which. In Massa- chusetts, the doctrine is, as already stated, that it is not necessary to refer to the particular statute upon which the indict- ment is founded. This was directly adjudged in Commonwealth v. Griffin, 21 Pickering, 523. The question arose upon an indictment under the Kevised Statutes, ch. 127, § 15. That section made the having of ten or more pieces of coun- terfeit coin in possession, with intent to pass the same as true, a criminal offence, and prescribed the punishment therefor. The sixteenth section of the same chapter made the having of less than ten pieces of counterfeit coin in possession, with intent to pass the same as true, a criminal offence, and prescribed the punishment therefor. Upon the trial of a case arising under the statute, the jury found the defendant guilty of having in his possession a number of pieces, less' than ten, of counterfeit coin, with intent to pass the same as true ; and it was contended that such finding did not support the indictment; the offence charged being under § 15, and the offence proved being under § 16. There, the argument was, that the party has a rigljt to have his offence distinctly set forth. But it was held, that it was not necessary, in the indictment, to indicate the particular section, or the particular statute, upon which it is founded ; that if the facts alleged in the indictment, and found by the verdict, show that the act done was a crime punishable by statute, it is sufficient to warrant the court in render- ing a judgment. B»t it is said there is a diversity to be noted, in applying the rules of pleading, to summary convictions before justices, and to indictments and declarations. It is asserted that in these summary pro- cesses, the utmost strictness is required in negativing exceptions and provisos, in whatever part of the same or of an ante- cedent statute they may be inserted. There is nothing, perhaps, on which the books in most frequent use are less ac- curate, than on this point. Sergeant Hawkins says : " A conviction on a penal statute ought expressly to show that the defendant is not within any of its provisos ; for since all the proceedings are in a sum- mary manner, it is but reasonable that LEADING CRIMINAL CASES. 263 The Pleading of Exceptions and Provisos in Statutes. Such a conviction should have the highest certainty, and satisfy the court that the defendant had no such matter in his favor as the statute itself allows him to plead." Chitty lays down the same rule and gives the same reason for it. He asserts that " convictions upon penal statutes require in this respect " (the negativing of excep- tions, &c.) " much greater strictness than in indictments ; for in general, it is neces- sary to show by negative averments, that the defendant is not within any of the provisos or exceptions of the statute. It has indeed been said, that where the pro- viso is subsequent to, and independent of, the enacting clause, it is unnecessary to negative its exceptions ; but this seems contrary to the whole course of the de- cisions." 2 Hawkins, P. C. ch. 25, § 113 ; 1 Chitty, Crim. Law, 284-5 ; Bacon, Ab. Indictment, H. 3. Upon a scrutiny of the authorities, how- ever, it is found that although judges and writers have often asserted that there is a distinction between summary convictions and indictments, not only as to pleading, but also as to the statement of the evidence and the negativing of exceptions, etc., in the adjudication, yet that, at this day, this distinction is not acknowledged. See 1 Saunders, 262 a, note 1 ; Rex v. Slone, 1 East, 639. Sed vide also 1 Paley on Con- victions, (Dowling's ed.) 112, 123, 207-8; Strange, 551, 1101; Andrews, 289; 1 Term R. 125, 322; 8 Term R. 543; 1 Phillips, Ev. ch. 7, § 4. The cases in which the distinction above mentioned has oftenest been spoken of, are convictions on the English game laws. A very brief notice of these laws, and the decisions under them, may there- fore be here given. The statute 22 and 23 Car. 2, ch. 25, declares "that all and every person and persons, not having lands and tenements, or some other estate of inheritance, in his own or his wife's right, of the clear yearly income of £100 per annum, or for term of life ; or having lease or leases of 99 years, or for any longer term, of the clear yearly value of £130, other than the son and heir appar- ent of an esquire, or other person of higher degree, etc., etc.," are to be persons, by the laws of the realm, "not allowed to have or keep for themselves, or any other person or persons, any guns, bows, grey- hounds, etc., gins, snares, etc., but shall be, and are hereby prohibited to have, keep, or use the same." By statute 5 Ann, ch. 14, it is enacted, " that if any person or persons, not qualified by the laws of this realm so to do, shall keep or use any grey- hounds, etc., or any engine to kill or de- stroy the game, and shall be thereof con- victed, etc., by the justice or justices of peace, where such offence is committed, etc., the person or persons so convicted shall forfeit the sum of £5," etc. By statute 8 Geo. 1, it is made lawful, upon any of- fence to be committed against any law then in being, for the better preservation of the game, for any person to proceed to recover the penalty by action of debt, or on the case, etc., as well as by information and conviction before a justice of the peace. It is perfectly settled, that in an infor- mation on statute 5 Ann, under which a summary conviction is sought before a jus- tice or justices, it is neccessary to negative all the qualifications enumerated in statute 22 and 23 Car. 2 ; that it is not sufficient to use the words of the former statute, and merely allege that the defendant was not qualified by the laws of the realm, etc. Rex v. Jarvis, 1 Burrow, 148 ; Rex v. Earnshaw, 15 East, 456. The ground on which the courts have uniformly held that in convictions on the game laws, the qualifications, in statute of Car. 2 must be negatived, seems to be, that this statute is quasi incorporated with the statute of Ann. See opinions of Lord Mansfield, and Denison, J., 1 East, 647, note ; and of Lord Kenyon, 1 East, 650. So far then, there is no distinction of prin- ciple between convictions and indictments and declarations. But in the application of this principle of quasi incorporation, the courts have hitherto stopped short. In Bluet v. Needs, Comyns, Kep. 523, it was decided that in an action of debt it was sufficient to nega- tive, in the declaration, that the defendant was qualified by the laws of the realm, with- out also negativing the qualifications in the 264 LEADING CRIMINAL CASES. Indictment — Pleading — Conspiracy. statute of par. 2. It is to be remarked, As this last topic is of little or no direct however, that Foster, J., in Rex v. Jarvis, practical importance in this country, where said he was " strongly inclined against the a trial by jury is secured, ultimately, to authority of the case in Comyns." 1 East, every person charged with an offence, it 647," note. has been examined in no further detail If this distinction between an infor- than seemed necessary for the purpose of mation and an action on the game laws may guarding against the deduction of unwar- be regarded as established, there is an ranted inferences from books which are anomaly in the law. For in all other cases, placed in every student's hands, it is believed, there is no distinction, as to This note is reprinted, with the consent pleading, between summary convictions, of the writer, with a few additions, from and actions and indictments. The only the American Jurist, vol. 8, p. 232 ; it exception that has been found, has been contains the dearest and most accurate already stated, and this, as has been seen, statement of this branch of the law of has been questioned by high authority. criminal pleading extant. H. Commonwealth v. William P. Eastman and Others. 1 March Term, 1848 Indictment — Pleading — Conspiracy. It is in the discretion of the court, in which an indictment is pending, to quash it, or to leave the defendant to a motion in arrest of judgment, and the refusal to quash an indictment is not a proper subject of exception. An indictment ought not to be quashed, in a doubtful case, but only when it is clearly insuf- ficient to sustain a judgment against the defendant. In order that the papers and letters of an insolvent debtor, produced by his assignee, maybe competent evidence as coming from the possession of the insolvent, it must be shown that the assignee received them from the messenger, and that the latter took possession of them under his warrant, as papers relating to the estate of the insolvent. Letters addressed to a party,, and found in his possession, are not evidence against him of the matters therein stated, unless the contents have been adopted or sanctioned by some reply, or statement, or act done, on his part, and shown by other proof. Where one of two persons, who had examined and appraised the assets of an insolvent debtor, was called as a witness to the value thereof, and produced a paper signed by him- self and his associate, containing the results of their appraisal ; it was held, that such paper could not be read to the jury, as the joint certificate of the witness and his asso- ciate, without first calling the latter to testify to its accuracy. An indictment for a conspiracy alleged, in the first count, that the defendants conspired together to cheat and defraud P. S. S. of his goods ; in the second, that they conspired to get the goods of P. S. S. into their possession, under color and pretence of buying the same; and, in the third, that they conspired to get possession of the goods of P. S. S., upon trust and credit, and then to remove the same out of the Commonwealth. On the trial of this indictment, evidence having been given of a purchase of goods by the defend- ants of P. S. S., ostensibly for cash, but, in fact, on the short credit resulting from the indulgence usually allowed on cash sales : — it was held, that the prosecuting officer might inquire of a witness, whether, at the time of the sale, the standing and credit of the defend- 1 1 Cushin<». IBS LEADING CRIMINAL CASES. 265 Indictment — Pleading — Conspiracy. ants were such, that they could have bought goods on credit ; — also, that other purchases of goods, made by the defendants of other persons, at about the same time, and under the same circumstances, with the purchase of P. S. S., were admissible in evidence, to show the nature and extent of the defendants' business, and to prove the criminal intent alleged in the indictment ; — also, that evidence of the defendants' having obtained bills of lading, about the same time, and forwarded them to their correspondents in other places, accompanied by drafts thereon, before the goods described in such bills of lading had been in fact purchased, was admissible to prove the criminal intent. It is competent for a party, after having closed his case, so far as relates to the evidence, to introduce additional evidence, by the cross-examination of the witnesses on the other side, for the purpose of more fully proving his case. Where handwriting is to be proved by comparison, the standard used for the purpose must be a genuine and original writing, and must first be established by clear and undoubted proof. Impressions of writings, taken by means of a press, and duplicates made by a copying machine, are not originals, and cannot be used as standards of comparison. Where several persons are jointly indicted and on trial, the submitting of the case of one of them to the jury, by itself, in the course of the trial, at the instance of the other defend- ants, in order that such defendant, if acquitted, may be called as a witness by them, is a matter peculiarly within the discretion of the presiding judge, and depending upon his view of the evidence ; to be allowed, when there is no evidence against the party, and to be refused where there is such evidence, although, in the opinion of the judge, it may be altogether insufficient for a conviction. The obtaining of goods on credit, by an insolvent person, without disclosing his insolvency, and without having any reasonable expectation of being able to pay for such goods, in and by means of the fair and ordinary course of his business, is not of itself such an un- , lawful act, as may be the subject of a conspiracy ; though, it would be otherwise, it seems, in the case of a purchase made without any expectation of payment. The obtaining possession of goods, under the pretence of paying cash for them, on delivery, the buyer knowing that he has no funds to pay with, and •appropriating the goods to his own use, in fraud of the seller, is such a fraud or cheat as may bo the subject of a con- spiracy. In an indictment for a conspiracy to do an act, which is a well known and recognized offence at common law, the object of the conspiracy may be described by the general terms by which it is familiarly known ; if the alleged purpose be the doing of an act, which is not unlawful in itself, but which is to be effected by the use of unlawful means, those means must be particularly set forth ; if it be the doing of an act, which is not an offence at com- mon law, but only by statute, the purpose of the conspiracy must be set forth in such a manner as to show that it is within the terms of the statute. When a conspiracy is plainly and technically alleged, the acts done in pursuance of it need not to be set out ; or, if set out, they need not be proved. It is not a sufficient statement of the offence, in an indictment for a conspiracy to cheat, to allege that the defendants conspired together to cheat and defraud P. S. S. of his goods ; or to acquire and get into their possession the goods of P. S. S., under color and pretence of buying the same ; or to get possession of the goods of P. S. S., upon trust and credit, and then to remove and transport them out of the Commonwealth. The words " cheat and defraud " do not necessarily import any offence, either by statute, or at common law; and, therefore, an indictment for a conspiracy, in which the object is alleged to be to " cheat and defraud," must set forth in detail such further allegations as will show the object to be an offence, either by statute or at common law. The defendants, William P. Eastman, Arthur M. Eastman, and» Townsend Fondey, were indicted in the Municipal Court of the city of Boston, at the April term, 1844, on fifteen charges of conspiracy to cheat and defraud as many different individuals and firms named in the indictment. The several charges were set forth in the same 23 266 LEADING- CRIMINAL CASES. Indictment — Pleading — Conspiracy. manner, each being the subject of three counts, the first, second, and third of which, in each case, were in the same form, substantially, with the corresponding counts in every other. The contents of the indictment will sufficiently appear from a statement of the first three counts, in which the defendants are charged with one of the fifteen alleged conspiracies. The first count alleged, that the defendants, " being evil disposed persons, and devising and intending one Philo S. Shelton, &c, to injure and defraud, on the twenty-sixth day of March, in the year eighteen hundred and forty-four, at, &c, did unlawfully conspire, combine, confederate, and agree together, the said Shelton to injure, cheat, and defraud of his moneys, goods and chattels, against the peace," &c. The second count alleged, that the defendants, on, &c, at, &c, " did falsely conspire, combine, confederate, and agree among them- selves, unlawfully and fraudulently to acquire and get into their hands and possession the goods, wares, and merchandise of one Philo S. Shelton, &c, under color and pretence of buying the same of and from the said Shelton, and that, in pursuance of, and according to the conspiracy, combination, confederacy, and agreement aforesaid, they the said defendants then and there falsely, unlawfully, and de- ceitfully did obtain and acquire of the said Shelton, one hundred and ten bags of coffee, being the proper goods and merchandise of him the said Shelton, of the value of thirteen hundred and twenty-eight dollars, under pretence of buying the same, and did then and there, in pursuance of the conspiracy, combination, and agreement afore- said, cheat and defraud him thereof; against the peace," &c. The third count alleged, that the defendants, " wickedly and un- justly devising and intending one Philo S. Shelton, &c, to defraud and cheat of his goods, property, and merchandise, on, &c, at, &c, did falsely and fraudulently conspire, combine, confederate, and agree together among themselves, to obtain and get into their hands and possession, of and from the said Philo S. Shelton, his goods, prop- erty, and merchandise, upon trust and credit, and then to remove, transport, and send the same out of the said Commonwealth, and defraud him thereof; and that the said defendants, in pursuance of, and according to the conspiracy, combination, confederacy, and agreement aforesaid, so as aforesaid had, did then and there falsely and fraudulently obtain and get into their hands and possession, of *en\d from the said Shelton, one hundred and ten bags of coffee, of his proper goods, wares, and merchandise, altogether of the value of thirteen hundred and twenty-eight dollars, upon trust and credit; and in further pursuance of the conspiracy, combination and confed- eracy aforesaid, so as aforesaid had among themselves, they the said LEADING CRIMINAL CASES. 267 Indictment — Pleading — Conspiracy^ defendants, before the time of payment for the said goods, property, and merchandise had arrived, did then and there make certain pre- parations, and did then and there attempt, and did then and there do certain overt acts to remove, transport, and send the same out of the said Commonwealth, and did then and there, in manner aforesaid, cheat and defraud the said Shelton of his goods, property, and mer- chandise aforesaid ; against the peace," &c. The third count, in some of the charges, varied from the preceding, in alleging that the defendants instead of attempting to remove, &c, did actually remove and transport, the goods mentioned therein out of the Commonwealth. At the succeeding May term, the defendants moved that the in- dictment be quashed, on the ground that no offence was set forth therein. This motion was argued before Allen, J., by whom the cause was continued for advisement, until the July term, when the opinion of the court was stated by Ward, J., disallowing the motion. It being intimated, however, at the same time, that the court would accede to any arrangement or disposition of the case, by which the questions of law arising on the indictment might be first argued in this court, the defendants demurred to the indictment ; and the de- murrer being overruled, the defendants thereupon alleged exceptions to the order of the Municipal Court overruling the same, and thus brought the case before this court. At the March term of this court, 1845, upon the cause being opened, the court declined hearing the demurrer argued, unless upon the understanding, that the judgment upon it, if in favor of the Com- monwealth, should be final. The defendants thereupon withdrew their exceptions, and the case was remanded to the Municipal Court for further proceedings. In the Municipal Court, the defendants renewed their motion to quash the indictment ; and the case being continued for a hearing thereon, before the judges of the Court of Common Pleas, at their semiannual meeting in July, the motion was then partially argued by B. Choale and G. Bemis, for the defendants, and & D. Parker, for the Commonwealth ; but the judges declining to interfere in the summary manner proposed, (unless the defendants would agree to abide by the decision, if against them, which they declined doing,) the motion was refused and the case was directed to be tried, and was accordingly tried, in the Municipal Court, before Cushing, J., at' the September term, 1845. 1 1 It may be useful to state, for the information of those who are not conversant with the system of criminal procedure which is in use in this Commonwealth, that the right to take exceptions to the orders, rulings, and instructions of the judge, before whom .268 LEADING CRIMINAL CASES. Indictment — Pleading — Conspiracy. After the empanelling of the jury, and before the commencement of the trial, the defendants renewed their motion to quash the indict- ment, and objected to the admission of any evidence in support of it ; but the motion and objection were overruled, and the trial pro- ceeded. The defendants were convicted of all the charges in the indictment except one in reference to which no evidence was given ; and they thereupon alleged exceptions to the or,der above mentioned, overruling the motion to quash, and to other orders, rulings, and in- structions of the judge, before whom the trial took place. The following outline of the principal facts, as they are stated in the bill of exceptions, will be sufficient to explain the points of law, presented thereby for the consideration of the court. The three defendants, at the time of the transactions which were the subjects of the several charges in the indictment, had for two or three months been partners in trade in the city of Boston, under the firm and style of Eastman, Fondey, and Company. Two of the part- ners had been previously connected in business with another person, under the firm and style of Eastman, Fondey, and Hollister, which partnership had been dissolved, and to the business of which the first named firm had succeeded. The defendants voluntarily became insolvent on the 29th of March, 1844. For the three or four weeks preceding their insolvency, they had made somewhat extensive purchases of goods, ostensibly for cash, though really on the short but indefinite term of credit, usually ac- corded at the pleasure of the sellers on sales for cash, and sometimes extending to a period of several days, or a week, or even longer. The goods, which were the subjects of many of these purchases, were immediately shipped for New York, Baltimore, and other places. The sellers had never received payment, though the sales were made for cash ; but, in some instances, they had obtained possession of the goods sold, by the institution of replevin suits, which were still pending. Fifteen transactions of this description were the foundation of the an indictment is tried, is confined to the defendant, and is denied altogether to the Commonwealth. The judges of the Court of Common Pleas, therefore, who are ex offi- ciis judges of the Municipal Court of the city of Boston, and who have original and ex- clusive jurisdiction of all indictments, (except those for capital crimes,) consider it to be their duty, in all cases, where the law is doubtful, but important to be settled, to rule against the defendant, in order that the case may be brought to this court, and the law arising therein authoritatively determined. These were in substance the reasons given by the Court of Common Pleas, for refusing fully to hear the parties on the mo- tion for quashing the indictment, in this case, and directing it to be tried in the ordi- nary manner. LEADING CRIMINAL CASES. 269 Indictment — Pleading — Conspiracy. present indictment ; and the general ground upon which the prose- cution rested was, that, from the circumstances attending and shortly preceding these purchases, it was manifest that they were not made in the fair course of business, but were effected for the purpose of defrauding the seller's of their goods, and in pursuance of a previous conspiracy to cheat and defraud. The purchases in question appeared to have been made in the usual manner of sales for cash, at fair prices, and unaccompanied by any circumstances calculated to induce suspicion on the part of the sellers. But, in order to show that they were effected in pursuance of a conspiracy to cheat, a vast amount of 'evidence, derived from a great variety of sources, was introduced. The questions presented by the bill of exceptions, which arose principally upon the admission of evidence at the trial, against the objections of the defendants, are therein set forth as follows : — 1st. Certain letters, in the custody of the defendants' assignee in insolvency and produced by him, purporting to be addressed to the defendants by various correspondents, were offered in evidence, with- out any previous proof of the genuineness of the handwriting of the supposed writers. It appeared from the testimony of the messenger in insolvency, that, on the day after the defendants applied for the benefit of the Insolvent Act, the messenger, accompanied by some of the creditors of the defendants, went to the store occupied by the latter, the key of which had been previously delivered to him by the defendants, and broke open one of their desks, having no key for unlocking it, and took therefrom certain papers which were delivered by him to the assignee ; but the witness could not identify any of the papers produced by the assignee, as those which had been taken possession of by him as messenger. The letters were objected to as incompetent and irrelevant, and also because they were not accompanied by proof of the handwriting of the persons, by whom they purported to be signed. The attorney for the Commonwealth contended, that they were admissible as evi- dence of parts of transactions between the defendants and the per- sons whose names they purported to bear, and as evidence to be considered in connection with the answers, or other parts of the cor- respondence, which he said he should subsequently offer, that certain things were stated to the. defendants, and done by them. The letters were then admitted and read to the jury. Subsequently, certain letters, or what purported to be letter-press copies of letters, addressed by the defendants to their correspondents, (the same being also produced from the custody of the assignee) 23* 270 LEADING CRIMINAL CASES. Indictment — Pleading — Conspiracy. were read by the attorney for the Commonwealth, in connection with the letters above mentioned, without objection. 2d. A schedule of the assets, furnished by the defendants to their assignees, was put. by the attorney for the Commonwealth into the hands of a witness called by him, and the witness was then inquired of, whether any of the assets mentioned in the schedule were of any value, and, if so, which of them, and what was their value. This question was objected to, but admitted ; and the witness then pro- duced and read in answer a paper, which was also objected to but admitted. The paper purported to be a schedule of the assets of the defendants, both as a partnership and as individuals, with a certifi- cate attached, signed by the witness and another person, stating that they had examined the assets of the defendants, and, as far as they could form an opinion, had annexed a schedule of such amounts as might be considered good and collectible. 3d. A witness, called by the attorney for the Commonwealth, was asked by him, whether the credit and standing of the defendants were such, that they could have bought goods on credit, at the time they purchased of the witness. This question was objected to, but permitted to be asked. 4th. Ten witnesses were called by the attorney -for the Common- wealth, to prove separate and distinct sales by each of them to the defendants, in the month of March, 1844, (at or about the time of the transactions which were the subject of the indictment) of the same description of goods, and under the same circumstances, sub- stantially, as those charged in the indictment. Each of these sales was a separate and distinct transaction. For two of these sales in- dictments had been found, and were still pending, against one of the defendants. This evidence was objected to, except so far as it went to prove the whole amount of the defendants' purchases at the period in question. But it was admitted as evidence of the intent alleged in the indictment. 5th. Evidence was offered, on the part of the prosecution, to show that the defendants, in some instances, during the month of Febru- ary, 1844, procured bills of lading to be made out, which they for- warded to their correspondents in New York, accompanied by drafts for the whole or a part of the amount thereof, a few days before the goods described in such bills of lading were in fact purchased. This evidence was objected to, but admitted. 6th. The attorney for the Commonwealth, after the case had been closed for the prosecution, in order to show the participation of the defendant, Fondey, in the transactions which were the subject of the indictment, proposed to cross-examine the defendants' witnesses, for LEADING CRIMINAL CASES. 271 Indictment — Pleading — Conspiracy. the purpose of proving Fondey's signatures to some of the letters, signed in the name of the firm, which had been read by the attorney in evidence for the prosecution, without the tender of any such proof, although he had proved some specimens of Fondey's handwriting, with a view to a comparison of the same. This evidence was ob- jected to, but admitted. 7th. The copies of letters, in the letter-book of the defendants, which was produced with the other books and papers by their as- signee, appeared (upon inspection merely, without other evidence,) to be either impressions from the letters themselves, taken at the time they were written by means of a press, or to have been written by the same hand by which, and at the same time when, the originals were written, by means of a machine. And, for the purpose of en- abling the jury, by a comparison of hands, to determine whether a particular paper produced was in Fondey's handwriting, the attorney for the Commonwealth proposed to ask a witness who had seen Fon- dey write, whether a letter in the letter-book was in his handwriting. This question was objected to, but admitted. 8th. When the case had been closed on the part of the prosecu- tion, the defendants' counsel moved the court, that the case of Townsend Fondey should be first put to the jury, with instructions that there was no evidence against him, and no evidence to warrant his conviction; and, generally, that the court should give such a direction to his case, that he might become a witness for the other defendants. This motion was overruled. The evidence, so far as this defendant was concerned, went to show that he took no part in making the purchases charged as the subjects of the several conspiracies set forth in the indictment ; but that he confined himself to the in-door business of the firm, to keep- ing their books of account, and to conducting their correspondence. Some of the letters, relating to consignments of goods under the cir- cumstances indicated in the fifth exception, namely, where bills of lading were sent forward before the goods described therein had been purchased, (such letters purporting to be invoices of the goods, with directions for their sale,) were admitted to be in the handwriting of this defendant, But there was no other proof that he had any knowledge, at the time of making such invoices, that the goods were not then purchased, than the circumstance of his having written such letters ; nor was he in any way connected by proof with the bills of lading, or with the drafts so drawn and sent forward. There was no evidence that Fondey had any knowledge of the intentions of his partners, to make purchases of the persons named in the indictment, or of any intention whatsoever of theirs not to pay 272 LEADING CRIMINAL CASES. Indictment — Pleading— Conspiracy. for what they should so buy, or of any thing that passed between them and the sellers, at the time of the several purchases. 9th. The attorney for the Commonwealth, in closing the case for the prosecution, did not contend that the defendants had made any false representations, or practised any artifices or deceptive contriv- ances, for the purpose of inducing the several sellers to part with their goods, or that the defendants had obtained the goods by means of any such pretences, artifices, or contrivances. But the general ground, on which he placed the case, was, that the defendants con- tinued to purchase after they knew they had become insolvent, with- out disclosing the fact of their insolvency to the sellers, and without any reasonable expectation of being able to pay for the goods in the regular and ordinary course of their business. It was not suggested that the defendants had withheld any property from their assignees, or that they had made any fraudulent assignments or conveyances. The defendants contended, that, in order to constitute the offence of conspiracy, there must be a combination or agreement to do some- thing criminal in itself, or unlawful as against positive law, or to use means of accomplishment, against which common prudence could not guard ; that, to make out the offence of a conspiracy to cheat, such as is charged in this indictment, there must be evidence of an unlawful combination or agreement to cheat, by means of some false pretences, which, in themselves, would be the subject of indictment, or by the use of some fraud or deceit, which would affect the public, or by some fraudulent and deceitful means, against which common prudence could not guard ; that, in the absence of proof of false pre- tences, or facts of intentional deception, at the time of the purchases by the defendants, the indictment could not be sustained, unless the jury should be satisfied that the defendants obtained the goods with an intention not to pay for them ; and that such intention was not inferrible from the mere fact that the defendants were deeply insol- vent at the time when the several purchases were made. The presiding judge, in his charge to the jury, after a general ex- planation of the law relative to the offence of conspiracy, stated to them, that, upon the evidence in the case, there were three general inquiries, which it was their duty to make, and upon each of which they must be satisfied affirmatively, in order to a conviction of the defendants, namely : first, whether the purchases of goods by the defendants were unlawful acts which might be the subject of a con- spiracy ; second, whether they were made in pursuance of a previous agreement, confederacy, or combination ; and, third, whether they were made with an intent to cheat and defraud. The jury were then instructed specifically as to each of the inquiries thus desig- nated. LEADING CRIMINAL CASES. 273 Indictment — Pleading — Conspiracy. The defendants excepted generally to the entire instructions; but as certain portions only were controverted in the argument, or con- sidered by the court, those alone are material to be stated. In reference to the first inquiry, the jury were instructed, " that if they should be of opinion, upon the evidence, that the defendants made any of the purchases of goods mentioned in the indictment, at a time when they had full knowledge of their insolvency, without any reasonable expectation of being able to pay for such goods in and by means of the fair and ordinary course of their business, and without making known their situation to the sellers, every such pur- chase was a wrongful act, which might be the subject of a con- spiracy." In reference to the third inquiry, the jury were instructed, in gen- eral, " to consider every fact and circumstance which had been given in evidence, indicative of actual intention, and tending to throw any light on the question of the intent of the parties ; and that though the conduct of the defendants, if, at the time of effecting the several purchases, they resorted to the use of any artifice, trick, deception, or misrepresentation, with a view to influence the sellers, would be so entirely inconsistent with good faith, as to render it difficult to admit any such hypothesis ; yet, if the purchases in question were not effected or accompanied by any such positive deception as above mentioned, but were only attended by a silent concealment of facts and circumstances, in reference to which no inquiries were made, it would be the duty of the jury to take into consideration, with a view to determine upon the intention, every fact and every circumstance, indicative of an honest intention, or of a reasonable expectation, on the part of the defendants, to pay the debts thus contracted." It being intimated by the court, that the preliminary question pre- sented by the bill of exceptions, namely, as to the sufficiency of the indictment, could not regularly be entertained in the form of an ex- ception to the refusal of the Municipal Court to quash it, but that the question would more properly arise on a motion in arrest of judg- ment, the defendants thereupon filed such a motion, averring the - insufficiency of the indictment in general terms. See Commonwealth v. Peck, 1 Met. 448 ; The State v. Burlingame, 15 Maine, 104 ; Rex v. Pollman, 2 Camp. 230. G. Bemis, for the defendants. I. As to the motion in arrest of judgment. The second form of count, which is the only one containing any statement of means, alleges that the defendants conspired to get pos- session of the goods of the prosecutor, under " color and pretence of buying the same." But this allegation does not charge any unlaw- 274 LEADING CEIMINAL CASES. Indictment — Pleading — Conspiracy. ful act, and, therefore, if the conspiracy is not otherwise sufficiently set out, the defect cannot be cured by the averment that it has been carried into execution. Commonwealth v. Hunt, 4 Met. 111. In the second and third forms, in which the execution of the conspiracy is stated, the conspiracy is merged in the completed offence. Common- wealth v. Kingsbury, 5 Mass. 106 ; Lambert v. The People, 9 Cow. 578. And these counts are insufficient as charges of cheating. 3 Chit. C. L. 999 ; Commonwealth v. Warren, 6 Mass. 72 ; Lambert v. The People, before cited. The validity of the indictment must consequently depend upon the sufficiency of the first form, in which the defendants are charged with a conspiracy to cheat and defraud a person named therein of his moneys, goods, and chattels. It is contended, on behalf of the defendants, that this form is insufficient, because it does not set out any object criminal in itself, or illegal as being against positive law, or a fraud affecting the public, against which common prudence could not guard. 1. This form of indictment is insufficient on the weight of author- ity. In this Commonwealth, it does not appear that the precise form here used has ever been judicially passed upon ; but the law as set- tled in Commonwealth v. Hunt, 4 Met. Ill, and the reasoning of the court, with reference to the third count in that case, go far towards establishing the doctrine contended for. In England, also, the law upon this point is not settled. It is possible that the form in ques- tion might be considered as sufficient in the Queen's Bench, under the recent decision of The Queen v. Kenrick, 5 Ad. & El. (N. S.) 49; though the law of that case, except as to the form of the indictment, is decisive of the present for the defendants. The case of The Queen v. Kenrick may perhaps be considered as affirming that of The King v. Gill, 2 Barn. & Aid. 204 ; but both these cases are distinguishable from the present, inasmuch as they contained a charge of conspiracy to cheat by false pretences, eo nomine. See Commonwealth v. Hunt, 4 Met. 126. It may well be doubted, however, whether the case of The Queen v. Kenrick will ultimately be sustained. The more re- cent decision of The Queen v. King, 7 Ad. & El. (N. S.) 782, in the Exchequer Chamber, throws a shade over it ; and prior to the case of The Queen v. Kenrick, the current of authorities was the other way. The Kings. Biers, 1 Ad. & El. 327; The Queen v. Peck, 9 Ad. & El. 686 ; Rex v. Fowle, 4 Car. & P. 592 ; Rex v. Richardson, 1 M. &Rob.'402; The King v. Turner, 13 East, 228; Rex v.Pywell,! Stark, R. 402; The Queen v. Parker, 3 Ad. & El. (N. S.) 292, and Mr Greaves's note thereon, in 2 Russ. on C. 695, note (n) ; 2 Russ. onC. (5 Am. ed.) 690 ; 1 Stark. C. P. (1st ed.) 144, 145, 147. In other States, the weight of authority is against the sufficiency LEADING- CRIMINAL CASES. ' 275 Indictment — Pleading — Conspiracy. of the indictment. The cases of Lambert v. The People, 9 Cowen, 578, in New York, The State v. Rickey, 4 Hals. 293, in Newtfersey, and Hartmann v. Commonwealth, 5 Barr, 60, in Pennsylvania, all leading cases, and the last mentioned a very recent one, are strong authorities for the defendants on this point. In New York, the case of Lambert v. The People was followed by a statute, establishing the principle now contended for; and similar legislation has also taken place in Alabama, Missouri, and Arkansas. In the case of The State v. Buchanan, 5 Har. & Johns. 317, a leading case in Maryland, which may be cited for the prosecution, as to the law of conspiracy, rather than for the form of the indictment, the indictment either sets out the means by which the conspiracy was to be effected, or alleges the offence of embezzlement as its object. 2. This form of indictment does not set out the offence charged with sufficient certainty and precision, and is therefore defective on principle. The whole charge is contained in the words " conspire to cheat and defraud one P. S. S. of his goods." If so brief a state- ment of an offence be sufficient, it must be in consequence of the technical and well-settled import of the terms used. The word conspire is not technical, like the word murdered or ravished, but signifies nothing more than that the defendants together did or agreed to do the act imputed to them. 1 Deac. C. L. 279 ; 3 Chit. C. L. 1143. The use of the word defrauding, in actions of trover and bills in equity, shows that its signification is not exclusively criminal. See Adams v. Paige, 7 Pick. 542. In many cases, it is only equivalent to depriving. See The State v. Rickey, 4 Hals. 293 ; Rex v. Rich- ardson, 1 M. & Rob. 402 ; The Queen v. Peck, 9 Ad. & El. 686. In Commonwealth v. Hunt, 4 Met. Ill, the indictment might as prop- erly have charged the defendants with conspiring to defraud the pros- ecutor of his profits, as to diminish them. Nor has the word cheat any definitely settled signification. In the law of slander, next to the criminal law, the sense of words is most carefully canvassed. 1 Stark, on S. (Wend, ed.) 69. But it is not actionable to accuse one of cheating. Savile v. Jardine, 2 H. Black. 531 ; Stevenson v. Hayden, 2 Mass. 506 ; Chase v. Whitlock, 3 Hill, 139. So, in the criminal law, there are many cheats which are not pun- ishable, but only the groundwork of a civil liability. 1 Russ. on C. (5th Am. ed.) 280, 282, 285; Commonwealth v. Hearsey, 1 Mass. 137; Commonwealth v. Call, 21 Pick. 515, 520; Commonwealth- v. Warren, 6 Mass. 72 ; Commonwealth v. Drew, 19 Pick. 179, 185 ; Commonwealth v. Manley, 12 Pick. 173 ; Adams v. Paige, 7 Pick. 542 ;• Richards v. Farnham, 13 Pick. 451. 276 LEADING CKISfflSTAL CASES. Indictment — Pleading — Conspiracy. It being thus manifest, that to cheat and defraud one of his prop- erty d§es not necessarily import a criminal offence ; — are those terms adequate to describe an offence "fully and plainly, substan- tially and formally," as required by the Bill of Rights? This provision is held not to change the rules of the common law. Commonwealth v. Davis, 11 Pick. 432 ; Commonwealth v. Phillips, 16 Pick. 211. But it is a most important declaration of the qualities which the common law requires in an indictment. See Rex v. Home, Cowp. 672, 682. When, then, an indictment charges a conspiracy to cheat the pros- ecutor of his goods, what are the defendants to understand is the nature of the accusation against them? It may import that they undertook to cheat, by agreeing to buy without intending to pay any part of the price ; or by agreeing to buy, and then to become insol- vent, and pay merely a dividend; or by agreeing to get possession of the goods, and then maliciously to destroy them ; or by agreeing to get possession of them for some lawful purpose, as, for instance, as common carriers, and then to refuse to redeliver them. Which, of all these and a variety of other supposable charges, are the defend- ants to be prepared to meet? Which, of all the varied forms of cheating, from merely diminishing one's profits up to the most culpa- ble knavery, can they be reasonably sure is the accusation intended by the indictment ? If, instead of an indictment, the charge were made the subject of a civil action, would not much greater particu- larity be required ? It is true, that the action for a conspiracy sup- poses an actual loss or injury to have taken place; but would a declaration be sufficient, which merely set forth the agreement to injure, and the actual injury, without stating the manner in which the injury was to be and was in fact effected ? If it be said that the criminal offence of conspiracy consists in the agreement, then the agreement must be known to the prosecutor ; and, if known, why should it not be set out with the same particu- larity as in a civil action ? If what was agreed to be done has been done, as in the present case, there can be no pretence of an inability to set out the agreement fully. See Mr. Greaves's remarks in note (n) 2 Russ. on C. 694, and The King. v. Meld, 6 East, 417. There are cases in which, if a part only of the agreement be set out, a presumption of a criminal conspiracy will arise ; but, if the whole be stated, such presumption will be removed. The cases, be- fore cited, of The Queen v. Peck, Rex v. Richardson, and Common- wealth v. Manley, are of this description. Thus, in the case of Rex v Richardson, in which the charge was of a conspiracy to defraud the prosecutor "of the fruits of a verdict," it was held, that the latter words did away the presumption of crime, which might otherwise have arisen from the general statement of a conspiracy to defraud. READING CRIMINAL. CASES. 277 Indictment — Pleading — Conspiracy. In such cases is it not asuppressio veri, on the part of the prosecutor, (who, of course, knows the whole agreement, and that if set out it would constitute no offence,) to state only so much of it as will raise a presumption of crime ? If, in the present case, the conspiracy were to cheat and defraud P. S. S., by getting possession of his goods, " without paying for them," ought not the indictment, in fairness, to have contained the latter words, which would have shown that no offence had been committed ? It cannot be the theory of the law, nor is it consistent with the Bill of Rights, thus to expose a citizen to trial, as for a crime, on a charge, which, if fully stated, would not constitute an offence. Admitting the offence to consist in the intent, or rather in the agreement, to do an unlawful act, there is no offence, to which, on principle, the constitutional provision above mentioned should be more strictly applied ; for this, it is believed, is the only offence known in our law, which does not require for its consummation the doing of some overt act. Even in the case of attempts made punishable by our statute (Rev. Sts. ch. 133, § 12,) as well as attempts at com- mon law (Regina v. Meredith, 8 Carr. & P. 589,) there must be some act done towards the commission of the offence attempted. On these grounds, it is contended that this form of indictment, — so far as an indictment ought to inform the defendants therein of the nature of the charge against them, — is defective, and ought not to be sustained ; but, if the form be correct, the facts do not show that the offence of conspiracy has been committed; inasmuch as false pretences, or some other technical offence of cheating, must be proved, even if not necessary to be averred. The Queen v. Kenrick, 5 Ad. & El. (N. S.) 49 ; Rex v. Hamilton, 7 Carr. & P. 448. II. As to the exceptions. 1. The letters which were read in evidence, purporting to be ad- dressed to the defendants by their correspondents, were improperly admitted for two reasons; first, they were not identified by the mes- senger as among the papers of the defendants of which he obtained possession, nor were they otherwise connected with the defendants ( Commonwealth v. Kinison, 4 Mass. 646) ; and, second, if they had been properly identified, they were not admissible as evidence of the facts stated in them. Rex v. Plumer, Russ. & Ry. 264. The ground, upon which the letters of correspondents, addressed to a party and found in his possession, are admitted as evidence against him, is an implied admission of, or acquiescence in, the statements they con- , tain ; but the mere possession of unanswered letters is not, of itself, such an acquiescence or admission. See Fairlie v. Denton, 3 Carr. & P. 103 ; Phillips on Ev. (4th Am. ed.') Cow. & H. notes, 156, 195 ; 1 Greenl. on Ev. § 198. Nor did they become admissible by the sub- 24 278 LEADING CKIMINAL CASE§. * , Indictment —Pleading — Conspiracy. sequent reading of the letters of the defendants to their correspon- dents ; the latter not being shown to "be in reply to the former, and the statements of the former not being recognized in the latter. M Cully v. Barr, 17 S. & R. 445. 2. The evidence as to the value of the defendants' assets was in- competent, first, because it was not the best evidence, being the mere opinion of the witness, where positive knowledge might have been obtained either from the debtors of the estate or the assignees them- selves ; and, secondly, because the other party to the instrument was not called or sworn. Rider v. Ocean Ins. Co. 20 Pick. 259, 262 ; Webber v. Eastern R. R. Co. 2 Met. 147, 149, 150. 3. The inquiry, as to the defendants' credit and standing, was ob- jectionable, not only as asking the opinion of the witness himself, but the opinions of others not under oath. 4. The fourth exception relates to the evidence of intent inferrible from the doing of other similar acts, or the existence of other similar transactions, contemporaneously with the acts or transactions com- plained of as offences. This is objectionable, in the way in which it was put to the jury, because it authorized them to infer, from the fif- teen purchases collectively, what they probably could not infer in each separate instance; namely, an intent to defraud another prose- cutor than the one named in the count under consideration. Com- monwealth v. Harley, 7 Met. 506. 5. The evidence objected to under this head, which referred to proceedings more than a month previous to the transactions com- plained of, was too long prior in point of time to have any bearing upon the case. 6. The sixth exception presents the question, whether a party, hav- ing closed his case, shall be permitted to supply deficiencies in his own proof, by cross-examining the witnesses on the other side. 7. In order to prove the handwriting of a paper, by a comparison of it with other writings, the latter must be genuine originals ; and, for this purpose, copies produced by a press, or by a machine, how- ever exact they may be, cannot be regarded as originals. Nbdin v. Murray, 3 Camp. 228. See also Moody v. Rowell, 17 Pick. 490, 495 ; 1 Phillips, Ev. 446 ; 1 Greenl. Ev. § 581 ; Phillips on Ev. (4th Am. ed.) Cow. & H. notes, 1202. 8. The eighth exception was taken to the refusal of the Municipal Court to put the case of Townsend Fondey to the jury, upon the evidence for the prosecution. This was the right of the defendants, and not merely discretionary with the court, if, as is contended, there was no evidence against Fondey. 9. The general question, arising on the last exception, is, whether it is unlawful for an insolvent person, knowing the state of his affairs, LEADING CRIMINAL CASES. 279 Indictment — Pleading — Conspiracy. to continue his business afterwards so far as to make purchases of goods on credit. It is contended, first, that there is nothing in the insolvent law which makes such continuance in business criminal, or even wrongful ; and, second, that it is not unlawful, much less crim- inal, to contract debts, without a reasonable expectation of being able to pay them, in the fair and ordinary course of business. Jones v. Howland, 8 Met. 377. S. D. Parker, for the Commonwealth, I. As to the exceptions. 1. The letters of the defendants, being found by the messenger among their papers, and taken possession of by him, according to the provisions of the first and sixth sections of the insolvent act, as papers relating to their estate, came from the proper custody, and must be presumed to be genuine and authentic, in the absence of proof to the contrary; and they were proper evidence, to the extent and in the manner they were used, as stated in the bill of exceptions. New England Mar. Ins. Co. v. Z>' Wolf, 8 JPick. 56, 62 ; The United States v. Libby, 1 Woodbury & Minot, 221, 225, 226. 2. The witness, called to testify to the value of the assets, stood in the position of an expert ; and the subject, as to which he was inter- rogated, must, from the very nature of the case, be a matter of opin- ion. An appraisement is necessarily nothing but an opinion. The paper, produced by the witness was not put in as evidence, but sim- ply read by him as his opinion in answer to the inquiry relative to the value of the assets. If admissible as the opinion of the witness, does it become inadmissible when the witness- adds, that it is also the opinion of his associate ? 3. The credit and standing of the defendants were not mere mat- ters of opinion, but facts within the knowledge of witnesses ; and, if the defendants' standing were such that they could not have obtained goods on credit, this was a fact manifestly important and material to be shown, in reference to the character of the transactions in ques- tion. The inquiry objected to was therefore proper. 4. The authorities are abundant to show, that evidence of other acts and transactions, similar to those which are the subjects of in- vestigation, is admissible in proof of intent or guilty knowledge. Carey v. Hotailing, 1 Hill, 311, 316, 317 ; Hitchcock's case, 6 City Hall Recorder, 43 ; Gardner v. Preston, 2 Day, 205 ; The King v. Parsons, 1 Wm. Black. (2d ed.) 392, note (o) ; Rex v. Roberts, 1 Camp. 399. 5. The evidence objected to under this head of the exceptions was clearly admissible to show the intent. The King v. Ellis, 6 Bam. & Cres. 145 ; Regina v. Mansfield, Carr. & Marsh. 140 ; Rex v. Davis, 280 LEADING CEIMINAL CASES. Indictment — Pleading — Conspiracy. 6 Carr. & P. 177 ; The King v. Dunn, Moody, 146 ; and cases cited as to the 4th exception. 6. The proceeding, which is the ground of the sixth exception, is every day's practice. Rex v. Eroehl, 2 Stark. R. 343. 7. The letters introduced for the purpose of comparison were not copies, but originals. Simpson v. Thornton, 2 Mood. & R. 433. When a writing is made on stone, and impressions are taken there- from, in the process of lithography, every such impression is an orig- inal. If this objection is well founded, it applies only to the case of Fondey. 8. The motion, that Fondey's case should be separately put to the jury, on the ground that there was no evidence affecting him, was a matter strictly within the discretion of the Municipal Court, and can- not therefore be made the subject of an exception. 9. [This exception was considered by the attorney for the Com- monwealth in connection with the motion in arrest of judgment.] II. As to the motion in arrest of judgment. The three forms, adopted in this indictment, were taken from Da- vis's Precedents ; the first count being a literal copy of No. 134 ; the second of No. 124 ; and the third of No. 127, with this difference, that the precedent in Davis alleges that the defendants absconded, instead of alleging that they removed, or made preparations to re- move, the goods out of the Commonwealth. The doctrine of merger, insisted upon by the defendants, is not applicable. A misdemeanor may merge in a felony, but not in a misdemeanor. The People v. Mather, 4 Wend. 229, 265 ; The State v. Murray, 15 Maine, 100. In Commonwealth v. Kingsbury, 5 Mass. 106, cited for the defendants, the acts, which were the subject of the alleged conspiracy, when executed, became a felony. It was also held in that case, that a conspiracy to commit a misdemeanor, and the committing of the same, might be joined in orie indictment. In the present case, both the offence charged and the subject of it are merely misdemeanors. As to the certainty required in indictments for conspiracy, it is laid down by Savage, C. J., in Lambert v. The People, 9 Cow.<581, " that the same certainty is not required as in other cases ; " for which he refers to Rex v. Rispal, 3 Burr. 1320. It was argued, that, in order to constitute the offence of conspiracy, the purpose or object must be something criminal in itself. But this is not the rule. There are many cases, in which it would be an in- dictable conspiracy for two or more to agree to dp an act, which one person might execute with impunity. The King v. Kimberly, 1 Lev- inz, 62 ; The King v. Armstrong, 1 Ventris, 304 ; Rex v. Spragg, 2 Burr. 993; Collins v. Commonwealth. 3 S. &-, R. 220. the second LEADING CRIMINAL CASES. 281 Indictment — Pleading — Conspiracy. count ; Commonwealth v. Hunt, 4 Met. 111. The true rule, to be drawn from all the cases, seems rather to be, that whatever is wrong- fully injurious to the public, or to an individual, may be the subject of a conspiracy, whether it be criminally punishable or not. Rep. on the Pen. Code of Mass. Conspiracy, 6, n. (i). A good illustration occurs in the case of Anderson v. Commonwealth, 5 Randolph, 627, in which it was held, that a conspiracy to seduce a woman would be indictable, although seduction' itself would not be. The principle alluded to furnishes an answer, also, to the ninth head of the exceptions ; for, though it may not be criminally punish- able in an insolvent debtor, to make purchases of goods in the man- ner supposed by the instruction, to which exception was taken, yet it is impossible to deny, that such purchases would be wrongfully injurious to the sellers. The general question on this motion is, whether all the counts in the indictment are so defective, as to require that judgment should be arrested ; for, if any one of them is good, that may be the foun- dation of a valid judgment. The law of conspiracy was fully con- sidered, in England, by Lord Denman, in the recent case of The King- v. Seward, 1 Ad. & Ell. 706, and in this Commonwealth, by the present chief justice of this court, in Commonwealth v. Hunt, 4 Met. Ill: According to Lord Denman, a conspiracy must be either for an unlawful purpose, or to effect a lawful purpose by unlawful means. The general rule, stated in the last named case, is, that in an indictment for a conspiracy to compass or promote a criminal or unlawful purpose, such purpose must be set forth fully and clearly, and the means, by which it is proposed to be accomplished, need not be stated ; but, that in an indictment for a conspiracy to promote or compass a purpose not in itself criminal or unlawful, by the use of criminal or unlawful means, the means intended to be used must be set forth. Tried by the rule thus stated, all the counts in the indict- ment will be found sufficient, both in form and substance. 1. In the first and other corresponding counts, which allege that the defendants, with intent to injure and defraud one P. S. S., con- spired together to cheat and defraud him of his goods, &c, an un- lawful purpose is set out. This is indicated by the use of the words cheat and defraud. Earl of Bristol v. Wilsmore, 1 Barn. & C* 514, 521 ; Rex v. Jackson, 3 Camp. 370 ; Scholtz's case, 5 City Hall Re- corder, 112, ll4. The words injure and defraud, which are used to describe the intent, have a definite technical meaning, and are there- fore proper to be used in an indictment, to denote the wrongful and injurious character of the acts to which they are applied. See Rev. Sts. ch. 126, §§ 1 to 6 & 14 ; ch. 127, § 32. These terms, sufficiently 24* 282 LEADING CEIMINAL CASES. Indictment — Pleading — Conspiracy. indicating the unlawfulness of the purpose, it was not necessary to set out the means intended to be used. This form of indictment received the sanction of this court in Commonwealth v. Ward, 1 Mass. 473, which is the more in point, because the means therein stated, namely, false pretences, were not then criminal, and consequently, no criminal means were there set out. It is also supported by the following English cases and au- thorities : The King v. Gill, 2 Barn. & A. 204 ; The Queen v. Par- ker, 3 Ad. & Ell. (N. S.) 292, 298 ; The King- v. Parsons, 1 We Black. (2d. ed.) 392; The Queen v. Kenrick, 5 Ad. & Ell. (N. S.) 49, 60 ; The Queen v. King, 7 Ad. & Ell. (N. S.) 782, 792 ; The King v. Robinson, 1 Leach, 44 ; The King v. Airey, 2 East, 30 ; 3 Chitty, C. L. (4th Am. ed.) 1143, (referring to Ld. R. 1167, and 1 Salk. 174;) Archbold, C. P. 675; The Queen v. Best, 6 Mod. 185; 4 Steph. Comm. 266. The following American cases are to the same effect : The State v. Buchanan, 5 Har. & J. 517 ; Senator Steb- bins's argument in Lambert v. The People, 9 Cow. 578 ; Common- wealth v. Collins, 3 Serg. & R. 220, the third count ; The People v. Olcott, 2 Johns. Cases, 301, and 2 Day's Cases, 507, note ; Barthele- my v. The People, 2 Hill, 248 ; Eason v. Petway, 1 Dev. & Batt. 44, 47 ; The People v. Mather, 4 Wend. 264 ; Scholtz's case, 5 City Hall Recorder, 112, 114. In the case of The State v. Rickey, 4 Hals. 293, cited for the de- fendants, in which it was held, that it was not indictable to conspire to do an act not criminal, there was no allegation of a purpose to defraud. Of that case, the commissioners for revising the criminal law in this Commonwealth remark, that " it seems to clash with the common law, and the general current of jurisprudence, from the case of The King v. Journeymen Tailors, 8 Mod. 10, downward." Re- port, Conspiracy, 2, note (d). The commissioners also question the correctness of Lord Ellenborough's decisions in The King v. Turner, 13 East, 228, and Rex v. Pywell, 1 Stark. R. 402. See, also, with reference to the authority of those cases, Lambert v. The People, 9 Cow. 584 ; Roscoe, C. E. 372 ; Commonwealth v. Hunt, 4 Met. 131 ; and The Queen v. Kenrick, 5 Ad. & Ell. (N. S.) 49. It is said, that to cheat and defraud is not indictable, except under certain special circumstances ; and therefore, that the object of the conspiracy does not appear to be the doing of an unlawful act. The answer is, that the manner of the cheating proposed to be effected is not the test by which to determine whether it may or may not be the subject of a conspiracy; if wrongfully injurious, it is equally criminal as if it were indictable. 2. The second and similar counts set out both an unlawful pur- LEADING CRIMINAL CASES. 283 Indictment — Pleading — Conspiracy. pose", namely, to cheat and defraud, and the unlawful means by which it was to be effected, that is to say, the getting possession of the goods of the persons therein named, under color and pretence of buying them, or, in other words, by means of a pretended or void sale. A sale for cash is void, even though the goods are delivered, if the terms of sale are not complied with. Leven v. Smith, 1 De- nio, 571. 3. The third and fourth varieties are but slightly different from the precedent, No. 127, in Davis's Precedents. In the latter, the con- spirators are charged with agreeing to abscond out of the Common- wealth, after getting the goods into their possession. In the present case, the charge is of a purpose to remove the goods out of the Com- monwealth. Both are injurious and wrongful acts, which may be the subject of a conspiracy ; and these counts charge both an un- lawful object, and an agreement to effect it by unlawful means. A remark, equally, applicable to all the counts, is, that this is not an indictment for cheating, or subject to the technical rules appli- cable to indictments for cheating, but only for a conspiracy to cheat, to which a very different set of rules is to be applied. The counts may all be bad as an indictment for cheating, but perfectly good as an indictment for a conspiracy to cheat. R. Choate replied. Dewey, J. 1 An exception was taken to the refusal of the Muni- cipal Court to sustain a motion to quash the indictment, in this case, on the ground that it sets forth no sufficient charge of any criminal offence. The substantial objections which were intended to be raised by this exception, come more properly before us upon the motion in arrest of judgment, which was filed in this court at the hearing, and will therefore be considered under that branch of the case. In answer, however, to the exception to the decision of the Municipal Court upon this point, it is sufficient to say, that a motion to quash is addressed to the sound discretion of the court in which an indictment is pending, and if refused, is not a proper subject of exception. Such a motion should not be allowed to prevail in a doubtful case, but only when the insufficiency of an indictment is so palpable, as clearly to satisfy the presiding judge, that a verdict thereon would not authorize a judgment against the defendant. Waiving the further consideration, at present, of the sufficiency of the indictment, I will proceed to notice the various exceptions to the admission of evidence, and to the instructions of the presiding i Metoalf, J., did not sit in this case. 284 LEADING CRIMINAL CASES. Indictment — Pleading — Conspiracy. judge, as to the facts necessary to be established, in order to author- ize a verdict against the defendants. I. The first exception relates to the admission of certain letters, purporting to be addressed to the defendants by certain of their cor- respondents, without any proof being offered of the genuineness of the handwriting of those correspondents. It is left somewhat un- certain, as to the extent of the evidence on the part of the Common- wealth, to show that these letters came from the possession of the defendants. If it be true, as seems to be stated in the bill of excep- tions, that the only evidence upon this point was that of the mes- senger, " who could not identify any of the papers produced by the assignee, as those which he had taken possession of as messenger," then, clearly, there was an important link wanting to complete the chain of evidence. The testimony of the assignee was requisite to establish the fact, that these letters came from the possession of the defendants. It should have been shown, by the testimony of the assignee, that the letters and papers offered in evidence were re- ceived by him from the messenger ; and his testimony to such fact, together with that of the messenger, that all the papers delivered by him to the assignee were obtained from the possession of the defend- ants, might well . authorize the jury to find, that the papers and let- ters produced came from the custody of the defendants ; although the messenger might not be able to identify the particular papers thus offered in evidence. The letters, however, if properly identified, would not, of them- selves, authorize any inference against the defendants ; they were only the acts and declarations of others ; and, unless adopted or sanctioned by the defendants, by some reply or statement, or by some act done in pursuance of their suggestions, they ought not to prejudice the defendants. Letters addressed to an individual, and received by him, are not to have the same effect as verbal communi- cations. Silence, in the latter case, may authorize the inference of an assent to the statement made, but not equally so in the case of a letter received but never answered, or acted upon. So far as these letters might have been shown, by other proof, to have been acted upon or sanctioned by the defendants, so far they would have been competent evidence. II. The second exception relates to the admission of a certain paper, containing an estimate or appraisal of the assets of the de- fendants made by two persons ; one of whom was called as a wit- ness to show the value of the assets, and was allowed to read to the jury a schedule of the same, on a valuation thereof, made and signed by himself and his associate. This paper was an estimate made by both the persons who acted as appraisers, by him who was not LEADING CRIMINAL CASES. 285 Indictment — Pleading — Conspiracy. called, as well as by the witness. It was thus a valuation made by the former, not under oath, and should not have been admitted and read to the jury, without first calling him to testify as to its accu- racy. III. The third exception relates to an inquiry put by the attorney for the Commonwealth, to a witness, called by fiim as to whether the standing and credit of the defendants were such that they could have bought goods on a credit. This question was objected to, but was permitted by the court. We think the ruling was correct, and the evidence admissible. IV. Evidence of other purchases of goods than those charged in the indictment, made by the defendants from other persons during the month of March, 1844, under similar circumstances with the transactions charged in the indictment, was admissible for the pur- pose of showing the nature of the business of the defendants, and the extent of the purchases made by them, and also as bearing upon the bona fide character of the dealings of the defendants with the particular individuals alleged to be defrauded. This species of evidence would not be admissible for the purpose of showing that the defendants had also committed other like of- fences ; but simply as an indication of their intention in making the purchases set out in the indictment. It is analogous to the proof of the scienter in indictments for passing counterfeit money, by show- ing that the defendant passed other counterfeit money to other per- sons about the same time. Such evidence is always open to the objection, that it requires the-defendant to explain other transactions than those charged in the indictment ; but, t when offered for the limited purpose above stated, — that of showing a criminal intent in the doing of the act charged in the indictment, — it has always been held admissible. In Rex v. Roberts, 1 Camp. 399, such evidence was admitted as competent. V. The evidence offered for the prosecution, tending to show that the defendants, during the month of February, 1844, in several in- stances, obtained bills of lading and forwarded them to their cor- respondents in New York and elsewhere, accompanied by drafts thereon, before the goods described in such bills of lading were actu- ally purchased, was admissible for the reason given under the head of the fourth exception, namely, as having a bearing upon the ques- tion of the defendants' intention, in the transactions set forth in the indictment. VI. We perceive no objection to the ruling of the court, permit- ting the attorney for the Commonwealth, after closing the case for the prosecution, so far as the introduction of witnesses by him was proposed, to cross-examine witnesses introduced by the defendants, 286 LEADING CRIMINAL CASES. Indictment — Pleading — Conspiracy. for the purpose of proving more fully the signatures to certain pa- pers, which had been before, as was contended, insufficiently proved. The introduction of testimony, even out of the usual order of time, must, to some extent, be discretionary with the presiding judge ; and, therefore, a departure from the ordinary practice, (which, how- ever, we do not perceive in the present case,) would not furnish a ground for exception. VII. The copies of letters, in the letter-book of the defendants, were not admissible as competent standards of comparison by which to prove the genuineness of signatures to papers produced on the part of the prosecution. Impressions of writings, produced by means of a press, or duplicate copies made by a machine, are not admissible for this purpose. Nothing but original signatures can be used as standards of comparison, by which to prove other signatures to be genuine. Nor can a paper, proposed to be used as a standard, be proved to be an original, and a genuine signature, merely by the opinion of a witness that it is so ; such opinion being derived solely from his general knowledge of the handwriting of the person whose signature it purported to be. The evidence, resulting from a com- parison of a disputed signature with other proved signatures, is not regarded as evidence of the most satisfactory character, and by some most respectable judicial tribunals is entirely rejected. In this Com- monwealth it is competent evidence ; but the handwriting used as a standard must first be established by clear and undoubted proof ; that is, either by direct evidence of the signature, or by some equivalent evidence. Moody v. Rowell, 17 Pick. 490 ; Richardson v. Newcomb, 21 Pick. 315, 317. ' VIII. The request of the defendants' counsel, that the case of Townsend Fondey should be first put to the jury, with instructions " that there was no evidence against him, and no evidence to war- rant his conviction," with a view to obtain his acquittal, at such a stage in the trial of the indictment, that he might be used as a wit- ness for the other defendants, was, in our opinion, properly refused. The submitting of the distinct case of one of several defendants to the jury, during the progress of a trial, is a discretionary power vested in the presiding judge, peculiarly within his province, and to be exercised only upon his views of the evidence. If there is any evidence against such defendant, there is no legal right in the other defendants to insist upon a finding separately as to him, with a view of using- him, if acquitted, as a witness for them ; although the pre- siding judge may strongly incline to the opinion, that the weight of evidence is altogether in his favor. In the present case, there was evidence bearing upon Townsend" Fondey, and tending to connect him with the transactions of the other defendants, which well au- LEADING CEIMINAL CASES. 287 Indictment — Pleading — Conspiracy. thorized the presiding judge to refuse the motion to put his case to the jury separately. IX. The next exception, being of a much more general character, and directly affecting the question, as to what acts may be the sub- ject of the criminal offence of conspiracy, necessarily requires a care- ful consideration of the great principle upon which this and similar cases are to be tried. It was not contended by the prosecuting officer, " that the defend- ants had made any false representations, or practised any artifices or deceptive contrivances, for the purpose of inducing the several sellers to part with their goods, or that they obtained the goods by means of any such pretences, artifices, or contrivances." The general ground taken for the prosecution was, that the alleged fraud and cheating of the individuals named in the indictment, were suffi- ciently established by showing, "that the defendants continued to purchase goods after they knew they had become insolvent, without disclosing the fact of their insolvency to the sellers, and without having any reasonable expectations of being able to pay for the goods so purchased, in the regular and ordinary course of their busi- ness." The counsel for the defendants, on the other hand, contended that, in the absence of all proof of false pretences, or of any artifices, or deceptive contrivances, the indictment could not be sustained, unless the jury, should be satisfied that the defendants obtained the goods with an intention not to pay for them, which intention was not in- ferable from the mere fact of their being deeply insolvent at the time they made the purchases. The jury were instructed, " that if they should be of opinion, upon the evidence, that the defendants made any of the purchases of goods alluded to in the indictment, at a time when they had full knowledge of their insolvency, without any reasonable expectation of being able to pay for those goods, in and by means of the fair and ordinary course of their business, and without making known their situation to the sellers, every such purchase was a wrongful act, which might be the subject of a conspiracy." The obtaining of goods on credit, by an insolvent person, without disclosing his insolvency, and without having any reasonable expec- tation of being able to pay for such goods, in the ordinary course of business, was held to be an unlawful or wrongful act, without proof of any false .pretences, or any acts of intentional deception, on the part of the purchasers. We apprehend that this instruction was too stringent upon the character of such purchases. The provisions of the insolvent laws, in reference to a debtor, who, knowing himself to be insolvent, 288 LEADING CKIMINAL CASES. Indictment — Pleading — -Conspiracy. makes payment in money, or gives preferences by way o£ convey- ances of his property, to particular creditors, do not make the acts thus prohibited crimes, or declare them to be unlawful, except as frauds upon the insolvent law itself; nor do they prescribe any other consequences of such acts, than a forfeiture of the right of the party to a discharge as an insolvent debtor. But if acts of the description stated are unlawful, as frauds upon the insolvent law, yet purchases made, and credits obtained, by one who knows himself to be in- solvent, are not within the prohibition. The duty of an insolvent person to abstain from making purchases on credit from those who are willing to give him credit, is no statute requisition ; nor is it any- where enjoined by the insolvent laws. It is, at most, only a moral obligation. Taking the strongest ground applicable to cases of this nature, the true doctrine cannot go further than this, that such pur- chases become unlawful when they are made on a credit asked by the buyer, without any expectation of ability to make the stipulated payment. Mere inability to pay one's previous debts, — mere mercantile ob- ligation not to continue to trade after one becomes insolvent, — the provision of the statute, that payments made by a party knowing himself to be insolvent, shall debar him from obtaining his dis- charge, — the further provision, that if such payment is made to a creditor, having like knowledge of the insolvency, it shall be invalid, and may be recovered back by the assignee for the benefit of all the creditors ; — all these considerations fail to furnish any authority for the doctrine that a purchase on credit, made by an insolvent person, under the circumstances previously stated, is an unlawful act, which, if accomplished in pursuance of a concert or combination between two or more persons, without the use of any unlawful means, would sustain an indictment for a conspiracy to cheat and defraud the seller. The presiding judge, at the trial, repudiated the idea that it is the duty of a person engaged in trade, to resort, at once, to proceedings under the insolvent laws, and to place his affairs in the hands of assignees, upon ascertaining that he is indebted to a larger amount than can be realized from his assets. But, at the same time, he held that the purchase of goods, on credit, by an insolvent person, after knowledge of his insolvency, and without disclosing that fact to the seller, — SU ch buyer having no reasonable expectation of being able to pay for the goods, in the regular and ordinary course of his busi- ness, — was an unlawful act. 1 1 The introductory remarks of the judge of the Municipal Court, to which allusion is , here made, were not deemed necessary to be reported, in order to an understanding of the case. LEADING CRIMINAL CASES. 289 Indictment — Pleading — Conspiracy. The-Jest here assumed is that of "reasonable expectation" of being able to pay for the goods purchased. This is too severe a test. It would be hardly safe to take as the standard of the crimi- nality or lawfulness of a commercial adventure, after it had proved unsuccessful, the result to which sober and discreet minds would have come, as to " the reasonable expectation " that could haye been entertained of a more favorable issue to the adventure. Men of a sanguine temperament, easily deluded by new and visionary schemes of commercial speculation, and influenced thereby to avail them- selves of that credit which the sellers of goods are so lavish and im- provident in extending, if, on failing to pay for purchases thus made, they should be strictly tried by this rule, would be found to have been engaged in unlawful acts, and to have been guilty of a viola- tion of duty to their creditors. The more proper rule would seem to be, that the purchase of goods by an -insolvent person, knowing himself to be such, without any expectation of paying for the goods, would be an unlawful act, which might be the subject of a conspiracy. The unlawfulness of the act consists in purchasing the goods of another, and appropria- ting them to the purchaser's own use, without expecting to pay for them. Nothing less than this will suffice, if the goods are purchased on a credit, and with no false pretences or deceptive contrivances. A very different case would have been presented, if the defendants had been charged with fraudulently obtaining possession of the goods, under pretence of paying cash for them, upon the delivery ; they knowing that they had no funds to pay with, and appropria- ting the goods to their own use, in fraud of the sellers. Such a case would show a deceptive contrivance or false pretence. The known inability to pay for the goods would render the act of the party a fraudulent and unlawful one. But when the sale and delivery are on a credit given to the party, although a short one, as for three or five days, the mere want of funds and known inability of the buyer to pay, at the time of the purchase, cannot have the like effect, as in the case of a purchase of goods upon a representation that the buyer will pay cash for them on delivery. In the former case, the buyer may honestly and. confidently expect to receive funds, in due season, to meet his engagements ; but not so in the latter. The court are of opinion, that the instructions to the jury, upon this point, were erroneous ; and, that for this and the other causes already suggested, the verdict must be set aside, and a new trial granted. The defendants have also filed a motion in arrest of judgment, which presents the general question, whether this indictment would be sufficient to authorize a judgment against the defendants, if the 25 290 LEADING CKIMINAL CASES. Indictment — Pleading — Conspiracy. verdict were allowed to stand. As the case has been long nending and was fully argued upon this point, the court have also considered this question. The indictment contains forty-five counts, charging, in various forms, fifteen distinct offences. The first count, which is a form of the indictment used as to every distinct case, and which was con- sidered as the count that ought to be sustained, if either was good, has been the subject of our particular consideration. This count contains a general charge of conspiring to cheat and defraud an in- dividual of his goods, without alleging any actual cheating, or the use of any false pretences to effect the cheat. It sets forth, "that the defendants, devising and intending one Philo S. Shelton to in- jure and defraud, on the twenty-sixth day of March, A. D. 1844, at Boston aforesaid, in the county aforesaid, did unlawfully conspire, combine, confederate, and agree together, the said Shelton to injure, cheat, and defraud, of his property, goods, and chattels." Is this count, which sets forth no criminal object beyond what is imported by the words " cheat and defraud," and which omits to set forth any unlawful means, sufficient ? This presents a question, which, so far as we are aware, has not been directly settled by any adjudication of this court. The general principle applicable to criminal pleading requires that an indictment shall set forth, with technical particularity, every allegation necessary to constitute the offence charged ; and the constitution, adopting and sanctioning this principle, provides, "that no subject shall be held to answer for any crime or offence, until the same is fully, sub- stantially, and formally described to him." Looking at the indict- ment, in the present case, by the light of these familiar principles, we should naturally expect to find more of detail in the allegations which it contains. If an indictment for murder should allege merely that the accused had committed the crime of murder upon the per- son of one A. B., or, if an indictment for larceny should simply set forth, that the defendant had stolen from C. D., in neither case would the offence be set forth with the particularity and precision required by law. It must be conceded, however, that in indictments for conspiracy a different rule prevails, to some extent ; and the precise inquiry which we have now to make, is, to what extent ? The offence of conspiracy, in one respect, is doubtless peculiar. It may, unlike most offences, be committed without any overt act. A criminal purpose to do an unlawful act, or to do a lawful act by criminal means, mutually assented to or agreed upon by two or more persons, may, by such assent and agreement, ripen into crime, although no act be done in pursuance of it. LEADING CKIMINAL CASES. 291 Indictment — Pleading — Conspiracy. • The peculiar character of this offence has fully justified, in certain cases of conspiracy, a departure from the ordinary rules of criminal pleading. The means proposed to be used to effect a criminal pur- pose are not, in all cases, to be set out, and are not; in all cases, re- quired to be proved ; nor are they, in all cases, a necessary element of the crime of conspiracy. To a certain extent, the rules upon the subject are uncontroverted. If the alleged conspiracy be an unlaw- ful agreement of two or more persons to do a criminal act, which is a well known and recognized offence at common law, so that by reference to it as such, and describing it by the term by which it is familiarly known, the nature of the offence is clearly indicated, in such a case, a charge of conspiracy to commit the offence, describing it in general terms, will be proper. On the other hand, if the agreement or combination be to do an act, which is not unlawful in itself, by the use of unlawful means, those means must be particularly set forth, or the indictment will be bad. The question of doubt, and upon which there are conflicting authorities, is the case of a conspiracy to do a wrongful act, in vio- lation of the rights of another ; including under the denomination of wrongful acts, those which are unlawful, because they are in viola- tion of some statute provision, but which are not offences at com- mon law. The general form of allegation, adopted in the present indictment, has been comparatively rarely used in the class of cases just adverted to ; much the greater number of such cases containing a particular statement of the illegal means by which the object was to be effected. Our own reports furnish no authoritative decision of this matter. The cases of Commonwealth v. Ward, 1 Mass. 473; Com- monwealth v. Judd, 2 Mass. 329 ; Commonwealth v. Warren, 6 Mass. 72, which were cases of indictments for conspiracy, contain only dicta. These cases fully sustain the doctrine, that when a con- spiracy is plainly and technically alleged, overt acts done in pursu- ance of it need not be set out, or, if set out, need not be proved ; but that does not meet the question now presented. The English cases, on this point, were very few in number, until a recent period, when the question seems to have been, more frequently, the subject of consideration ; since which a much greater strictness has been required in indictments for conspiracy. The case of The Xing' v. Eccles, 3 Doug. 337, is frequently cited as an authority for a general charge of conspiracy, without any allegation of illegal means ; but that case, as was said by Lord Ellenborough, 13 East, 228, 231, was a conspiracy to restrain trade, and therefore a conspiracy affecting the public. The King v. Gill, 2 Barn. & Aid. 204, is a more direct authority, and may be considered as a case in point. In that case, 292 LEADING CRIMINAL CASES. Indictment — Pleading — Conspiracy. J however, it was alleged, in addition to the general charge of a coh- spiracy to cheat and defraud, that the defendants conspired to effect such cheat " by divers false pretences." But as these pretences were not set forth with particularity, the mere statement of them may not, perhaps, vary the, case. The more recent English cases, however, strongly indicate a disposition to hold to a much greater strictness in indictments for conspiracy, than had formerly been supposed to be required. The cases of The Queen v. Peck, 9 Ad. & Ell. 686 ; The Queen v. King, 7 Ad. & Ell. (N. S.) 782, and cases there cited, sus- tain this suggestion. This subject was fully considered in the Court of Errors of New York, in the case of Lambert v. The People, 9 Cowen, 578, which presented the same questions that arise in the present case. The Court of Errors, in that case, by the casting vote of the presiding officer, adjudged the indictment to be insufficient. The cases, re- lating to the point in question, and the various considerations bear- ing upon the whole subject, are fully and ably presented in the two opinions delivered by senator Spencer on the one side, and senator Stebbins on the other. Chancellor Jones concurred in the opinion of the former, declaring the indictment to be insufficient. The case came up by appeal from the Supreme Court of New York, that court having sustained the indictment. The authority of this case is, of course, to be received with some qualification. It led, at an early day, to legislative enactments materially modifying the crime of conspiracy. See Rev. Sts. of New York, II. 691. It had been supposed, that the court of Pennsylvania, in the case of Commonwealth v. M'Kisson, 8 Serg. & R. 420, had sanctioned the form of indictment adopted in the present case ; but the very recent case of Hartmann v. Commonwealth, 5 Barr, 60, holds directly the contrary ; adopting the principle, that, in an indictment for a con- spiracy to o!o an act unlawful in itself, if the intended purpose be an offence at common law, it is sufficient to set out such purpose by its well known technical name ; but, if the object of the conspiracy be to do an act which is an offence merely by statute, the intended pur- pose must, in such case, be set forth with so much detail as may be necessary to bring it within the description of the statute offence. The purpose of "cheating and defrauding," which is the case now before us, does not necessarily import the commission of any indicta- ble offence, either at common law, or by statute. It ma_y embrace only such civil frauds as are in violation of common honesty, and for which the party is amenable to justice, not by indictment but by a civil action. Hence the necessity of alleging the purpose of the con- spiracy more in detail, and with all the accompanying allegations to make it a statute offence, if the illegal means are not set forth. If LEADING CRIMINAL CASES. 293 Indictment — Pleading — Conspiracy. the purpose of the conspiracy be to cheat by false pretences, or by false tokens, or by any other means by which the act of cheating is made a crime punishable by statute, the means proposed to be used must be set out ; not because it is necessary, in an indictment for a conspiracy, to set forth the overt acts, but because it must appear, on the face of the indictment, in some form, that the object of the con- spiracy is a criminal one. We are not surprised at the disposition, so clearly indicated in the various decisions to which reference has been made, to discounte- nance any attempt to extend the practice of charging the offence of conspiracy in general terms. It was originally, so far as it applied to cases in which the purpose had been executed, a departure from that precision and particularity of detail which were held requisite in other cases, and which were deemed essential to a full statement of the offence set forth in an indictment. The general form of indict- ment, to the extent of alleging a conspiracy to commit a criminal act, which is known as an offence at common law, is fully sanc- tioned. Beyond this, the question has been ' a controverted one ; though, as we have seen, the tendency of the later cases has been to require the charge to be more fully set forth. In the propriety of these decisions, we are disposed to concur; and, called upon as we now are, to establish a precedent for future cases of this kind, we have come to the result, that the first count of this indictment is defective, in not setting forth such allegations as Would * show that the purposed " cheating and defrauding," — the alleged object of the conspiracy, — were criminal acts. There being no allegation of any illegal means to effect the proposed object, the object itself should have been shown to be a criminal one. The words " cheat and defraud " do not import any known com- mon-law offence. If punishable, at all, as a crime, it is only when the cheat is effected by false tokens, false pretences, or the like ; to make such an object of a conspiracy a criminal act, the combina- tion or agreement must be to cheat and defraud in some of the modes made criminal by statute ; and the indictment must contain allegations which show that the cheat and fraud agreed upon are embraced in such statute provisions, and that, if perpetrated, they would be punishable as a criminal offence. For these reasons, we think that the first count, and the other similar and corresponding counts, are insufficient. The only re- maining counts, that seemed to be relied upon by the government, are the second and others of the like form. It was urged, that the allegations contained in these counts, setting forth a conspiracy by the defendants to get into their hands and possession the goods of Philo S. Shelton, " under color and pretence of buying the same," 25* 294 LEADING CRIMINAL CASES. Indictment — Pleading — Conspiracy. might obviate the objection that was urged against the other counts. But these pretences are not set forth as false representations. There is no allegation that the defendants did not intend to buy, or that they did not -actually buy the goods which were delivered to them. The fraud complained of was the not paying for the goods, and the buying without the means of paying. The result, therefore, is, that judgment must be arrested. In Rex v. Gill, 2 Barnewall & Alderson, 204, (1818,) a leading English case, where the indictment charged that the defend- ants conspired, by divers false pretences, and subtle means and devices, to obtain and acquire for themselves from P. D. and G. D. divers large sums of money, of the said P. D. and G. D. and to cheat and de- fraud them thereof, it washolden, that the gist of the offence being the conspiracy, it was quite sufficient to state that fact, and its object, and not necessary to set out the specific pretences. This form of indict- ment " is the most general which has been held admissible." Per Lord Denman, C. J., in Regina v. Parker, 3 Queen's Bench Rep. 298. In the same case, Williams, J., said: It has been *al ways thought that in Rex v. Gill, the extreme of laxity was al- lowed. This case has been repeatedly examined and reviewed, and may now be regarded as the settled law in England. Regina v. King, 7 Queen's Bench Bep. 782, 795, (1844, 1845;) Regina v. Gom- pertz, 9 Queen's Bench Rep. 824, (1846.) In Regina v. Gompertz, as reported in 2 Cox, C. C. 145, 155, Lord Denman, C. J., said : " One count at least is good, on the authority of Rex v. Gill, which authority has never been overruled ; it is founded on ex- cellent reason given by Lord Tenterden and Mr. Justice Holroyd in that case ; and it has always been recognized, though not without regret, because that form of indict- ment may give too little information to the accused ; which was the observation made in Rex v. Biers, 1 Adolphus & Ellis, 827. But even from expressions there used, and much of what has been said in later cases, it appears plainly that the court has never doubted the correctness of the decision in the case of Rex v. Gill." .And in Sydserff v. Regina, 11 Queen's Bench Rep. 245, (1847,) Chief Justice Wilde, said: " The second count of this indictment in this case was objected to as being too general; and Rex v. Biers was relied on in support of the objection, and as overruling Rex v. Gill, from which we think the present case not distinguishable. But, upon referring to the judgment in Rex v. Biers, there ap- pears strong reason to doubt whether it did not go wholly on the one objection to the special counts. Neither Rex v. Gill, nor any other authority at all bearing upon the point, was referred to in that judg- ment ; and it appears distinctly from the recent ease of Regina v. Gompertz, ubi supra, that Rex v. Biers has never been considered by the Court of Queen's Bench as overruling Rex v. GUI." And see Re- gina v.Parker, 3 Queen's Bench Rep. 298; 2 Gale & Davison, 709 ; Peck v. Regina, 9 Adolphus & Ellis, 686 ; 1 Perry & Davi- son, 508 ; Regina v. Kenrick, 5 Queen's Bench Rep. 49 ; Davison & Merivale, 208 ; Rex v. Fowle, 4 Carrington & Payne, 592 ; Rex v. Richardson, 1 Moody & Robinson, 402 ; Regina v. Whilehouse, 6 Cox, C. C. 38 ; Regina v. Carlisle, 6 Cox, C. C. 366 ; 25 Eng. Law and Eq. R. 577 ; Regina v. Blake, 6 Queen's Bench Rep. 126. It has been recently decided, in Eng- land, that in an indictment for a conspiracy at common law, to effect objects prohibited by a statute, it is sufficient to follow the words of the statute. Thus, an indict- ment which charged a conspiracy to force workmen to depart from their employment, to raise the rate of wages, etc., by molest- ing, by threats, by intimidation, by ob- structing, etc., in violation of stat. 6 Geo. 4, ch. 129, was held sufficient, without setting out the means usual to molest, intimidate, or obstruct, or the threats held out. Re- gina v. Rowlands, 2 Denison, C. C. 364 ; LEADING CRIMINAL CASES. 205 Indictment — Pleading — Conspiracy. 5 Cox, C. C. 466 ; 9 Eng. Law and Eq. E. 287, (1851.) In Massachusetts, the principle adopted in Commonwealth v. Easiman has been very recently affirmed in Commonwealth v. Shedd, 7 Cushing, 514, (1851,) ; jjnd the weight of authority in America seems to be strongly in favor of the doctrine laid down in that case. Commonwealth v. Hunt, 4 Metcalf, 111; The State v. Roberts, 34 Maine, 320 ; The State v. Hewett, 31 Maine, 396 ; The State v. Ripley, 31 Maine, 386 ; Hartmann v. Commonwealth, 5 Barr, 60. See The State v. Burnham, 15 New Hampshire, 396 ; The State v. Rickey, 4 Halsted, 293 ; The State v. Buchanan, 5 Harris & Johnson, 317; The State v. Noyes, 25 Vermont, 415; The People v. Richards, 1 Manning; 216. In Commonwealth v. Shedd, supra, Dewey, J., said : The gist of the offence in a charge of conspiracy, being the act of conspiring together, and not the acts subsequently done in pursuance thereof, the conse- quence has been the introduction of cer- tain forms of charging this offence, doubt- ful in their character, and as to which there has not been an entire uniformity of decisions. Under the idea that the con- spiracy is alone the substantial crime charged, the practice had become some- what common to change the offence in the most general terms, as that of a conspiracy to the prejudice of the rights of others, overlooking the distinction, whether the object of the conspiracy was a criminal object, or the criminality consisted in ac- complishing an object, not in itself a crime, by criminal means. The recent decisions in this Common- wealth have, to a certain extent at least, settled what was before a matter of doubt, and, so far as the principles of those de- cisions are applicable to this case, they must govern it. 1. It is well settled that a general allegation, that two or more per- sons conspired to effect an object criminal in itself, as to commit a misdemeanor or a felony, is quite sufficient, although the in- dictment omits all charges of the particular means to be used. 2. It is equally well settled, that a general charge of a conspir- acy to effect an object not criminal, is not sufficient. The charge of such a conspir- acy is to be accompanied with the further statement of the means the conspirators concerted and agreed to use to effect the object; and those means must appear to be criminal. 3. The charge of a conspir- acy to cheat and defraud A., does not, ex vi termini, import a criminal object. Cheat- ing and defrauding are ambiguous terms, and as well applicable to civil contracts, as to injuries inflicted wholly by breach of criminal law. A man may cheat and de- fraud another in the sale of articles of merchandise, and yet the case be of civil wrong merely. It is therefore held, that it is not enough to charge generally the purpose of the conspiracy to be " to cheat and defraud ; " but the means must also be set forth, that it may be seen that it was a conspiracy to effect the proposed object by illegal means. This is directly settled in the cases of Commonwealth v. Eastman, 1 Cushing, 189, and Common- wealth v. Hunt, 4 Metcalf, 111,125. Hence it results, that the general charge of a con- spiracy to cheat and defraud Joel Church, which is the form of the present indict- ment, is insufficient, and that the indict- ment will not authorize the court to enter a judgment and sentence thereon, unless the defect is aided by the allegation of various overt acts of the parties alleged to have been done in pursuance of the con- spiracy. The view which the court have taken of this question, in the cases of Common- wealth v. Hunt and Commonwealth v. East- man, seems to require, that in cases of in- dictment for conspiracy the offence should be fully charged, independently of any overt acts alleged to have been done in pursuance of the conspiracy. Thus, in the case of Commonwealth v. Hunt', it is said by the court, that the indictment must " set out an offence complete within itself, Without the aid of any averment of illegal acts done in pursuance of such an agreement ; and that an illegal combina- tion, imperfectly and insufficiently set out in the indictment, will not be aided by averments of acts done in pursuance of it." The great difficulty in giving effect to the allegation of overt acts, in an indict- 296 LEADING CRIMINAL CASES. Indictment — Pleading — Written Instruments. ment for conspiracy, on a motion in arrest of judgment for insufficiency of the indict- ment, is this ; that overt acts are merely alleged by way of aggravation of the offence, and though alleged they need not be proved, and the alleged conspiracy might be found by the jury, without proof of the precise overt acts charged to have been done in pursuance of the conspiracy. The indictment in the present case, charg- ing only, in general terms, a conspiracy " to cheat and defraud one Joel Church of divers sums of money," and setting forth no illegal means, agreed upon or concerted by the parties to effect the same, as a part of such conspiracy, but merely setting forth overt acts of the parties, does not charge a conspiracy to do a criminal act, or to effect an object by any criminal means set forth upon the face of the in- dictment. It is usual to set out the overt acts ; that is to say, those acts which may have been done by any one or more of the conspira- tors, in order to effect the common pur- pose of the conspiracy. But this is not essentially necessary ; the conspiracy itself is the offence ; and whether any thing have been done in pursuance of it or not, is im- material. Commonwealth v. Eastman, 1 Cushing, 180; Commonwealth v. Shedd, 7 Cushing, 514 ; Regina v. Kenrick, 5 Queen's Bench Kep. 49 ; Davison & Meri- vale, 208 ; Rex v. Seward, 1 Adolphus & Ellis, 706 ; The State v. Ripley, 31 Maine, 386; March v. The People, 7 Barbour, 391 ; Clary v. The Commonwealth, 4 Barr, 210 ; Commonwealth v. M'Kisson, 8 Ser- geant & Rawle, 420. See Regina v. King, 7 Queen's Bench Kep. 782, 808, 809; Wright v. Regina, 14 Queen's Bench Kep. 148 ; Rex v. Spragg, 2 Bufrow, 993. An indictment for a conspiracy to obtain goods by false pretences, is insufficient, unless it state whose property the goods were. Regina v. Parker, 3 Queen's Bench Rep. 298 ; 2 Gale & Davison, 709. If the indictment be general, the court will order the prosecutor to furnish a bill of particu- lars of the charges to be relied upon, and that bill of particulars should give the same information to the defendants that would be given by a special count ; but the court will not compel him to state the specific acts to be proved, and the time and place at which they are alleged to have occurred. Rex v. Hamilton, 7 Carrington & Payne, 448 ; Regina v. Rycroft, 6 Cox, C. C. 76, (1852.) See Commonwealth v. Giles, 1 Gray, 466 ; Commonwealth v. Davis, 11 Pickering, 434 ; Commonwealth v. Snelling, 15 Pickering, 321 ; The State v. Chitty, 1 Bailey, 379. Commonwealth v. Elizue Weight. 1 March Term, 1848. Indictment — Pleading — Written Instruments. It is libellous, to publish of one, in his capacity of a juror, that he agreed with another juror, to stake the decision of the amount of damages, to be given in a cause then under their consideration, upon a game of draughts. It is a general rule of pleading in civil as well as in criminal cases, that, where a charge is brought against a defendant, arising out of the publication of a written instrument, the instrument itself must be set out in the writ or indictment. 1 1 Cushing, 46. LEADING OEIMINAL CASES. 297 Indictment — Pleading — Written Instruments. An indictment for a libel must not only contain, but it must also profess to set out, the very words of which the alleged libel is composed, that is to say, a transcript of the libellous publication, or of that part of it, which is the subject of the indictment. Marks of quotation, used in an indictment for a libel, to distinguish the libellous matter, are not sufficient to indicate that the words thus designated are the very words of the alleged libel. The .words, "according to the purport and effect, and in substance," in an indictment for a libel, do not import that the very words are set out. The word " tenor," imports an exact copy, and that it is set out in words and figures. An indictment for a libel alleged, that the defendant published, &c, an unlawful and mali- cious libel, according to the purport and effect and in substance, as follows : — the words between libel and as follows, cannot be rejected as surplusage. The defendant, who was the editor and one of the publishers of a daily newspaper, called The Daily Chronotype, published in the city of Boston, was indicted, tried, and convicted in the Municipal Court of the said city, for a libel on one Moses Clark, who, at the time of the publication complained of, was serving as a traverse juror in the Court of Common Pleas, then sitting in said city. The indictment was as follows : The jurors, &c, present, that Elizur Wright, of, &c, being a person regardless of the integrity, purity, and impartiality, which the citizens of this Commonwealth, when summoned to serve and serving as jurors in any of the courts of this Commonwealth for the adminis- tration of justice between party and party, ought to possess and sustain, and unlawfully and maliciously devising and intending to traduce, vilify, and bring -into contempt and detestation one Moses Clark, of Boston, aforesaid, who was on the day hereinafter men- tioned and for divers days previous had been a traverse juror duly summoned, sworn, and empanelled, at said Boston, to serve, and did on the day hereinafter next mentioned and on divers previous days duly attend and serve as such traverse juror in the Court of Common Pleas for the county of Suffolk, which was begun and holden at Boston on the first Tuesday in April, in the year of our Lord eighteen hundred and forty-seven, and was thence continued by adjournment from day to day, and holden on the day hereinafter next mentioned, in which said court, on the seventh day of May instant, the said Moses Clark, with eleven other jurors, composing the first traverse jury, after being sworn and empanelled according to law to try the case! did return a verdict in an action wherein one Michael Tubbs was plaintiff and one Francis Tukey was defendant, in favor of the said Tubbs, for the sum of three hundred and four dollars and fifty-eight cents damages, and also unlawfully and mali- ciously intending to insinuate and cause it to be believed, that the said Moses Clark, with another of the said traverse jurors, when considering of the said verdict, in the action aforesaid, instead of deciding therein according to their duty and to the law and the 298 LEADING CRIMINAL CASES. Indictment — Pleading — Written Instruments. evidence given to them, as the said traverse jurors were sworn and obliged to do by law, unlawfully, scandalously, and corruptly agreed to decide and did decide the amount of damages which they should render in their said verdict in the action aforesaid by a game of draughts, on the fourteenth day of May, in the year last aforesaid, — unlawfully, deliberately, and maliciously did compose, print, and publish in a certain newspaper published in Boston, called The Daily Chronotype, of and concerning the said Moses Clark, and of and concerning his discharge of his said duty as such juror sworn and empanelled as aforesaid, an unlawful and malicious libel, according to the purport and effect, and, in substance, among other things, as follows, that is to say, " It is said that his " (meaning the said Clark's) " marking against Tukey," (meaning the defendant in the said action) "from which he" (meaning the said Clark) " declared with emphasis he would not budge, was four hundred and ninety-nine dollars and ninety-nine cents, but he did budge from it for this reason" (meaning that the said Clark in considering of the said verdict had declared to the other jurors that he would not consent to a verdict for a less sum than four hundred and ninety-nine dollars and ninety-nine cents, but that he afterwards did consent to a less sum for the reason given in the next sentence of the said unlawful and malicious libel.) " He " (meaning the said Clark) " agreed afterwards with one other juryman " (meaning one other of said jurors sworn and empanelled in said case) "who had marked differently, to stake the decision upon a game of draughts with him" (meaning the said other jury- man) — (meaning that the said Clark unlawfully, scandalously, and corruptly agreed with another of the said traverse jurors sworn and empanelled as aforesaid, who differed from said Clark in opinion as to the proper amount of damages to be rendered in the said verdict, to stake the decision of the amount thereof upon a game of draughts.) " It was so staked and the game going against Clark he was obliged to concur with a lower marking" (meaning that the said Clark and another of the said traverse jurors, while considering of their verdict in the said action, played a game of draughts for the unlawful, scandalous, and corrupt purpose of deciding thereby what amount they should return in the said" action, and that the said Clark having lost the said game accordingly and unlawfully, scandalously and corruptly concurred in a verdict so decided.) " After the matter was arranged " (meaning after the aforesaid un- lawful, scandalous, and corrupt agreement charged as aforesaid) " in a trial which decided nothing, he" (meaning the said Clark) " marked down his one cent," (meaning that the said Clark voted for a verdict LEADING CRIMINAL CASES. 299 Indictment — Pleading — Written Instruments. of one cent damages in the said action) " where in the opinion of the community generally we believe the verdict ought to have been," (meaning that the said Clark originally voted for a verdict in the said action for a sum as damages greatly disproportionate to the justice and merits of the said action, and afterwards by an unlawful; scandalous, and corrupt agreement with another juror voted for one cent damages, and so trifled and sported with his duty as a juror and was guilty of a misdemeanor,) to the great injury, scandal, and dis- grace of the said Moses Clark, and against the peace, &c. The defendant moved in arrest of judgment : First, because the publication set forth in the indictment does not contain any libellous or indictable matter ; Second, because the publication does not contain any such libel as is charged in the indictment ; Third, because the indictment does not profess to set forth the very words or tenor of the alleged libel, but only the purport, effect, and substance thereof; and, Fourth, because the indictment is, in other respects, uncertain, informal, and insufficient in law. The presiding judge of the Municipal Court overruled this motion, and the defendant thereupon brought his case to this court by excep- tions. The case was argued, on the part of the defendant, by R. Hildreth, as to the first and second grounds of the motion in arrest, and by jH". E. Smith, as to the third. Hildreth. The party alleged to be libelled was at the time serving as a' juror, and the publication referred to him as such and not in his private character. The defendant was the publisher of a newspaper. There is nothing, therefore, in the case, which should induce the court to disregard technical objections. The prosecutor was quasi a public man ; the defendant was in the performance of a duty to the public ; and, in this country, it is not held to be an aggravation of a libellous publication, that the subject of it is a public character. Newspapers are no longer considered as nuisances ; but as a necessary article of life ; the daily bread of the public. Editors are often obliged to act upon slight evidence ; to get up their publications with great haste ; and they are surrounded by exciting causes. In the performance of their duty to the public, they are therefore entitled to some indul- gence ; and the law ought not to be so strict with reference to their publications, as in regard to those which have no public purpose in view. Prosecutions for libel against editors ought not to be encour- aged. 1. The publication complained of is not a libel. What is a libel ? 300 LEADING CEIMINAL CASES. Indictment — Pleading — Written Instruments. It is something published, which tends to blacken or defame a man's character, and to make him an object of hatred or contempt; and, in order to do this, the publication must contain a serious and substan- tial charge, and not merely one of a light and frivolous description. There is nothing in this publication, which can by any possibility be deemed libellous, unless it be that part of it, which charges the pros- ecutor with entering into an agreement with one of his fellows, to decide upon their verdict by a game of chance. But, by the agree- ment, as stated, the two jurors only undertook to settle the amount of damages, and not the verdict, by means of a game of chance. If it had been the latter, the statement might have been libellous. The jury had agreed upon a verdict for the plaintiff, and the only point then before them was as to the amount of damages. They had to decide, whether they should agree upon the amount, or disagree and be discharged from giving a verdict. 2. The publication was not what it is set forth to be in the indict- ment. The latter alleges, that the defendant charged the prosecutor with acting corruptly. But the charge itself does not import any thing of a corrupt nature. The conduct of the prosecutor, as stated in the publication might be improper or even unlawful, but it was not in any sense corrupt. If, then, the indictment allege a charge of corruption, and the publication, as stated, import no such charge, this is a repugnant and defective statement, and a sufficient ground for arresting the judgment. Smith. The third ground of exception is, that the indictment does not profess to set forth the very words or tenor of the alleged libel, but only its purport, effect, and substance. The indictment professes to set out only a part of the libel, namely, the substance of it. The terms employed, — " according to the purport and effect, and in substance, among other things, as follows, that is to say," — indicate only that the substance of the libel is set out. The terms " purport and effect" do not add to, or mean any thing more than, the word " substance," which is used in connection with them. Purport and effect import substance. 1 Chitty Crim. Law, 234 ; Archbold Crim. PI. 44 ; Wharton Am. Crim. Law, 83, 84. We contend, 1st, that the indict- ment should set out the libel in the very words of which it is alleged to be composed ; 2d, that it should profess to do so ; and, 3d, that it should set out the whole of those words. 1. The language of a libel must be set out in the indictment in the very words of the publication. Archbold Crim. PL 42; Wharton Am. Crim. Law, 83 ; Zenobio v. Axtell, 6 T. R. 63 (as to the mode of setting out a libel published in a foreign language) ; State v. Ste- vens, Wright (Ohio,) 73; State v. Gustons, 2 Southard, 744; Com- LEADING CEIMINAL CASES. 301 Indictment — Pleading — Written Instruments. monwealth v. Sweeney, 10 S. & R. 173 ; Wright v. Clements, 3 Barn. & Aid. 503 ; King v. Beer, 12 Mod. 219 ; State v. Parker, D. Chip- man, 298 ; Starkie on Slander, 323. 2. The very words must not only be set out, but the indictment must profess to set them out. 1 Starkie on Slander, 323 ; 1 Chitty C. L. 234 ; Wharton Am. Crim. Law, 83 ; 3 B. & A. 506. For this purpose, certain forms of expression, indicating that the words are so set out, must be used, as, for example, " of the tenor following," — "as follows," — "containing," — "in the words and figures follow- ing," &c. 3. These rules ought to be applied with more strictness, where the indictment does not profess to set out the whole of the publication, but only that part of it, which the prosecuting officer considers as libellous. He is doubtless at liberty to select and set out in the indictment those portions which he charges as libellous, without inserting the residue of the publication. But, if, in addition to this, he were allowed to set out only a part, that is to say, the substance, of those portions, the defendant would be under great difficulty in knowing what he was charged with. It is exceedingly clear, from the English authorities, and from cases decided in other States, that the indictment must profess to set out the alleged libellous matter, and must set it out in the very words. It was argued in the Municipal Court, that the words, " according to the purport and effect, and, in substance, among other things," might be rejected as surplusage, and then the indictment would profess to set out, and would in fact set out the very words. But this would be to make a new indictment. In Wright v. Clements, 3 Barn. & Aid. 503, Abbott, C. J., says, the words "in substance" give a differ- ent meaning. It seemed to be admitted, on the argument in the court below, that the indictment was bad, according to the English authorities. But it was said, that a practice had become established, in this Com- monwealth, which was sanctioned by the forms in Davis's Precedents, 125, 154, to state a libel according to the substance and effect. Mr. Davis refers to East, P. C. 975, as his authority ; but the rule there laid down, which was with reference to indictments for forgery, is directly the other way. In Commonwealth v. Houghton, 8 Mass. 107, Mr. Davis referred to his own practice as authority, but the court disregarded it; and in Moore v. Commonwealth, 6 Met. 243, the authority of one of his precedents was directly set aside. The case of the Commonwealth v. Parmenter, 5 Pick. 279, was also relied on as sanctioning the doctrine contended for on the other side. In this case, the court say, that, as the statement of the note alleged to be forged is according to the purport and effect, there is no 26 302 LEADING CRIMINAL CASES. Indictment, — Pleading — Written Instruments. material variance between promised and promise. Bat the point now presented was not raised, and that case therefore cannot be considered as decisive of the present. Another point, which was taken in the court below, was, that marks of quotation performed the office of a recital, — upon what authority was not stated ; but unless inverted commas perform a higher function than that of a recital, the argument is of no avail. It was argued, also, that the practice in this Commonwealth, which had prevailed for a long time, to describe written instruments, according to their purport and effect and in substance, ought not now to be questioned. This argument is answered by the remarks of Chipman, C. J., in the case of Slate v. Parker, 1 D. Chipman, 298, which was an indictment for uttering and giving in payment a coun- terfeit bank note; the. instrument was not set out in words and figures ; this being objected to, the form was admitted to be bad, according to the common law ; but it was attempted to be sustained on the ground " that indictments for forgery had been so drawn in Vermont, for more than thirty years, and that not one had been quashed, or held bad on demurrer for this exception ; " but the court, notwithstanding the long usage, which was admitted to have pre- vailed, though not universally, sustained the exception, and adjudged the indictment to be bad. In order to sustain this indictment, the court must decide one of two things, namely : either that it is not necessary, in an indictment for a libel, to set out the words, but only the substance; or that the terms purport and effect import that the very words are set out. If the latter, the court ought also, at the same time, to decide that the word tenor, in a recital, imports that the substance only is given ; otherwise, all distinctions will be confounded. In conclusion, we contend that it is clear, both upon reason and authority, that in an indictment for a libel the very words of the alleged libel must be set out, — that the indictment must profess to set them out, — and that certain technical words, which have acquired a settled meaning, must be used to signify whether the very words are set out, or whether their substance only is contained in the indictment. The contrary practice has not prevailed long enough, or been so extensive, as to have become the common law of this Commonwealth. S. D. Parker, (county attorney,) for the Commonwealth. It is not true, as was urged by one of the counsel for the defend- ant, that prosecutions for libel ought to be discouraged. The repu- tation of the citizens is as much entitled to the protection of the law as their persons. The punishing «f lihuls hv law is no doubt the LEADING CRIMINAL CASES. 303 — , Indictment — Pleading — Written Instruments. frequent cause of preventing bloodshed, which would be likely, here as well as elsewhere, to ensue, if the party injured by the publication of a libel had no means of redress by resorting to the law. It was lately argued by counsel in one of the inland counties, 1 that, in this Commonwealth, libels were not legally punishable ; and so argued the defendant, in the present case, (who had no counsel,) on his trial in the Municipal Court. The decision in the case alluded to has not yet been pronounced, but there can be no reasonable ground for doubting what it will be. Libels are undoubtedly punishable by law in this Commonwealth, and so are likely to remain ; at least, until the law is changed by the legislature. Editors are not licensed slanderers ; they, as well as others, are amenable to criminal prosecu- tion, if what they publish is injurious to the reputation of the citizens ; and it is to be hoped, that they will beccfne more sensible of the duties incumbent upon them, in this respect, than the counsel of the defendant seems to be. Instead of being less on their guard than others, as suggested by the counsel, editors should be much more so ; inasmuch as newspapers have a wider circulation than libellous pro- ductions in any other form. Haste is no justification ; and, if it were, there is no pretence for it in the present case ; the article complained of was the last of a series, and was the result of deliberation. In the argument for the defendant, the authority of the late Solici- tor General Davis, a most eminent lawyer, and an extremely able and successful prosecuting officer, was called in question. His Precedents, however, are exceedingly valuable ; they give the law as it existed when they were compiled; and, if the law has since changed, it is not his fault. The revision of the statutes introduced many changes in the criminal law, and some corresponding alterations became neces- sary in the forms of indictments. But two cases, however, have been referred to, in which Mr. Davis's forms have been found to be de- fective and overruled ; one of which is the case of Moore v. Common- wealth, 6 Met. 243, which was an indictment for adultery ; and the other that of the Commonwealth v. Houghton, 8 Mass. 107, which was an indictment against the defendant for having counterfeit bills in his possession, with intent to pass the same as genuine. The in- dictment, in the present case, was copied from No. 220. If the ob- jection taken is valid, this precedent must also be overruled. The ground, upon which the form of pleading objected to was adopted by Mr. Davis, is stated by him, in a note to his first precedent for forgery, (p. 125, n. 1,) in which the forged instrument is described as " of the 1 Allusion is here made to the case of 'the Commonwealth v. Chapman, (13 Met.) in Franklin, decided at Northampton, September term, 1848. 304 LEADING CRIMINAL CASES. , — * _ _ Indictment — Pleading — Written Instruments. purport and effect following ; " and, in a note appended to this pas- sage, he says : " This is the most proper allegation, as to the mode of describing the forged instrument. It is neither necessary nor advis- able to allege it in the 'tenor following.' See 2 East, P. C. 975, §§ 53, 54." The passage referred to in East, is as follows : " It is essentially necessary, to an indictment for forgery, that the instrument alleged to be forged should be set forth in words and figures; though there be no technical form of words for expressing that it is so set forth." In a note to the same words in another indictment, also for forgery, Mr. Davis remarks : " This mode of alleging the purport of the instrument is equally valid, and more advisable than to allege it in the ' tenor,' in which case, the slightest mistake is fatal." He probably thought that the minute verbal accuracy required in the proof, where the word " tenor " was used, wa|, not equally necessary where the statement was introduced by the words " purport and effect," or other equivalent words ; although it was necessary that the alleged forged instrument should be set forth in words and figures ; and that, on the authority of the doctrine stated by East, the risk attending the use of the word " tenor " might be avoided ; because, although the instrument must indeed be set out in words and figures, yet no technical words were necessary to convey the idea that it was so set forth. The first objection, urged by the defendant's counsel, is matter of substance ; the second relates to a supposed variance ; the th*ird is a question' of mere form. 1. It is first said, that the publication is not libellous. But it is clear, from the language, that it imports a charge of corruption in the prosecutor, in deciding the case before him, as a juror, upon or by rea- son of an unworthy motive ; and such a charge is clearly libellous, according to the most approved definitions of the offence of libel. That given by Mr. Hamilton, in his argument in the case of The People v. Croswell, 3 Johns. C. 354, is the briefest and most compre- hensive : " A libel is a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent towards govern- ment, magistrates, or individuals." In Clark v. Binney, 2 Pick. 113, Lincoln, J., in stating the opinion of the court, refers with strong ap- probation to the definition of libel given by Parsons, C. J., in the case of Commonwealth v. Clapp, 4 Mass. 168 : " It is a malicious publica- tion expressed either in printing or writing, or by signs, or 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." 2. The second objection is, that there is a variance between the publication, and the averments in the indictment ; that the publica- tion itself is innocent, though the averments makfi it criminal. Ones- LEADING CRIMINAL CASES. 305 Indictment — Pleading — Written Instruments. tions of variance are mixed questions of law and fact, to be decided' by the jury under the instruction of J;he court. The motion now is, not to set aside the verdict, but to arrest the judgment. The jury have found the facts as set out by means of the innuendoes ; and no question of variance can arise, but upon a motion for a new trial, on the ground of a misdirection. No question is made but upon the record alone. The answer to this second objection is, that the publi- cation is as libellous as the averments in the indictment make it ; but, if it were otherwise, the jury in the court below have already passed upon it, under the instruction of the court, and there is no motion to set aside the verdict, on the ground of misdirection. The publication must now be taken to be what the indictment says it is. 3. The third objection is one of mere form. The exception de- clares that the indictment is bad, because it does more than it pro- fesses to do ; and the judgment is asked to be arrested, because the indictment does not profess to do what it in fact does. 1 Is the indict- ment defective in point of form ? The motion is, that the judgment be arrested, because the indictment only professes to set out the sub- stance of the libel. The indictment does, in fact, set out the libel in the words of the publication. But this is not the exception. The defect complained of is, thatthe indictment does not profess to set out the words. It does, however, profess to set out the very words. That this is the case, is apparent, first, from the marks of quotation ; sec- ond, from the innuendoes; and, third, from the use of the word " purport." I. The marks of quotation show, that the publication is set out in the very words. All writings conform to certain rules ; and the words, figures, and marks, of which they are composed, are read by the eye. Punctuation is a part of language, if any thing which does not con- sist of words can be so, because it affects, and, indeed, sometimes fixes, the meaning of a sentence. Thus, for example, in this phrase, — the Lord is gracious never willing the destruction of men, — the sense is one way, if the comma is placed before, and quite different, if placed after, the word never. All the marks of punctuation thus 1 Before proceeding to consider this objection, Mr. Parker observed, that he had drawn all the indictments, amounting to several thousands in number, which had been returned by the grand juries for the county of Suffolk, since he had been appointed to office, with the single exception of the indictment in this case. The complaint, in this instance, was made to the grand jury, just at the close of their business for the term, and the indictment was prepared by the prosecutor's counsel, an eminent member of the bar in this county. Being drawn according to the precedent in Davis's Preced- ents, No. 220, p. 161, which had been before followed by him in very many important cases, without being objected to, he had adopted the indictment, and presented it to the grand jury as his own. 26* 306 LEADING CRIMINAL CASES. Indictment — Pleading — Written Instruments. •are or may be signs of ideas, and consequently are a part of the writ- ten language. Whatever indipates meaning conveys ideas to the mind. Marks of quotation, which are among the signs used in punc- tuation, and therefore indicative of ideas, denote that the words thus distinguished are quoted, that is, that the language professes, which is all that is wanted in this case, to be taken from some other source. They profess to mark language, which is transferred, ipsissimis verbis, from something else. Purport is that which is apparent to every eye, When it is said, that such is the purport of a thing, we understand that so it appears to every eye to be. In like manner, inverted commas indicate to every eye that what they contain is quoted. In the case of Wright v. Clements, 3 Barn. & Aid. 503, decided in 1820, and in that of Commonwealth v. Sweeny, 10 Serg. & R. 173, decided in 1823, which are the principal authorities relied on by the defend- ant, the word substance only is used. But, in the present, the word purport also is employed ; and there is a distinction between sub- stance and purport. .The latter addresses itself partly to the sight ; the former to the mind only. Purport denotes what is apparent to every eye. Marks of quotation are apparent to every eye, and indi- cate that the words so distinguished are taken from some other source. When, therefore, the statement of the libel is introduced by the word purport, and accompanied with marks of quotation, if it be true, as laid down by East, that no technical form of words is necessary to show that the instrument is set out in words and figures, — how can it be said, that this indictment does not profess to set out the very words of the libel ? II. The innuendoes, quoting the words of the publication, and then explaining them, show that the very words are given ; and that the language and not the substance is intended to be given. This is the very purpose of an innuendo ; the language being inserted, as it ex- ists, and then explained by the innuendo in its legal sense. III. The word purport shows, that the indictment undertakes to set out the very words. But it is said, that tenor is the necessary word ; and if that were only in the indictment, it would be sufficient. The earliest case, which is referred to as authority for this nicety in the use of language, is that of The King v. Beare, 1 Ld. Raym. 414 ; reported also in Carthew, 407 ; Holt, 422 ; and 3 Salkeld, 226. In that case, it was held, that tenor imports an exact copy, on the authority, in part, of the Register of Writs, 169, (a ;) in which, 169, (b,) the word tenor is used as synonymous with transcriptum. The position, taken on the part of the Commonwealth, is, that tenor and purport mean the same thing. There are three sources, from which the meaning of words and phrases, in legal terminology, may be ascertained, — lexi- cographers, text writers, and judicial decisions. LEADING CKIMINAL CASES. 307 Indictment — Pleading — Written Instruments. Among lexicographers, it will be sufficient to refer to two only. The word tenor is both Latin and English. In the former language, it is thus defined by Facciolati : " accent, — tone ; — among juriscon- sults, tenor legis is the meaning or purport of a law." Webster de- fines it as — "sense contained; purport; substance; general course or drift." From the lexicographers, therefore, it appears, that tenor and purport are equivalent terms. Among the text writers, Chitty defines purport to be " the substance of an instrument, as it appears to every eye." 1 Chitty, C. L. 214. If this be true, purport means the same as tenor. Arch bold says, that purport is that which appears on the face. Archbold, C. P. 20. The same definition is given in 2 East, P. C. 980. Can tenor mean any thing more ? From the text writers, therefore, as well as the lexi- cographers, it is clear, that purport is as effectual as tenor. . Judicial decisions may also be resorted to for the use and meaning of words. In Commonwealth v. Parmenter, 5 Pick. 279, which was an indictment for forgery of a promissory note, described as of " the pur- port and effect following," the court held, that, as the note was set out according to its .purport and effect, and not according to its tenor, the variance between promised and promise was not material. If the word tenor was not material in this case, it cannot be so in the case at bar. In Nye v. Olis, 8 Mass. 122, which was an action of slander, setting out the substance was held sufficient. In Common- wealth v. Carey, 2 Pick. 47, which was an indictment for uttering a counterfeit bank note, the instrument was described as of the " fol- lowing purport and effect ; " in Commonwealth v. Ward, 2 Mass. 397, the defendant was indicted for forging and uttering a promissory note, "purporting" to be the note of one J. E.; and in Commonwealth v. Boynton, 2 Mass. 77, the indictment was for uttering, &c, as true, &c, " in substance and of the purport and effect following ; " and, in none of these cases, was any objection made that the word tenor was not used, or that the statement of the instrument was insuffi- cient. In Downing v. Slate of Missouri, 4 Miss. 573, it was held, that, when an indictment undertakes to describe an instrument ac- cording to its purport, it must describe it in the words of which it is composed, that is, as it exists, and not merely according to its legal effect. In that case, which was an indictment for circulating a note contrary to law, the note was described as payable to the holder; the note offered in evidence was payable to bearer ; the court con- sidered this as a fatal variance, although it was admitted that the legal effect of the note, as it was set out, and as it was proved, was the same. Upon these grounds, it seems clear, that the word purport is suffi- cient, and that the word tenor is not necessary. Some duties must 308 LEADING CEIMINAL CASES. Indictment — Pleading — Written Instruments. be supposed to have been discharged by the court, before which the trial took place ; and if there had been a variance, it would have been seen and pointed out, and would have been fatal.. Something also may properly be presumed after a verdict. In 2 Dane's Abridg- ment, 587, it is said, that " there are two ways of ^describing a libel, one by the words, and the other by the sense." Hildrelh, in reply. The attorney for the Commonwealth has not taken any notice of the distinction between deciding a verdict, and deciding the amount of damages merely, by a game of chance or skill. What was said by the defendant does not charge corruption ; it imports an indecorum, perhaps, but nothing immoral. The second ground of exception is treated by the attorney as a variance ;.but it is not of that character ; it is an incongruity apparent on the record. As to the third ground of exception, the only case cited for the Commonwealth, in opposition to the numerous English and American cases relied upon by the defendant, is that of Down- ing v. State of Missouri, 4 Miss. 575 ; upon the authority of which, the court will hardly be inclined to set aside the former. Marks of quotation do not always indicate the very words. There are many passages in Bancroft's History, for example, in which, although dis- tinguished by marks of quotation, many of the words of the authors referred to are omitted. The only case cited from the reports of this court, which is at all applicable, is that of Commonwealth v. Par- menter, 5 Pick. 279. But in that case, the point now in issue was not made. Besides, there is a distinction between forgery and libel. In the latter, the offence consists in the very words ; which, conse- quently, the defendant is entitled to have set out to him. Forbes, J. The first objection is, that the indictment on which the defendant is convicted, does not contain any libellous, or indict- able matter. We think that this objection cannot be sustained. The matter contained in this publication is, clearly, libellous. The tendency of the publication was to degrade the prosecutor in the esteem and opinion of the world ; it impeached his integrity as a juror, and must, if the charge which it contains were true, make him an object of dis- trust and contempt among men. It was open to the defendant, in justification, to prove the truth of the charge, and that it was pub- lished with good motives, and for justifiable ends. But assuming, as we must do, at this stage of the case, that the publication was false and malicious, the record discloses, not merely an indictable offence, but an offence which the peace and well-being of society require to be repressed by exemplary punishment, LEADING CRIMINAL CASES. 309 Indictment — Pleading — Written Instruments. It was, however, contended in the argument for the defendant, that as the transaction set forth in the publication took place after the jury had agreed to return a verdict for the plaintiff, and as it related merely to the manner of assessing the damages, the publication ought not to be held to be libellous. The counsel for the defendant seemed to concede, that to charge a juror with having returned a ver- dict in the manner stated in the publication would be libellous, but he insisted upon a distinction between a charge which related to the finding of a verdict, and a charge which related to the manner of assessing the damages. We do not perceive that any such distinction can exist. There was but one issue, it is true, and perhaps the amount of damages is not technically a part of the issue, but an agreement to return a verdict for the plaintiff was not a discharge of their whole duty by the jury. Their duty was twofold ; they were first to find the issue, and then to assess the damages. The oath of a juror is designed to protect all those interests upon which it is com- petent for a jury to decide. The obligation of the oath is not di- visible ; it cannot be restricted to a particular subject of inquiry, in the manner supposed by this objection. Another objection to the indictment is, that it does not profess to set forth the very words or tenor of the alleged libel, butt only the purport, effect, and substance thereof. It is a general rule of pleading, in civil as well as in criminal cases, that when a charge is brought against a defendant arising out of the publication of a written instrument, the instrument itself must be set out in the writ or indictment. Wright v. Clements, 3 Barn. & Aid. 508. The court are of opinion that this rule is applicable to the present case, and that it is essential to the validity of the indictment, that it should set forth the words of the libel. The correctness and applicability of the rule were not denied on the part of the govern- ment, but it was insisted that in drawing this indictment, the rule had been substantially complied with. Upon this part of the case, two questions were discussed at the bar; first, whether it is neces- sary that the indictment should profess to set out the very words of the publication ; secondly, whether the word purport and the marks of quotation used in the indictment do import that the very words of the publication are set forth therein. The objection was said to be merely technical, and the court were invited to disregard it, especially as it was admitted that the words of the publication are recited correctly in this indictment. But what- ever the character of the rule may be, if well established, it is clearly the duty of the court to enforce it, and the defendant may as effect- ually avail himself of this, as a more meritorious defence. , The strictness required in criminal pleading has been occasionally 310 LEADING CRIMINAL CASES. Indictment — Pleading — Written Instruments. the subject of criticism and complaint; with this the court have nothing to do ; they are bound to administer the law as they find it. If this strictness has a tendency to impede or to thwart the course of justice in criminal proceedings, it is the province of the legislature, and not of the court, to amend the law. Upon a comparison of the authorities cited at the argument, the court are satisfied, that (with one or two exceptions having no rela- tion to the present case) the indictment must not only contain, but it must also profess to set out, a transcript of that part of the libel upon which the pleader relies. The authorities upon this point are some- what numerous ; the English and some of the American cases are referred to 1 Chitty C. L. 238, and note. The counsel for the government contended, that for a series of years the practice in this Commonwealth had been different, and that this practice is warranted by the authority of the late Solicitor-General Davis (Precedents of Indictments, 125, n.* 1,) and the case of Com- monwealth v. Parmenter, 5 Pick. 279. The note in Davis's Precedents does not appear to be supported by the authority to which he refers ; and the case of Commonwealth v. Parmenter was evidently decided without much consideration ; the correctness of the practice, it is true, seems to have been taken for granted, but the precise question here raised does not appear to have been suggested to the court, and the verdict in that case could not have been sustained for other reasons, which were assigned and re- lied upon by the court, in setting the verdict aside. Under these circumstances, we think that that case ought not to control the uniform current of the English decisions, supported by respectable American authorities. It was further contended, that it did sufficiently appear on the face of this indictment, that the words of the libel were set forth, inas- much as they were included between marks of quotation. We have not thought it material to ascertain whether or not this is so in the original indictment ; in the copy which has been furnished to the court, the marks of quotation include both the words of the innu- endoes and the words of the publication. In manuscripts as well as in printed books, it is undoubtedly a common practice to indicate the language borrowed from another, by the use of inverted commas ; but we are far from being certain, that these marks are generally un- derstood to import a perfect accuracy of quotation. A writer, anxious to escape the charge of plagiarism, would be likely to use these marks, although he appropriated nothing more than the sentiment, and sub- stantially the language of his author, without aiming at verbal accuracy. Besides, if these marks should be held sufficient to sustain an indictment, they must also be held sufficient to defeat it, when- LEADING CRIMINAL CASES. 311 Indictment — Pleading — Written Instruments. ever a slight mistake is made in the use of them ; and the accidental omission to include a single word of the libel in inverted commas, or the including within them of a word which was not in the libel, would be a fatal variance. It sometimes happens that the change of a single comma will give an entirely different meaning to a sentence : suppose a pleader to have occasion to set out a sentence of this description, would the misplacing or the omission of a comma, there- by leaving the meaning equivocal, be fatal to the indictment ? Had - we the power to do it, we should doubt the expediency of introducing a new rule in pleading, the probable effect of which would be, to throw additional embarrassments in the way of the pleader, and to increase the chance of escape, by means of merely clerical mistakes or tech- nical errors. The practice in arraignments is to read the- indictment to the pris- oner, and then to receive his plea. His knowledge of the charge against him is derived, ordinarily, from hearing the indictment read, and not from the inspection of it. But these indications of the meaning of the pleader are addressed to the eye : they are not per- ceptible by the ear ; and if the rule of construction contended for be correct, this well established practice is clearly wrong. It was also contended that the word " purport," used in the indict- ment, is equivalent to tenor, and imports a strict recital of the words of the libel. But in our view this is not, necessarily, the import of the term. The purport of a message or communication may be, and indeed generally is, stated, without the use of the identical words in which it is conceived. It is equivalent to substance, and such was its construction, by the court, in the case of the Commonwealth v. Parmenter, before cited. " The word tenor imports an exact copy, — that it is set forth in the words and figures, — whereas the word purport means only the substance or general import of the instrument." 2 Gabbett, Crim. Law, 201. The court are of opinion that this indictment is defective, and that judgment must be arrested. 312 LEADING CRIMINAL CASES. Indictment — Pleading — Written Instruments. Wright v. Clements. 1 April 25, 1820. Indictment — Pleading — Written Instruments. Declaration stated that the defendant published a libel, containing false and scandalous matters concerning the plaintiff, in substance as follows ; and then set out the libel with innuendoes : Held, that this was bad in arrest of judgment. Declaration stated that defendant, contriving &c. falsely, &c. did publish, and did cause and procure to be published, a certain false, scandalous, malicious, and defamatory libel, in the form of a statement, purporting to be written by one William Cobbett, of and concerning the plaintiff, containing, amongst other things, certain false, scandalous, malicious, defamatory, and libellous matters, of and concerning the said plaintiff, in substance, as follows ; that is to say : it then proceeded to set out the libel with innuendoes. The plaintiff having obtained a verdict for £500 damages, at the Middlesex sittings after last Michaelmas term, before Abbott, C. J., a rule was obtained in Hilary term for arresting the judgment, on the ground that the declaration was defective in stating the libel to be set out in substance only, and not according to the tenor. And now Scarlett, Denman, and Chitty showed cause. This rule was obtained on the authority of the case of Newton v. Stubbs, 2 Show. 435 ; 3 Mod. 71. There the declaration stated the words spoken to be to the effect following, and that was held to be bad in arrest of judgment. That case, however, does not apply to the present ; for taking the whole declaration together, it appears that the very words of the libel are set out, for there are innuendoes which would be unnecessary, if the declaration purported to set out only the substanfce or effect. It is sufficient, at all events, after verdict, if the declaration imports to set out the substantial matter of the libel. In the Queen v. Brake, 3 Salk. 225, Holt, C. J. says, " a libel may be described either by the sense or by the words, and therefore an information charging that the defendant made a writing containing such words, is good, and in such a case a nice exactness is not required because it is only a description of the sense and substance of the libel." That is an authority to show that it is sufficient to set out the 3 Barnewall and Alderson, 503. LEADING CRIMINAL CASES. 313 Indictment — Pleading — Written Instruments. substance of the libel. In The King v. Bear, 2 Salic. 417 ; 1 Lord Raym. 414, S. C, the declaration purported to set out the libel according to the tenor and effect following, and it was held, that although the words to the effect following, of themselves might be bad, yet that coupled with the word tenor, which imported a literal copy, they might be rejected. It is not, however, necessary to set out th£ literal copy of a libel, for the variance of a letter not altering the sense is immaterial, and that shows that it is sufficient to set out the substance of the libel. Admitting it, however, to be necessary to give in evidence the precise words of the libel, it is sufficient, after verdict, that it should be so stated on the record that there is no positive repugnancy between the mode of stating it, and the neces- sity of proving the precise words. Now there is nothing in the words "in substance as follows," which dispenses with the necessity of proof of the very, words of the libel ; for the innuendoes show that the plaintiff undertakes to prove the precise words. In the course of the argument, they cited Wood v. Brown, 1 Marsh. 522 ; 6 Taunt. 169, and Rex v. Leefe, 2 Campb. 138. Plait, contra. The words " in substance as follows," form a mate- rial part of the description of the libel, and cannot, therefore, be rejected. In actions for oral or written slander, it is not sufficient to set out the substance, but the very words must be stated upon the record, in order that the court may judge whether they be actionable or not ; if it were sufficient to set out the substance, the verdict of the jury would be conclusive upon that point, and the party would be deprived of his writ of error. In Zenobio v. Axtell, 6 T. R. 162, it was held to be insufficient, in ah action for a libel written in a foreign language, to set out the translation, which, if correct, how- ever, would have contained the substance of the libel. Cook v. Cox, 3 M. & S. 110, is precisely in point. The declaration there stated that the defendant accused the plaintiff of being in insolvent circum- stances, without setting out the words ; and the court, upon argument, held it to be bad, after verdict, upon principle and authority. This declaration cannot be supported. Abbott, C. J. I am of opinion, that in this case the objection must prevail, and that the judgment must be arrested. In actions for libel, the law requires the very words of the libel to be set out in the declaration, in order that the court may judge whether they con- stitute a ground of action ; and unless a plaintiff professes so to set them out, he does not comply with the rules of pleading. The ordinary mode of doing this, is to state, that defendant published, of and concerning the plaintiff, the libellous matters, to the tenor and 27 314 LEADING CRIMINAL CASES. Indictment — Pleading — Written Instruments. effect following. In thai case the word " tenor " governs the word " effect," and binds the party to set out the very words of the libel. There is another mode of doing it, by stating that defendant published the libellous matters following ; that is to say. And in this case, also, it is understood, that the very libel is set out. Here, however, more words have been introduced into the declaration, and the ques- tion is, whether the additional words have not varied the sense. The allegation .here, which has departed from the common form of the precedents, is, that the defendant published certain libellous matter, in substance as follows. Now the question is, whether the words " in substance," do not give a different meaning to the passage which follows. It seems to me that they do; for we are to understand these words in their ordinary sense. Suppose a person were to say, I have read a book concerning certain interesting historical questions, in which is contained a passage, in substance as follows ; no man would understand him to be about to repeat the very words of the passage, but only that he was about to give an abstract of it. So it is that I understand this declaration. It is true, that in pleading, many words have obtained an appropriate and technical sense, differ- ent from their popular meaning ; and if that had been the case with the words " in substance," it might have varied the present question : but it is not so, and those words must, therefore, be understood in their ordinary sense. I think, therefore, that the plaintiff in his declaration, not having professed to set forth the very words of the libel, but only their substance and effect, and, as it were, a sort of abstract of them, judgment must be arrested. It is of great impor- tance to follow the ancient form of precedents ; for if we depart from them in one instance, one deviation will naturally lead to another, and, by degrees, we shall lose that certainty which it is the great object of our system of law to preserve. Baylby, J. I am of the same opinion. A defendant, in a ease like this, has a right to expect that the plaintiff, in his declaration, will set out the very words used, or so much of them as he means to rely upon ; and the usual mode of doing this has been already stated by my Lord Chief Justice. The word "tenor" has, in law, a peculiar and technical sense, and the distinction between it and "substance" is directly pointed out by Buller, J., in Rex v. May, Dougl. 193, where he says, that " the word tenor has so strict and technical a meaning, as to make it necessary to recite verbatim ; but that by the expression, ' manner, and form following,' used in that case nothing more than a substantial recital was requisite." Here it is stated, that defendant published certain false and libellous matters, in substance, as follows ; the latter words, therefore, qualify those LEADING CRIMINAL CASES. 315 Indictment — Pleading — Written Instruments. which precede, and would let the party in at nisi prius to looser proof than would have been required in ease the declaration had stated the libel verbatim. Then, if the law requires the libel itself to be stated, how can a declaration be sufficient which states the libel in substance only. For two statements, which may differ in words, may agree in substance. Besides, if it be sufficient to set out a libel in substance, who is to decide whether it is proved, the judge or the jury ? And if they differ, the defendant might be deprived of the judgment of the court out of which the record comes. I think, there- fore, that if we were to hold this declaration sufficient, we should relax the strictness of proof at present required, and depart from the unvaried course of all the precedents. The judgment, therefore, must be arrested. Holroyd, J. I am of the same opinion. The old form of declar- ing was, to state the libel " according to the tenor and effect follow- ing," or, " according to the tenor following." And the law attaches a technical meaning to the word " tenor," as signifying either an exact copy or a statement of the libel verbatim. If the usual mode be not followed, but new words substituted for these expressions, the court must understand those new words according to their popular and ordinary sense. And considering this case in that way, the words " in substance," mean not a literal copy of the libel, but only the general import and effect of it. Now where a charge, either civil or criminal, is brought against a defendant, arising out of the publi- cation of a written instrument, as is the case in forgery or libel, the invariable rule is, that the instrument itself must be set out in the declaration or indictment; and the reason of that is, that the defend- ant may have an opportunity, if he pleases, of admitting all the facts charged, and of having the judgment of the court, whether the facts stated amount to a cause of action, or a crime. For it is clear that when it can be shown distinctly what the instrument is upon which the whole charge depends, that instrument must be shown to the court, in order that they may form their judgment. A defendant is not bound to put the question as a combined matter of law and fact to the jury, but has a right to put it as a mere question of law to the court. This mode of declaring would not only deprive him of that advantage, but also of his writ of error ; and it would make the verdict of a jury binding in cases where it ought not to be so. For if the jury find the verdict that the libel proved was in substance the same as the charge in the declaration, contrary to the opinion of the judge, that would be binding upon the parties, and the defendant could bring no writ of error, even although the whole might be a 316 LEADING CRIMINAL CASES. Indictment — Pleading — Written Instruments. question of law. I think, therefore, that this declaration is bad, and that the judgment must be arrested. Rule absolute. 1 It is a general rule of pleading, at com- mon law, in civil as well as in criminal eases, that written instruments, wherever they form a part of the gist of the offence charged, must be set out in the writ or in- dictment verbatim ; and where part only thereof is included in the offence, that part alone is necessary to be set out. 2 Gabbett, Crim. Law, 231. Thus, in the case of forgery, the instrument forged must be set out in the indictment in words and figures. Rex v. Lyon, 2 Leach, C. C. (4th ed.) 597; Rex v. Mason, 2 East, P. C. 975; 2 East, 180; The State v. Gustin, 2 Southard, 744 ; The State v. Twitty, 2 Hawks, 248 ; Stephens v. The Stale, Wright, 70. An indictment for a libel must set out the very words of which the alleged libel is composed, or of that part of it which is the subject of the indictment. Commonwealth v. Wright ; Commonwealth v. Sweney, 10 Sergeant & Rawle, 173; Zenobio v. Axtell, 6 Term R. 162, But the omission in an indict- ment for a libel of the date and signature at the end of the libel, not affecting the meaning, is not a variance. Common- wealth v. Harmon, 2 Gray, 289. In an in- dictment for a contempt in not executing a warrant, the nature and tenor of the war- rant must be shown ; Rex v. Burrough, 1 Ventris, 305 ; Comyns, Digest, Indictment G. 3 ; and in an indictment for sending a threatening letter, the letter must be set out. Rex v. Lloyd, 2 East, P. C. 1 1 23. It has been very recently held in Eng- land, upon a case reserved, where the de- fendant was indicted for fraudulently offer- ing a " flash note " in payment, under the pretence that it was a Bank of England note, that instrument need not be set out in an indictment, except where the court could derive assistance from seeing a copy of it on the record ; as where the case turns on the nature and character of the instrument, as distinguished from its quality of good or bad. Regina v. Coulson, 1 Tem- ple & Mew, C. C. 332, 335 ; 4 Cox, C. C. 227 ; 1 Denisbn, C. C. 592 ; 1 Eng. Law and Eq. Rep. 550, (1850). In this case, Chief Justice Wilde said : " It is unnecessary to set out the instrument in those cases where it cannot be of any use to the court, in or- der that they may arrive at the conclusion, whether it is or is not a valid document. Had it been stated in the indictment as a certain paper purporting to be a good and valid promissory note, and that it was not a good and valid promissory note, it might have been necessary to set it out, in order that the court might have seen whether it was or was not. In this case, the court could not have derived Bny assistance whatever from setting the paper out ; for all that appears upon the indictment, it might have been nothing but hieroglyph- ics. The indictment states that it was a certain paper produced by the prisoners which they falsely pretended was a good and valid promissory note, whereas it was not. Where the note is required to be set out, something has turned upon the nature of the note, rendering it necessary that the court should see it." The indictment must not only set out the tenor of the instrument, but it must profess so to do. The word " tenor" imports an exact copy ; that it is set fdrth in words and figures, — whereas the word " purport" means only the substance or general im- port of the instrument. Commonwealth v. Wright; The State v. Bonney, 34 Maine, 383 ; Rex v. Gilchrist, 2 Leach, C. C. (4th ed.) 660. When the instrument is set forth according to its tenor, no technical form of words is necessary for expressing that it is so set forth. Therefore, it was decided, that the words, " a certain receipt for money, as follows, that is to say," were as certain as if it had been said " according to the tenor following, or in the words and figures following, that is to say.' 7 Rex v. Powell, 1 Leach, C. C. (4th ed.) 77 ; 2 East, P. C. 976 ; 2 Blackstone, Rep. 787. 1 Best, J., was absent at thp. OM Railed LEADING CRIMINAL CASES. 317 Indictment — Pleading — Written Instruments. And if any other words are used which imply that a correct recital is intended, the instrument must be set out correctly, even though in the particular case the pleader need not have set out more than the substance of the instrument. And so strict was this rule conceived to be, that in one case it was made a question, whether • substituting the word " undertood " for "understood," was not a fatal variance. Rex v. Beach, Cowper, 229 ; 2 Leach, C. C. (4th ed.) 133. And in another case, the changing the words " value receiv- ed " into " value reiceved," in setting forth the instrument, was insisted on as a fatal objection to the indictment. Rex v. Hart, 1 Leach, C. C. (4th ed.) 145 ; 2 East, P. C. 977. These objections were how- ever overruled, upon the principle estab- lished in Regina v. Drake, namely, " that unless the omission or addition of a letter does so change the word as to make it an- other word, the variance is not material. Salkeld, 660 ; 1 Starkie, Crim. PI. (Lon- don ed. 1828,) 101 ; The United Stales v. Hinman, Baldwin, 292 ; The Stale v. Bean, 19 Vermont, 530; The State v. Weaver, 13 Iredell, 491. See Commonwealth v. Gil- lespie, 7 Sergeant & Kawle, 469, 479. And in another case, it was at first doubted whether the indictment was sufficiently proved, because it included the attestation of the witness, and the words " Mary Wal- lace, her mark," in the tenor of the note charged to have been forged ; the fact being, that when the prisoner subscribed the note, those parts of it were not then written. But Perrott, B., and Aston, J., whom the recorder consulted, being of opinion that the indictment was well proved, he directed the jury accordingly. For which decision this reason may be assigned, that the addition of the attesta- tion of the witness, and of the words " his or her mark," were, on this occasion, as they usually are, concomitant with that mode of executing the instrument, and a part of the same transaction. Rex v. Dunn, 2 East, P. C. 976 ; 1 Gabbett, Crim. Law, 371. On the other hand, if the matter of a written instrument be intro- duced by words which imply that the substance only, and not the very words 27* of the instrument, is set out; as, for in- stance,. by the words " in substance, as fol- lows," Wright v. Clements, 3 Barnewall & Alderson, 503 ; or, "to the effect follow- ing," Rex v. Bear, 3 Salkeld, 17; or, § in manner and form following," Rex v. May, 1 Douglass, 193 ; 1 Leach, C. C. (4th ed.) 227, or the like, if the instrument produced in evidence be in substance the same with that set out, it will be sufficient. 1 Starkie, Crim. PI. (London ed. 1828,) 255, 256 ; Arch- bold, Crim. PI. (London ed. 1853,) 176. In indictments for forgery, etc., the in- strument is sometimes described as the in- strument, and sometimes as purporting to be the instrument, the counterfeiting of which is prohibited by the statute on which the indictment is framed ; and the latter mode of describing it has been held to be equally good as the former. And it has been safd, that in strictness of language, there may be more propriety in so laying it, considering that the purpose of the in- dictment is to disaffirm the reality of the instrument. 2 East, P. C. 980 ; 1 Gabbett, Crim. Law, 371. Where the prisoner was indicted for forging and knowingly uttering a bill of exchange, described in the indict- ment to be " a certain bill of exchange, requiring certain persons, by the name and description of Messieurs Down, etc., twenty days after date, to pay to tlie order of R. Thompson, the sum of £315, value received," and signed by Henry Hutchin- son for T. G., and H. Hutchinson, etc. ; and the indictment then proceeded to set out the bill ; on proof that the signature, " Henry Hutchinson," was a forgery, it was objected, that the indictment averring it to have been signed by him, and not merely that it purported to have been signed by him, which was a substantial allegation, was disproved ; and the case being referred to the judges, they held the objection to be a good one. Rex v. Carter, 2 East, P. C. 985. Where the defendants were indicted and convicted of publishing, as a true will, a certain false, forged, and counterfeited paper writing, purporting to be the last will of Sir A. C, etc., the tenor of which was set out, it was objected that it should have been laid that they forged a certain will, and not a paper 318 LEADING CRIMINAL CASES. Indictment — Pleading — Written Instruments. wyiting, purporting, etc. ; the words of the statute being, " shall forge a will ; " but, after a variety of precedents were pro- duced, the judges held it to be good either way. Rex v. Birch and Martin, 1 Leach, C'. C. (4th ed.) 791 ; 2 East, P. C. 980 ; 2 Blackstone, Eep. 790. It is to be observed, that by the words, " purporting to be," is to be understood the apparent, and not the legal import of the instrument ; whereas the " tenor " of an instrument means the exact copy of it. And accordingly, where the instrument was laid in some counts of the indictment to be a paper writing purporting to be a, bank-note, it was held, that as it did not purport, on the face of it, to be a bank- note, not having been signed, the convic- tion could not be supported; though it was in evidence in this case, that the bank frequentlypaid bank-notes which are filled by their officers, and entered by them, though they happen not to be signed ; but the case was decided upon the principle, that though there need not be an exact resemblance to the thing supposed to be forged, yet the forged instrument must at least have the principal constituent parts of that which it is intended to rep- resent ; which was , wanting in this case. Rex v. Jones, Douglass, 300 ; 1 Leach, C. C. (4th ed.) 204. And where the bill was directed to John Ring, and the acceptance was by John King, the in- dictment having stated that the bill pur- ported to be directed to John King by the name of John King, and that the prisoner forged the acceptance in the name of John King, the judgment was ar- rested, because the bill did not, in fact, purport to be drawn on or directed to John King, as laid in the indictment; for the name and description of one person or thing could not purport to be another. Rex v. Reading, 1 Leach, C. C. (4th London ed.) 590; 2 East, P. C. 952. And so where a check or order for pay- ment of money was in fact directed to Messrs. Ransom, Moreland, and Hammers- ley, but in the indictment it was described as a paper writing, etc., purporting to be directed to George Lord Kinnaird, W. Moreland, and T. Hammersley, of, etc., bankers and partners by the name and description of Messrs. Ransom, Moreland, and Hammersley, upon a conference of the judges, the judgment was arrested, upon the principle above laid down, that the purport of an instrument meant the sub- stance of it, as it appeared on the face of the instrument to every eye which read it; and that this check or order could not purport to be directed to Lord Kinnaird, as his name did not appear on the face of it; the blunder having arisen from the circumstance that Lord Kinnaird and Messrs. Moreland and Hammersley had carried on the business of bankers under the firm of Messrs. Ransom, Moreland, and Hammersley. Rex v. Gilchrist, 2 Leach, C. C. (4th London ed.) 657 ; 2 East, P. C. 982 ; and see Rex v. Edsall, 2 East, P. C. 984 ; Rex v. Reeves, 2 Leach, C. C. (4th London ed.) 808 ; Rex v. Birch, 1 Leach, C. C. (4th London ed.) 79 ; 2 East, P. C. 980 ; 2 Blackstone, Rep. 790. But it is not always sufficient to set out the instrument according to its tenor. As where the indictment was framed upon 43 Geo. 3, ch. 139, for the forgery of a Prus- sian treasury note, and the instrument was set out on the record, and stated in the several counts' to be " a promissory note for the payment of money," " an undertak- ing for the payment of money,'' and " an order for the payment of money," and the prisoner being convicted, his counsel moved in arrest of judgment, on the ground that the false instrument was here set out only in a foreign language, and not translated or explained by other averments on the record ; and that the object of set- ting out the instrument in cases of libel and forgery was, that the court may judge whether it be what it is alleged to be, and whether it falls within the statute on which the prosecution is founded ; and eight of the ten judges, who. met to consider the case, were of opinion that the objection was good; and judgment was accordingly arrested. Rex v. Goldstein, Russell & Ryan, C. C. 473. And where the instrument al- ledged to be forged was described in the indictment as " a certain paper instrument partly printed and partly written," though the instrument wns «ot. fnvt\i in f nQ -.,,*«« LEADING CRIMINAL CASES. 319 Indictment — Pleading — "Written Instruments. words and figures of it, yet the judges, upon a case reserved, held the indictment to be bad, as it did not state what the in- strument was, in respect of which the for- gery was alleged to have been committed, nor how the party signing it had authority to sign it. Rex v. Wilcox, Russell & Ryan, C. C. 50. And where the tenor of the re- ceipt, as set out in the indictment, was, " 1825, reed. H. H.," and no averment or innuendo to explain what was meant by these initials, the indictment was held to be insufficient. Rex v. Barton, 1 Moody, C. C. 141. See Regina v. Inder, 1 Denison, C. C. 325 ; 2 Carrington & Kirwan, 635. Though it is in general sufficient to charge that the defendant forged such an instrument, naming it, or describing it as purporting to be such an instrument as is within the words and meaning of the stat- ute, etc., or setting forth the tenor of it, yet if the instrument does not purport on the face of it, and without reference to some other subject-matter, to be the thing prohibited to be forged, then such other subject-matter must be referred to by the indictment, and connected with the forgery by proper averments. 1 Gabbett, Crim. Law, 374 ; 2 East, P. C. 977. Thus, where the indictment charged the prisoner with forging a receipt to an assignment of a certain sum in a navy bill, and the tenor of the receipt merely consisted of the sig- nature of the party, it was held to be de- fective, on the ground that the mere sign- ing of such name, unless connected with the practice of the navy office, did not purport on the face of it to be a receipt, and that it ought to have been averred, that such navy bill, etc., together with such signature, did purport to be, and was, a receipt, etc., and that the prisoner felo- niously forged the same ; and that it was not sufficient, as here, to allege, generally, that the prisoner forged a receipt, which was a conclusion of law ; but facts must be stated to show the court that such conclusion was true. Rex v. Hunter, 2 Leach, C. C. (4th London ed.) 624; 2 East, P. C. 977. But the words* " Settled, Sam. Hughes," written at the foot of a bill of parcels, were held of themselves to import a receipt or acquittance, and that no averment was necessary; that the word " settled," meant a receipt or acquittance. Rex v. Martin, 1 Moody, C. C. 483 ; 7 Carrington & Payne, 549 ; overruling Rex v. Thompson, 2 Leach, C. C. (4th London ed.) 910; and see Rex v. Houseman, 8 Carrington & Payne, 180 ; Regina v. Vaughan, 8 Carrington & Payne, 180; Regina v. Boardman, 2 Moody & Robin- son, 147 ; Regina v. Rogers, 9 Carrington & Payne, 41. And where, on an indict- ment for forging a receipt, it appeared that the receipt was written at the foot of an account, and the indictment stated the re- ceipt thus : " 18th March, 1773, received the contents above by me, Stephen With- ers ; " without setting out the account at the foot of which it was written, it was held sufficient. Rex v. Testicle, 2 East, P. C. 925. When the indictment is founded upon a statute, it must, in general, according to the rule of pleading which is applicable to all offences, set forth the charge in the very words of the statute describing the offence ; equivalent words not being suffi- cient. 1 Gabbett, Crim. Law, 376. But in a very recent English case, if, has been held, that if the instrument be set out in hose verba, a misdescription of it in the indictment will be immaterial, at least if any of the terms used to describe it be applicable. In this case, Parke, B., said : " The question may be very differ- ent if the indictment sets out the instru- ment, from what it would be if it merely described it in the terms of the statute. In the former case, the matter which it is con- tended is descriptive, may be mere sur- plusage, for when the instrument is set out ' on the record, the court are enabled to determine its character, and so a descrip- tion is needless. Regina v. Williams, 2 Denison, C. C. 61 ; 1 Temple & Mew, C. C. 382 ; 4 Cox, C. C. 256 ; 2 Eng. Law. and Eq. R. 533, (1850). In this case the indictment charged the defendant with having forged " a certain warrant, order, and request, in the words and figures fol- lowing," etc. It was objected that the paper, being only a request, did not sup- port the indictment, which described it as a warrant, order, and request. But it was held, that there was no variance, as the 320 LEADING CRIMINAL CASES. Indictment — Pleading — Written Instruments. document being set out in full in the in- dictment, the description of its legal char- acter became immaterial. Parke, B., sug- gested that the correct course would have been, to have alleged the uttering of one ■warrant, one order, and one request. " The principle of this decision seems to be," says Denison, " that -where an instrument is described in an indictment by several des- ignations, and then set out according to its tenor, either with or without a videlicet, the court will treat as surplusage such of the designations as seem to be misdescrip- tions, and treat as material only such des- ignations as the tenor of the indictment shows to be really applicable. And where the indictment is so drawn as to enable the court to treat as material only the tenor of the indictment itself, all the descriptive averments may be treated as surplusage. The principal case seems reconcilable with Regina v. Newton, 2 Moody, C. C. 59, but to overrule Regina v. Williams, 2 Carring- ton & Kirwan, 51. See Bristow v. Wright, Douglass, 66; 1 Smith's Leading Cases, (American ed. 1852,) 629." In Regina v. Charretie, 3 Cox, C. C. 503, (1849,) Davi- son, amicus curiae, mentioned that Cress- well, J., in a subsequent case, had declined to act upon the authority of Regina v. Williams, 2 Carrington & Kirwan, 51. In an indictment for a libel, besides setting out the libellous passage of the publication, the indictment must also con- tain such averments and innuendoes as may be necessary to render it intelligible, and its application to the party libelled, evident. "When the statement of an ex- trinsic fact is necessary in order to render the libel intelligible, or to show its libel- lous quality, such extrinsic fact must be averred in the introductory part of the in- dictment ; but where it is necessary merely to explain a word by reference to some- thing which has preceded it, this is done by an innuendo. And an innuendo can explain only in cases where something has already appeared upon the record to found the explanation ; it cannot, of itself, change, add to, or enlarge the sense of expressions beyond their usual acceptation and mean- ing. , Commonwealth v. Snelling, 15 Pick- ering, 321, 335; The State v. Henderson, 1 Richardson, 179; Archbold, Crim. PI. (London ed. 1853,) 608. In indictments for passing, etc., counter- feit bank-bills, the number and check- letter, and the words and figures in the margin, and the ornamental parts, and the devices, mottoes, and vignettes, need not be set out. Commonwealth v. Taylor, 5 Cushing, 605 ; Commonwealth v. Searle, 2 Binney, 332 ; Commonwealth v. Bailey, 1 Massachusetts, 62 ; Commonwealth v. Stevens, 1 Massachusetts, 324 ; The State v. Carr, 5 New Hampshire, 367. It is sufficient to set out what constitutes the contract of the bill ; but that must be done truly and precisely. In Massachusetts, it has been very recently held, that it is a fatal variance, in an indictment for utter- ing and publishing as true, a forged bank- bill, ? to omit the name of the State in the up- per margin of the bill, if it is not repeated in the body thereof. Commonwealth v. Wilson, 2 Gray, 70, (1854). This was an indictment on Revised Statutes, ch. 127, § 2, charging the defendant with uttering and publishing as true, with intent to defraud, and know- ing the same to be altered, false, forged, and counterfeit, a certain altered, false, forged, and counterfeit promissory note, for the payment of money, of the tenor fol- lowing, that is to say : " President, Direc- tors and Co. of the Atlantic Bank, will pay ten dollars to bearer on demand. Port- land, Mar. 1, 1851. W. H. Stephenson, Cash. J. B. Osgood, Pres't." The note produced in evidence at the trial in the Court of Common Pleas, corresponded to the description in the indictment, but also had the words " State of Maine " in the upper margin. And the defendant con- tended that this was a variance from the note declared on. But the objection was overruled, and the defendant, being found guilty, alleged exceptions. In delivering the opinion of the court, Thomas, J., said : " There is a material variance between the instrument produced and that set forth in the indictment. The words ' State of Maine " are part of the date, and so part of the contract. They fix the situs of the bank, the place where the contract is made and to be performed, and the law by which it is to be inter- LEADING CEIMINAL CASES. 321 Indictment — Pleading — Written Instruments. preted. The case is clearly distinguish- able from those of Commonwealth v. Bai- ley, supra, and Commonwealth v. Stevens, supra. In the indictment in each of those cases, the entire contract was fully and precisely set out. The words omitted, the number of the bill, and the words and figures at the top or in the margin, were immaterial, because the contract was com- plete without them. The number was held to be affixed for the convenience of the bank only. The figures and words in the margin were but a repetition of those in the body of the note. In the case of Com- monwealth v. Taylor, supra, also the words and figures omitted formed no part of the contract. The words ' three dollars ' and ' Mass.' were immaterial, not because they were in the margin, but because they were also in the body of the note, and the con- tract was complete without them. Com- monwealth v. Taylor is decided upon the point settled in Commonwealth v. Bailey, and Commonwealth v. Stevens, that if all that was evidence of the contract was pre- cisely set out, it was sufficient. In the present case, the defect was in omitting that which made part of the evidence of the contract." In an indictment for forging a promis- sory note, the indorsement need not be set out, though it be forged. It is no part of the note. Commonwealth v. Ward, 2 Massachusetts, 397 ; Commonwealth v. Per- kins, 7 Grattan, 643 ; Simmons v. The State, 7 Hammond, 116. In Commonwealth v. Adams, 7 Metcalf, 50, Wilde, J., said : " This case cannot be distinguished from the case of Commonwealth v. Ward, 2 Massachusetts, 397 ; and we know of no authority or principle of law inconsistent with the decision in that case. The case of The State v. Handy, 20 Maine, 81, cited by the defendant's counsel, was not an indictment for the forgery of a negoti- able note, but of an order, directing an in- dorsement to be made on a bond. The order directed $48 to be indorsed, and on the back of the order, there was a direc- tion to add one dollar moje. And it was decided that this was an order for $49, and that it not being so alleged in the indict- ment, the variance between the allegation and the proof was fatal. That decision, therefore, has no bearing on the present case. In an indictment for forgery, it is neces- sary, undoubtedly, to set out truly the in- strument alleged to be forged. And so it was done in the present indictment, unless the indorsement of the payee is to be con- sidered as a part of the note ; and we are clearly of opinion that it is not. The in- dorsement is evidence of a transfer of the note to the defendant, which was a new contract. This was matter of evidence in support of the allegation that the note was uttered with an intention to defraud the persons named in the indictment ; but it is not necessary to set forth the manner in which a party was intended to be de- frauded." Where the instrument on which the in- dictment rests is in the defendant's posses- sion, or cannot be produced, and there is no laches on the part of the government, it is necessary to aver in the indictment such facts as are sufficient to excuse the nondescription of the instrument, and then to proceed, either by stating its substance, or by describing it as an instrument which cannot be set forth by reason of its loss, destruction, or detention, as the case may be. Commonwealth v. Houghton, 8 Mas- sachusetts, 107; The State v. Bonney,3i Maine, 223 ; The People v. Badgeley, 16 Wendell, 53 ; Hooper v. The State, 8 Humphreys, 93 ; The Stale v. Parker, 1 Daniel Chipman, 298 ; The State v. Potts, 4 Halsted, 26 ; The United Stales v: Brit- ton, 2 Mason, 464 ; The People v. Kingsley, 2 Cowen, 522. An indictment for printing an obscene paper, must set it out in the very words of which it is composed ; and the indictment must undertake or profess so to do, by the use of appropriate language, unless the publication is so obscene as to render it improper that it should appear on the re- cord ; and then the statement of the con- tents may be omitted altogether, and a description thereof substituted; but in this case, a reason for the omission must appear in the indictment, by proper aver- ments. If one of the original printed papers, in an indictment for printing an 322 LEADING CRIMINAL CASES. Indictment — Abatement — Respondeat Ouster — Final Judgment. obscene paper, is attached to the indict- ment, in place of inserting a copy, it is not a sufficient indication that the paper is set out in the very words. Commonwealth v. Tarbox, 1 Cushing, 66 ; Commonwealth v. Holmes, 1 7 Massachusetts, 336 ; The People v. Girardin, 1 Manning, 90. In Common- wealth v. Tarbox, Forbes, J., said : " In in- dictments for offences of this description, it is not always necessary that the contents of the publication should be inserted ; but, whenever it is necessary to do so, or when- ever the indictment undertakes to state the contents, whether necessary or not, the same rule prevails as in the case of libel, that is to say, the alleged obscene publica- tion must be set out in the very words of which it is composed, and the indictment must undertake or profess to do so, by the use of appropriate language. The ex- cepted cases occur, whenever a publica- tion of this character is so obscene as to render it improper that it should appear on the record ; and then the statement of the contents may be omitted altogether, and a description thereof substituted ; but, in this case, a reason for the omission must appear in the indictment, by proper aver- ments. The case of Commonwealth v. Holmes, 17 Massachusetts, 396, furnishes both an authority and a precedent for this form of pleading. In the present case, the indictment sets out the printed paper ac- cording to its purport and effect, and not in hmc verba, or according to its tenor, or by words importing an exact transcript. The mode of pleading adopted cannot be sustained, and the indictment being insuffi- cient, judgment is arrested." In an indictment for a larceny of written instruments, made the subject of larceny by statute, it is sufficient to give a brief legal description of the instrument. Thus, an indictment for larceny, alleging that the defendant stole " one bank-note of the value of ten dollars, of the property of one C. D.," is sufficient without a more particular description of the note. Com- monwealth v. Richards, 1 Massachusetts, 337; 2 East, P. C. 602, 777. So an in- dictment for selling lottery tickets need not set out the tickets sold. The People v. Taylor, 3 Denio, 99. In this case Bran- son, C. J., said : " In the cases to which we have been referred where it is neces- sary to set out the tenor of the instrument, as in indictments for forgery and counter- feiting, for libels and threatening letters, the writing constitutes the gist of the of- fence. But it is not so where the defen- dant is charged with the sale of a lottery ticket. That is more like larceny of a written instrument, where the indictment need not set forth either the tenor or pur- port of the writing. A general descrip- tion is sufficient. And besides, a ticket need not be in the form of a written con- tract or engagement. It may be any sign, symbol or memorandum of the holder's interest in the lottery." H. Rex v. Gibson. 1 November 26, 1806. Indictment — Abatement — Respondeat Ouster — Final Judgment. A defendant in an indictment for a misdemeanor cannot plead over to the charge after a plea in abatement for a misnomer, on which issue is taken and found against him. The defendant was indicted at the sessions for an assault, by the name of Benjamin Gibson, 4x> which he pleaded a misnomer in his Christian name, that it was Benoni, and not Benjamin; and issue i 8 East: w. LEADING CKIMINAL CASES. 323 Indictment — Abatement — Respondeat Ouster — Final Judgment. being taken by the replication on that fact, at the trial a verdict was found for the prosecutor; and the indictment being removed by cer- tiorari, at the instance of the prosecutor in this court, a rule was given by him in the present term for final judgment, and the defend- ant served with notice to appear and receive judgment; whereupon the defendant obtained a rule, " upon reading the record in this prosecution, calling on the prosecutor to show cause why the defendant should not be at liberty to plead not guilty to the indictment." Richardson showed cause, and contended that peremptory judg- ment must be given upon a plea in abatement in misdemeanor found against the defendant, and not merely a judgment to answer over to the offence. The distinction is between misdemeanor and felony ; in the latter case, if a plea in abatement be found against the defendant, he shall plead over to the felony ; but this is a privilege allowed only in favorem vita, and does not apply to cases where life is not in jeopardy. 2 Hale, P. C. 239, cites 22 Ed. 4, 39, b. and 9 H. 4, 1. b. In strictness, indeed, if the prisoner plead in abatement, he shall at the same time plead over to the felony; otherwise, the prosecutor may move the court to enforce him to do so, or may reject the plea ; though if it be received, it is not bad on demurrer for want of plead- ing over to the felony, ( Orbell v. Ward, Carth. 56) ; nor is the defendant concluded by such omission ; but having pleaded both pleas, they shall be tried by the same inquest, which is to pass on the prisoner, and is ready at the bar. 2 Hale, P. C. 238-9 ; 2 Hawk. P. C. ch. 23, § 128. And Hawkins (ibid, and vide Finch's Law, 385,) says, that in these respects an appeal or indictment of felony differs from " appeals of mayhem and all civil actions whatever," (except assizes of mort- dancestor, &c.) where "if a plea in abatement triable by the country be found against the defendant, he shall not be suffered afterwards to plead any new matter, but final judgment shall be given against him." Now as the only instance^ mentioned of pleading over is in case of felony, it js evident that he meant to class misdemeanors with appeals of mayhem and civil actions ; and in that sense must be understood what Hawkins adds in the same section, " Also, it seems agreed, that in all other actions, except those above mentioned, if a defendant, together with a plea in abatement, plead also a plea in bar, or the general issue, he waives the plea in abatement, and the plea in bar or general issue only shall be tried." For which he cites many authorities in the margin ; amongst others, Eirton v. Williams and others, Cro. Eliz. 495 ; Noy, 34 ; and Poph. 115 ; where in an appeal of mayhem such double pleading was disallowed, as not admitted in any case but where life was in jeopardy, and then in favorem vita. And Hawkins refers to the same law in other passages, 2 Hawk. ch. 25, § 12, 150 ; as applicable to pleas in abatement to indictments. 324 LEADING CRIMINAL CASES. Indictment — Abatement — Respondeat Ouster — Final Judgment. Raine and Littledale, contra, (in answer to a question from the bench) admitted that they had not found any express adjudication of the right of pleading over in misdemeanor after a plea in abate- ment found by the country against the defendant ; but they said that there was no adjudication to the contrary; and therefore, in the absence of all express authority upon the subject, recourse must be had to legal analogy ; and that is stronger between misdemeanor and felony than between misdemeanor and civil actions. The appeal of mayhem, though penal in its consequences, is in its form a mere civil proceeding; and so Hawkins evidently considers it when he speaks in the section referred to, (2 Hawk. ch. 23, § 128,) of " appeals of may- hem and all other civil actions ; " but the form of proceeding in misdemeanor is the same as in felony. So Hawkins applies the rule of pleading over, after pleading in abatement, to all felonies generally, and not merely to those which are capital; and misdemeanors trans- portable are as penal as clergyable felonies. The original source of the distinction in favorem vitce may be traced to the Year Book, 22 Ed. 4, 39, b., which is quoted by Lord Hale and others for this purpose ; and reference is also made to it in Brooke's Abr. Bro. Abr. Appel. PI. 115. Now that was an appeal of death ; and the expres- sion of in favorem vita was used by Fairfax as an argument for the pleading over, and not as derived from any principle of the common law limiting its application to eases of life and death. And as it is admitted that in assize of mordancestor, 1 Roll. Abr. 273, novel dis- seisin, nusance, and juris ulrum, such double pleading is allowed, there is no reason why the same privilege should not extend to cases of misdemeanor; though, for what reason does not appear, it does not extend to appeals of mayhem. And they referred to a precedent in Trem. P. C. 188. The King v. The Earl of Devon, which was an information against the Earl for challenging Mr. Culpepper in the king's palace, and assaulting and wounding him there; to which he pleaded his privilege as a peer of parliament not to answer for such offence in any other than the Court of Parliament during its sitting, and for the usual time of privilege, i. e. for forty days after proroga- tion ; and because the information was exhibited against him within the forty days, which were not then passed, he pleaded t<* the juris- diction. To this there was a demurrer ; and the court gave judgment against the defendant, to plead over to the information. Lord Ellenborough, C. J. The general principle of the common law is against pleading over after a plea in abatement found against the defendant; but there are several privileged cases, which are admitted by way of exception, and one of them is in case of felony, in favorem vitce, and that extends to felony generally ; because at LEADING CRIMINAL CASES. 325 Indictment — Abatement — Respondeat Ouster — Final Judgment. common law the judgment is of death, though clergy may be demandable. Only one instance has been mentioned of the same privilege allowed in a case of misdemeanor, and that is the precedent referred to in Tremaine, which may have passed in the mere exercise of a discretionary power by the court, on account of the magnitude of the punishment for striking another in the king's palace, being no less than the'loss of the offender's hand. But at any rate the general point does not appear to have been presented to the notice of the court in judicial debate ; but it is cited merely from an entry in a book of entries. 1 On the other hand the exception in case of felony, as founded in favorem vitce, is expressly recognized by Lord Hale, who derives it from the case in the Year Books; and it is since adopted by Hawkins, though of less authority than Lord Hale, and stands also upon the case in Popham's Reports. When therefore the books agree in considering felony as an excepted case in favorem vitce, they in effect exclude all other cases not also excepted ; and if persons indicted for misdemeanors had been considered as entitled to the same privilege of pleading double, there must have been many instances of their having availed themselves of it to be met with in the books, many more probably than in cases of felony. 1 His lordship afterwards askedwhefher any notice were taken of this case in the state trials ; to which no answer was then given. But an account of it is to be found in 11 St. Tr. 133, taken from the Earl of Warrington's papers; and it is also reported in Comb. 49. There is some variation in the two statements ; according to the former, after the court had overruled the Earl's plea, and required him to plead to the informa- tion in the next term, he did accordingly then appear and plead guilty, and the court awarded him to pay a fine of £30,000 and be committed to the K. B. till payment, &a : which proceedings were afterwards declared to be illegal by the House of Lords. But from Comberbatch's Rep. E. 3 J. 2, which is inaccurately expressed, it should seem that the advice of the court to the defendant to plead in chief was bpfore his plea of privilege was formerly put in ; though insisted upon in argument both by the defend- ant and his counsel. " But notwithstanding this, (the Report states) the defendant put in his plea of privilege ; to which there was a demurrer ; and afterwards the plea was overruled by the court. And he was fined £30,000 in Trin. 3 J. 2. It appears, however, from the record of this case, ex relatione Mag) Dealtry, that the court gave judgment upon the plea of privilege, that the defendant should answer over ; upon which he immediately pleaded not guilty to the information ; and process issued to summon a jury to try that issue ; but on the return of the process, the Earl withdrew his plea, and confessed himself guilty. Whereupon the court sentenced him to give security for his good behavior, and to pay a fine of £30,000, and committed him, till payment, to the custody of the marshal in execution. But in M. 3 J. 2, the attorney- general acknowledged satisfaction of the fine and of giving security ; upon which the court discharged him out of custody. In Rex v. Johnson, 6 East, 602, there was judg- ment of respondeat ouster after a plea to the jurisdiction in misdemeanor, overruled upon demurrer. 28 326 LEADING CRIMINAL CASES. Indictment — Demurrer — Respondeat Ouster — Final Judgment. Grose, J. If the privilege of pleading over had been general we should not have heard of the exceptions. Lawrence, J., referred to 2 Hawk. ch. 31, § 6 and 7, which says that " howsoever the law may stand in relation to a general demurrer concluding in bar of an appeal or indictment, as in common demur- rers in civil actions, &c, which admits the fact, &c, it hath been adjudged that if an appellee demur in law to an appeal by reason of the insufficiency of the declaration, or generally demur to the. declar- ation, with a conclusion, et petit judicium de narratione ilia, et quod narratio ilia cassetur, &c, such demurrer shall not conclude him from pleading over to the felony, either at the same time with the demurrer, or after it shall be adjudged against him. But it seems, that in criminal cases, not capital, if the defendant demur to an indictment, &c, whether in abatement or otherwise, the court will not give judgment against him, to answer over, but final judgment." Le Blanc, J. The general rule is against the defendant; and the current of authorities shows that pleading over is only allowed in case of felony, in favorem vitce. Rule discharged. Regina v. Charles Gavan Duffy. 1 January 18, 1849. Indictment — Demurrer — Respondeat Ouster — Final Judgment. A prisoner indicted for felony under the stat. 12 Vict. ch. 12, may, after demurring to the indictment, if his demurrer be overruled, plead over to the felony. The -prisoner, who had on a former day been indicted in several counts under the statute of 12 Vict. ch. 12, for compassing to deprive and depose her Majesty from the style, honor, and royal name of the imperial crown of the United Kingdom, and with compassing to levy war against her Majesty, having demurred to the indictment, the demurrer was argued at great length. The court, (Perrin, J., and Richards, B.) having pronounced their opinion to be that the de- murrer must be overruled as to the first and second counts of the indictments, but that as to the other counts, it ought to be allowed as to all the overt acts laid in them except the first, the attorney-gen- eral thereupon, on behalf of the crown, prayed final judgment upon the demurrer. For the prisoner it was insisted that he was now 1 4 Cox, C. C. 24. Commission of Oyer and Terminer and general jail delivery for the county of the city of Dublin. LEADING CEIMINAL CASES. 327 Indictment — Demurrer — Respondeat Ouster — Final Judgment. entitled to plead over, and that the proper judgment upon the demur- rer was respondeat ouster, and not final judgment ; upon which it was ordered by the court that the question as to the proper judgment to be pronounced, which had been adverted to during the argument of th*e demurrer, should be formally argued at each side, and accord- ingly the argument was (January 13th) opened by Haichell, (Solicitor-General,) for the crown. The decision of the court upon the general demurrer taken by the prisoner to the indict- ment, being against the prisoner — looking at present to the first count — is conclusive against the prisoner, and the crown is entitled to the final judgment of the court, and to have such sentence passed upon the prisoner as the court shall think proper to pronounce, just as if he was convicted by the verdict of a jury. I think it must be taken for granted, and that I am justified in assuming that, in taking a general demurrer to the indictment, the prisoner admits the charges it contains, as, according to all the rules of civil and criminal plead- ing, the facts must be admitted in order to raise the question on which the prisoner seeks to obtain the judgment of the court. In raising the demurrer, the prisoner must have admitted the charge in the indictment, of having compassed to depose the queen, and hav- ing expressed that compassing by the printing set out in the indict- ment ; but, in point of law, he denied having committed any felony, or was guilty of any offence, and upon that he asked the judgment of the court in his favor. On the part of the crown, I submit that the prisoner, having admitted the facts by his general demurrer, and the judgment of the court being against him upon the question of law, nothing remains but to call him up for judgment, and sen- tence him accordingly. 2 Hale, P. C. ch. 33, 257. First, I submit that, even in capital cases, the prisoner, after a demurrer to the in- dictment has been ruled against him, is not entitled to plead over ; and, secondly, even if in favorem vitce he is entitled to plead over, this is not that case. " The true difference," says Hale, " seems to be this : If a person be indicted or appealed of felony, and he will demur to the appeal or indictment, and it be. judged against him, he shall have judgment to be hanged ; for it is a confession of the indict- ment, and a wilful confession." He then cites the high authority of Lord Coke to bear him out in that construction of the law. " If a party demur in law, and that be adjudged against him, he shall have judgment to be hanged." 2 Coke's Inst. 178. There is also another passage in Hale, (vol. 2, p. 257,) to the effect that if the prisoner pleads in bar, and concludes, as he ought, to the felony, and the attorney-general demur and have judgment for the crown, the pris- oner may then be put to trial, because the attorney-general's demur- rer is no confession of the offence. Sergeant Hawkins, in 2 Pleas of 328 LEADING CRIMINAL CASES. Indictment — Demurrer — Respondeat Ouster — Final Judgment. the Crown, ch* 31, § 7, says, " that in criminal cases, not capital, if the defendant demur to an indictment, &c, whether in abatement or otherwise, the court will not give judgment against him to answer over, but final judgment." The object of the law clearly is, that the life of a party shall not be endangered by mispleading, but wheh the reason ceases, of course there is no ground for the law; and when it was sought, in Rex v. Taylor, 3 B. 6c C. 509, to extend this prin- ciple to cases of misdemeanor, the court, entertaining some doubt whether they ought to pronounce final judgment for the crown or judgment of respondeat ouster, directed the point to be argued, and Lord Tenterden, in pronouncing the decision of the court, held, that the judgment against the prisoner ought to be final. It is clear that Lord Tenterden, in his judgment, was speaking of felonies at com- mon law, on conviction for which death would follow. There have been two or three cases, in 1841 and 1842, which will probably be referred to on the other side : they contain the dicta of three different judges on circuit. The first is the case of The Queen v. Phelps, Car. & Marsh. 180. It was an indictment for murder, and Mr. Graves, as counsel for the prisoner, proposed to put in a demurrer to it, and also a plea of not guilty. Alexander, for the prosecution, objected to this course, and Mr. Justice Coltman said, that in his opinion, the prisoner might demur and plead over to the felony at the same time ; at all events he was clearly of opinion that the prisoner might demur, and if the demurrer were ruled against him, then plead over to the felony ; but that dictum does not rule the present case, for it was a capital felony. In The Queen v. Adams, Car. & Marsh. 299, which was also tried before Mr. Justice Coltman, in the year 1842, the prisoner was indicted for riotously assembling and demolishing a house, which was previously a capital felony, and the judge inti- mated his opinion to be, that the prisoner might demur to the indict- ment and afterwards, plead over to the felony. In The Queen v. Pur- chase, Car. & Marsh. 617, where a similar question arose, the prisoner was indicted for a transportable felony ; his counsel observed that some doubt might exist whether the prisoner might plead over to the felony if the demurrer were ruled against him ; to which Mr. Justice Patteson replied, " I think that there is no doubt that the prisoner may plead over." Subsequent cases, however, have overruled these dicta in Carrington and Marshman's Reports, which were improvident and ought not to be acted upon. In the case of The Queen v. Odgers, 2 M. & Rob. 479, which occurred in 1843, and was an indictment for cutting and wounding, the prisoner pleaded not guilty, and after- wards his counsel proceeded to take an objection which could only be taken by demurrer. Cresswell, J., said : " It is admitted that the only mode of the prisoner taking advantage of the objection would be by demurrer, and it is said that ;,r. ::-;;:::;, ; - _: r . LEADING CRIMINAL CASES. 329 Indictment — Demurrer — Respondeat Ouster — Knal Judgment. plead over at the same time. I am decidedly of opinion that the prisoner has no such right, and Mr. Justice Patteson and myself, after consultation, on the Oxford circuit, agreed that it ought not to be allowed. If a prisoner demurs, he must abide the consequences." In Regina v. Bowen, 1 Car. & Kir. 501, decided in 1844, the prison- er's counsel having proposed to demur to the indictment, which was for the destruction of a registry of baptism, Tindal, C. J., said, " This is not a capital case; you may therefore be bound by your. demurrer, and may not be allowed to plead over. It is a very doubtful point — I give no judgment — I only forewarn the counsel that they may be concluded by the demurrer." In consequence of this opinion by the chief justice, who was, besides his eminence as a judge, remarkable for his caution in not suggesting any opinion in which the law did not warrant him, the prisoner's counsel did not persevere in putting in the demurrer. If we go back to the fountain head, where the subject is to be found in its primitive purity, it will be seerr that the proposition contended for on behalf of the crown, is well founded, namely, that even in a capital case a prisoner is bound by a demur- rer. Napier, Q. C, and Butt, Q. C, for the prisoner. The court is called on by the counsel for the crown to make a startling decision, and one which must be prejudicial to the fair administration of jus- tice. If a prisoner has counsel to assist him in matters of law, it is his duty to see that he is not, by the frame of the indictment, em- barrassed in pleading to it; and if he considers the frame of the indict- ment likely to embarrass the prisoner, he is warranted in submitting the question to the consideration of the court ; but can it be con- tended that he does so at the peril of the prisoner, and that he shall be liable to transportation for an error of his counsel ? The diffi- culty cannot be got rid of by endeavoring to establish a distinction between capital and other cases. In 2 Hale's P. C. 255, it is laid down, that if it be but an extra-judicial confession, though it be in court, as where the prisoner freely tells the fact, and demands the opinion of the court whether it be felony, though upon the fact thus shown it appear to be felony, the court will not record his confession', but will admit him to plead to the felony " not guilty." The con- fession of the fact is not as an admission of guilt, but for a judicial pur- pose, to try whether the indictment charges the felony well or not. In 4 Bl. Com. 334, it is said, " some have held that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judg- ment and execution," &c. But this is denied by others who hold that in such case he shall be directed and received to plead the gen- eral issue not guilty after a demurrer determined against him." The 28* 330 LEADING CEIMINAL CASES. Indictment — Demurrer — Respondeat Ouster — Final Judgment. authorities upon this questiqn are to be found in Gabb. Cr. L. 325-6. As regards the question at issue, there is no distinction between general and other demurrers. The crown relies upon an authority based upon a case in one of the Year Books ; but, as Chief Justice Gibbs said, you might find a case in the Year Books for any thing. If a man refused to put himself on the country, pro bono and malo, and rested on his plea, refusing to submit his case to any mode of trial, he might be hanged, but that is not the present case. What difference, in reason and common sense, is there between a man put- ting in to the indictment a bad plea, confessing the offence, and put- ting in a demurrer to the indictment ? As to rules which have been made in favorem vita, Gray's case, 11 CI. & Fin. 482, establishes the proposition that where there is a privilege in favorem vita given to felony, it is not taken away by the punishment being reduced from capital punishment to transportation ; since in that case the distinction between Capital and other felonies, as regards the privileges of the accused, is abolished. There is certainly some obscurity concerning the ancient doctrine as laid down in the old books : " If a man in- dicted of felony demur to the indictment, and will not otherwise answer, this is no standing mute, but if the demurrer be ruled against him, he shall have judgment of death," 2 Hale, P. C. 315 ; but that is only because he refuses to answer, and will not put himself on the country. The obscurity may be cleared up by considering that when a party demurred he could not be considered as mute, and the pun- ishment of peine forte et dure could not be applied, which was only to compel a party to plead — if, then, in such case, the party would not put himself on the country, the judgment was final, not because he demurred, but because he rested on his demurrer, and would not go to trial at all. In the Year Book, 14 Edw. 4, p. 7, plac. 10, the words are s'il demur sur un plea, that is, if he rest: on the plea, and does not put himself on the country. 1 Dyer, 39, b. plac. 65 ; Hume v. Ogle, Cro. Eliz. 196 ; Wilson v. Law, 1 Lord Raym. 20. As to the cases cited from Carrington & Marshman, the dictum of Patte- son, J., is clearly in our favor ; and Regina v. Bowen, 1 Car. & Kirw. 503, was tried before the decision of the House of Lords in Gray's case had been pronounced. In The Queen v. Houston, Jebb & B. 103, Mr. Justice Burton said, " this being an indictment for misde- meanor, and not for felony, the prisoner is not, upon the demurrer taken by him being overruled, entitled to plead over;" and even in misdemeanor there was recently a case in which the party demurred with liberty to plead over. The Queen v. The Birmingham and Glou- cester Railway Company, 3 Q. B. Rep: 224, and S. C. 1 G. & Dav. 459. The 11 & 12 Vict. ch. 12, under which the indictment in this case is framed, plainly contemplates a conviction by verdict ; the 4th LEADING CEIMINAL CASES. 331 Indictment — Demurrer — Respondeat Ouster — Final Judgment. and 7th sections relate only to convictions in open court, but a de- murrer cannot be considered such. In Rastall's Entries, p. 584, after a plea of sanctuary, the prisoner was told that if he wished he might plead over ; he did so, and was acquitted. Bacon states, Abr. tit. " Demurrer," that the judgment in demurrer is respondeat ouster. A demurrer to an indictment is the same as a plea in abatement. 2 Hale, P C. 236. There is no distinction in cases of appeal. ( Com. Dig. tit. "Appeal." A demurrer can only be said to confess the facts because it does not deny them, for it does not in express terms admit them. It is only an implied admission of what is well pleaded, but here the prisoner says nothing is well pleaded. 2 Hale, P. C. ch. 29, p. 225. It is plain from Hale that there was a form whereby the prisoner could, before pleading, ask for the judgment of the court, whether the indictment was sufficient ; where a man rested his case entirely on the question raised as to the indictment, and refused to plead, then final judgment should be given against him ; and in men- tioning the opinion of Choke, J., Hawkins merely referred to it as an authority to that effect. Cresswell, J., in The Queen v. Odgers, 2 Moo. & Rob. 479, abided, as I contend, by the*ppinion he had ex- pressed in the former case. The point raised in Regina v. Odgers was, whether a man could plead and demur together, but there is no doubt that he might demur in the first instance, and afterwards plead " not guilty." The Attorney- General, (Monahan,) in reply. The court is bound, I submit, to pronounce final judgment in this case. I think that it is a matter of law. I admit that it is matter of discretion with the court to allow a demurrer to be withdrawn, but what I am now contending for as a matter of law is the form of the judgment on the demurrer. In misdemeanor % cannot be doubted that the proper judgment would be final judgment, and not respondeat ouster. Rex v.. Gibson, 8 East, 110. It is worthy of notice that the court decided the mat- ter on a plea of misnomer. It was argued at very considerable length, and the judgment being against the party — upon a plea which did not go at all to the merits of the case — still the court held that the judgment was final. Rex v. Taylor, 3 B. & C. 502. I refer to these cases to show the ground and reasons on which they were decided, and it will appear that the same rule will apply to cases of felony. It appeared, in Rex v. Taylor, on an inspection of the plea of autrefois acquit, that the offences charged were not the same. The court ordered final judgment to be entered. It is a very strong case for the prayer of judgment by the plaintiff that the defendant might be ordered to plead over ; but the court thought that it was their duty, notwithstanding the prayer, to give that judgment which was 332 . LEADING CRIMINAL CASES. Indictment — Demurrer — Bespondeat Ouster — Knal Judgment. right, and that the man should have final judgment. I understand the meaning of a demurrer to be, that a party puts himself on trial by the court. Gavan v. Hussee does not apply, for the demurrer was allowed, and the question in the present case did not arise. The case in 1 Salk. 59, ( Wilson v. Law,) is not a demurrer to the insuffi- ciency of the declaration, but to the sufficiency of the process. Hume v. Ogle, Cro. Eliz. 196, does not bear out the argument of the pris- oner's counsel. The case of Gray v. The Queen does not go so far as has been stated ; it only decided that in felonies, the punishment of which had been capital, the prisoner retains his right of peremptory challenge, though the punishment be no longer capital ; but it does not decide, as has been contended, that privileges which have been granted in favorem vitce are to be extended to all felonies. Great mischief will result if the law turn out to be this, that a party may demur and then take his chance of a trial by the country ; and the case referred to by Hale, in 2 P. C. 315, reported in the Year Book, 14 Edw. 4, was a case where a party put in an imperfect plea. If an indictment is insufficient, the prisoner can move to quash it,Jkit that is different from the course taken here. Hawk, book ii. ch. 23, § 137, has been relied on, but there is a dis- tinction between appeals and indictments. An appeal was not at the suit of the crown, and was allowed to be heard after an indict- ment. One of the most recent cases is Ashford v. Thornton, 1B.& Aid. 404 ; 2 Hawk. ch. 31, § 5, edit, of 1824 ; Stanford, lib. 3, p. 150 ; 3 Lord Biym. 70, where the pleadings in Wilson v. Law are set out ; several of the authorities referred to as adjudged cases are not cases adjudged on the question at all. It is perfectly plain that the case in Dyer ( Gavan v. Hussee,) cannot be said to be a decision on the point, for the demurrer was allowed. I do not deny that if a proper case is made for it, the court has the discretion toj expunge a demur- rer from the record altogether, and giving no judgment upon it, per- mit the party to plead upon his original arraignment. But the pres- ent case is not, I submit, a discretionary one at all ; the prisoner has chosen to take the opinion of the court. I therefore respectfully call for the judgment of the court, the only judgment that can properly be made the subject-matter of further consideration, or be received by a court of appeal. I believe the case is now to be decided, for the first time, on principle, and on principle and on the weight of author- ity in criminal as well as civil cases, I submit that a demurrer carries with it an admission of the facts on the record, and, therefore, that the judgment ought to be final. Our. adv. vult. Perrin, J. The court has already pronounced judgment upon the LEADING CRIMINAL CASES. 333 Indictment — Demurrer — Respondeat Ouster — Final Judgment. demurrer in this case. The effect of that was the overruling the de- murrer to the first and third counts, and allowing the demurrer to all the overt acts in the other counts except the first, of course specifying those acts. Upon this the crown prayed final judgment, and the prisoner insisted that he was entitled to plead over to the indictment. Several cases have been cited upon both sides : we have looked into all of them, and my brother Richards has mentioned a case which was not mentioned in argument, the latest case on the subject, and not only the latest, but one which occurred in 1845 — and since the question was under the consideration of the English judges concern- ing felonies as in Gray's case — namely, the case of The Queen v. Serva, 2 Car. & Kir. 53. In that case a demurrer was put in and overruled, after which the prisoners were permitted to plead over to the felony, and they pleaded " not guilty." We consider it right to follow that case, and pursuing the precedent to which we have been referred in Rastall, after pronouncing our judgment upon the demur- rer, at the desire of the prisoner we shall allow him to plead over to the felony ; and now, clerk of the crown, ask him whether he is guilty or not guilty ? The prisoner having been called ou to plead, pleaded " not guilty," and the court was adjourned to the 6th February. The question whether a judgment against true, and the defendant decline to plead a defendant shall be final, or a respondeat the general issue, a plea of not guilty ouster, may arise in each of the following shall be entered. Under such statutes, cases: a demurrer has been considered as not 1st. When a general demurrer to an in- confessing an indictment. See Thomas v. dictment is overruled. The Stale, 6 Missouri, 457; Ross v. The 2d. When a plea in abatement is found State, 9 Missouri, 687. The contrary against the defendant. view is the foundation of the decisions 3d. When the defendant's plea in lar before cited. But a serious effort-has been is adjudged bad. made, oftentimes successful, to establish a 1st. When a demurrer to an indictment different rule in felonies, especially in such is overruled. felonies as are punished capitally, and in And here all authorities agree, that in such cases to allow a defendant to plead misdemeanors, if a demurrer to an indict- over after his demurrer is overruled. Such ment is overruled, the demurrer is to be was the decision in Eegina v. Phelps, 1 treated as an admission of the facts averred Carrington & Marshman, 180, in 1844. in the indictment, and final judgment That was a charge of murder, and Colt- shall be rendered against the defendant, man, J., said: "I am clearly of opinion 1 Chitty's Crim. Law, 442 ; Hawkins, P. that the prisoners may demur, and if that C. book 2, ch. 81, § 7; Archbold, Crim. demurrer should be decided against them, PI. 85 ; Wickwire v. The State, 19 Conec- they may plead over to the felony, — and ticut, 478 ; The People v. Taylor, 3 Denio, such a course was adopted. And the like 98 ; The State v. Shaw, 8 Humphreys, 32. decision was made in Regina v. Purchase, In some American States, statutory provis- 1 Carrington & Marshman, G17, by Mr. ions enact, that in all cases where a defend- Justice Patteson, in 1842. That was a ant does not confess an indictment to be charge of embezzlement, not a capital 334 LEADING CRIMINAL CASES. Indictment — Demurrer — Respondeat Ouster — Final Judgment. felony, and, therefore, this was an exten- sion of the case of Regina v. Phelps. And the -whole Court of Criminal Appeal al- lowed the same bourse in Regina v. Smith, 4 Cox, C. C. 42, in 1849, where the charge was for sending threatening letters. In like manner, after a full discussion of the question in Regina v. Duffy, 4 Cox, C. C. 24, the same decision was made in Ireland in 1849. And as the reports of Cox are rarely found in this country, we have re- printed the case in full, ante, 326. It was several times before the court ; was a case of much importance in itself, and is the best authority on that side of the ques- tion. On the other hand, in Regina v. Bowen, 1 Carrington & Kirwan, 504, in 1844, Chief Justice Tindall was of opinion that if a demurrer to a charge of felony, not capital, be overruled, the defendant might be concluded by his demurrer, say- ing, however, that it was a very doubtful point. And Regina v. Mitchell, 3 Cox, C. C. 22, in 1848, in the Irish court, is the same way. See also 'Regina v. Odgers, 2 Moody & Robinson, 480, that a defendant cannot demur and plead over at the same time. In Regina v. Hendy, 4 Cox, C. C. 242, in 1850, Earle, J., said : " This subject had received his most particular attention, and his opinion agreed with the opinion of that most eminent judge, the late chief justice of the Court of Common Pleas. He considered that the right of the prisoner to plead over, after judgment against him, in case of a felony, was un- known to the law. Any person demurring must stand or fall by his act." Finally, the question was fully considered in the Court of Criminal Appeal, the highest criminal court in England, and the point may there be considered as at rest. Regina v. Fader- man, 4 Cox, C. C. 359, (1850.) That was an indictment for a felony in forging a note, and the broad principle was estab- lished that a general demurrer to an in- dictment confesses the subject-matter of it, and judgment against the defendant on such demurrer is final. As this case is not fully reported, except in 4 Cox, C. C. 859, we give the arguments on this point in full. For the prisoners it was argued, that the judgment should not be final. In civil cases, the judgment is final, because the matter in the previous plead- ings is confessed ; but nothing is taken to be admitted in a criminal case, and the prisoners here merely ask the opinion of the judges whether, in point of law, they ' are to be called upon to answer the indict- ment. Alderson, B. In 2 Hawkins, 334, it is said : " That if a prisoner demurred to the indictment in criminal cases, the court would give final judgment against him." In 4 Blackstone, Comm. 431, it is laid down that, " if judgment be against a de- fendant, and the offence for which he is indicted be a misdemeanor or a felony, but not capital, such judgment, according to the better authorities, is final ; and even in capital cases, some have held that if, on demurrer, the point of law be adjudged against the defendant, he shall have judg- ment of execution, as if convicted by ver- dict." j ; , Parry. In Archbold, Crim. PI. 81, 7th , ed., it is said to be at least doubtful * " whether, in a felony, the judgment is or is not final. Alderson, B. And in 1 Starkie, 315, it is observed r " By a demurrer the defend- ant refers it to the court to pronounce whether, admitting the matters of fact alleged against him to be true, they, in point of law, constitute him guilty of the offence charged." The question then is, whether humanity is to prevail against principle. Parry. But universal practice, especially in criminal cases, becomes principle, and the necessity for demurring is much in- creased since the 7 Geo. 4, ch. 64, which declares that many defects shall be cured by verdict. In 2 Hale's P. C. 257, it is said : " And regularly in all cases of felony or treason, where a man pleads a special matter, though he concludes his plea with not guilty to the felony, or do not conclude it so, yet if his plea be tried, or found, or ruled against him, he shall be put to his plea of not guilty, and be tried for the fel- ony ; for, though a man shall lose his land in some cases for mispleading, yet he shall not lose his life for mispleading." Alderson, B. That clearlv applies to LEADING- CRIMINAL CASES. 335 Indictment — Demurrer — Respondeat Ouster — Final Judgment. cases that are capital ; but then all felon- ies, except petty larceny, were so ; for you could not tell, in grand larceny, that a man would not be hanged, because he might not plead his clergy; the rule is always laid down as one infavorem vita. Parry. But the question is, whether that does not mean where judgment would ren- der a man civilly dead. Suppose a person pleads a pardon. There is a confession ; but, if found against him, the judgment shall.bo respondeas ouster. 2 Hale, 256. Aldekson, B. In that case there is no confession ; the prisoner merely says, if I was guilty of that offence I have been pardoned. Here the prisoner says, I have done what is alleged against me, but it does not constitute a crime. Parry. There is no further confession in this case than in the former ; the prisoner may just as weli be supposed tosay, if I have done what is here charged, it is no crime. In Regina v. Purchase, Carrington & Marshman, 617, Patteson, J., expressed a decided opinion that a party demurring to an indictment for embezzlement might, on judgment being given against him, plead over. In the case of Gray v. Regina, 11 Clark & Finnelly, 487, a majority of the judges were of opinion that a prisoner, al- though indicted for a crime that was not capital, was entitled to challenge jurors peremptorily, notwithstanding that the privilege was generally said to be infavo- rem vitcv. In some recent cases the ques- tion has been mooted whether a defendant could demur and plead at the same time. Regina v. Odgers, 2 Moody & Kobinson, 479. In Regina v. Phelps, Carrington & Marshman, 180, Coltman, J., observes: " I am inclined to think that a prisoner may demur and plead over to a felony at the same time ; at all events, I am clearly of opinion that he may demur, and if the demurrer shall be decided against him, he may plead over to the felony." Williams, J. In the case of a dilatory plea, there seems no inconsistency in plead- ing not guilty with it. Aldkkson, B. And where there is a demurrer and a plea of not guilty at the same time, we cannot give judgment of respondeas ouster, because the prisoner has pleaded already ; and we cannot give final judgment, because we have already allowed him to plead a plea which remains undis- posed of on the record. • Parry. In Regina v. Adams, Carrington & Marshman, 299, Coleridge, J., allowed a prisoner to demur and plead at the same time. It is true that in Regina v. Bowen, 1 Carrington & Kirwan, 504, Tindal, C. J., suggested that a party might be bound by a demurrer, but that was the newly-created offence of having destroyed a register, which never was a capital felony, and there may be a distinction between such cases and the present one. Crksswell, J. In Gray v. Regina, the chief baron seems to be of opinion, that when the capital punishment is taken away simply, and a different punishment awarded by law, all the other incidents remain the same. Now, the charge here never was a capital one. It is made a felony by an act passed subsequently to the repeal of the punishment of death. Alderson, B. You will find many dicta in the books, that peremptory challenge was given in all cases of felony. . Parry. In Regina v. Taylor, 3 Barne- wall & Cresswell, 512, which was a casew misdemeanor, it was held, that the judg- ment was final on demurrer ; but in this, and in many other cases, the distinction is always stated to be between misdemeanor and felony generally, without drawing any distinction between capital and other felonies. In the case last named, in favo- rem vitm seems to be analogous to in favo- rem liberatis. Alderson, B. If that is so, why should not the principle be extended as well to misdemeanors as felonies, since they are# generally punishable by imprisonment ? Parry. In Regina v. Serva, 1 Cox, C C. 292; 2 Carrington & Kirwan, 53, the prisoners demurred to tho indictment, and were afterwards allowed to plead not guilty on judgment given against them. So also in Regina v. Duffy, 4 Cox, C. C. 24, a case which lately occurred in Ireland, and which was fully and elaborately discussed, the same course was pursued. In Kastall's Entries, 584, the question was raised as to a plea of sanctuary, and it would seem 336 LEADING CKIMINAL CASES. Indictment — Demurrer— Respondeat Ouster — Pinal Judgment. there that the judgment against the pris- oner was not final. Cress well, J. But that has nothing to do with the question. Here there is a confession ; there, there was none. Alderson, B. The plea of sanctuary- was called a declinatory plea. The pris- oner there said the crown had no right to make him plead at all, so that the very- nature of the judgment against him was, that he should answer over. He said he would not plead, and the court said he must. Parry. The words of our demurrer are, that the prisoner ought not to be bound to answer the indictment, because it is not sufficient in law. If the court is against the demurrer, the natural reply is that they must answer. Cresswell, J. But the form of the joinder in demurrer is, that the prisoner ought to be compelled to answer, and judg- ment of conviction is prayed. Parry. In autrefois acquit or autrefois convict, the judgment is, that the prisoner shall plead over. Alderson, B. But the question there is as to the identity of the offence. If found against the prisoner, all that is de- cked is, that that of which he has been convicted or acquitted is not the same as that with which he is immediately charged. Here he admits the facts in the indict- ment. There he admits other facts, and asks whether they are not those alleged against him. In 1 Chitty's Criminal Law, 422, the distinction between a demurrer in bar and a demurrer in abatement is clearly laid down. In the one case the judgment is final, in the other it is respon- deas ouster. a Metcalf, (on the same side.)- In 2 Hale, 255, 257, the cases cited are distinctly in favor of the prisoners. No admission can be made by a prisoner in a case of felony. Alderson, B. Surely this is not so. If a man were to say upon his trial that he was guilty, probably the jury would think he spoke the truth, and might say so by their verdict. Metcalf. Yes, it might be evidence to go to the jury, but it could not be taken as a fact proved without the intervention of a jury. In favor of a final judgment, the attor- ney-general said : " By the demurrer itself the prisoners pray that they may be dis- charged; we on the contrary pray that they may be convicted. This is a question which comes formally before a court for the first time, because in all those cases in which opinions have been expressed there has been no demurrer properly drawn up ; and those opinions in favor of a judgment of respondeas ouster have been adopted rather on the ground of mercy than on that of any definite principle. If this was a plea in confession and avoidance, instead of a demurrer, no doubt the judgment would be final. Alderson, B. Every demurrer does not involve a confession, as, for instance, where it is with respect to the name. Attorney-General. In Regina v. Pur- chase, it is true that Patteson, J., thought the judgment on demurrer was not final ; but there was no argument on the point, and other judges both publicly and pri- vately have expressed opinions the other way. . In Regina v. Serva, it does not clearly appear whether there was any former judgment given, or whether the demurrer was allowed to be withdrawn ; the report merely states that the demurrer was overruled ; at all events that was a capital case, and therefore inapplicable to this discussion. The charge in Regina v. Duffy was treason before the late act of Victoria, making certain treasons felony, and was therefore capital ; and if there is any thing in the suggestion that the rule in favorem vitas applies to all cases that were once capital, although no longer so, the answer is, the crime alleged in this in- dictment never was a capital one. Regina v. Gray has no bearing on the question, because, as Lord Campbell there says, the rule as to challenging jurors was well es- tablished, and has been recognized by the legislature in felonies which are not capital. Alderson, B. The act of Henry 8, as to challenges, expressly refers to felonies ; that this is the rule, the reason of it might be that it was in favorem vilm. Attorneys General. The prisoners have chosen to take this course after full notice ; LEADING CRIMINAL CASES. 337 Indictment — Demurrer — Respondeat Ouster — Final Judgment. tage of any legal technicalities in the way they have done ; but if they do so, they must also take the risk. If this course were to be generally pursued, the statute of Geo. 4 would become a nullity. The learned judges took time to con- sider their judgment, which, on the follow- ing morning-, was delivered by Alderson, B. : " We have taken time to consider the various questions raised, and the first point which it is necessary to decide is, whether the demurrer to the indictment can be sustained, and we all think it must be overruled. Then comes the much more difficult and important question, as to what judgment is to be given by the court on their overruling the demurrer ; and we have taken time since yesterday to look fully into the authorities on the subject. It is a question which has very seldom come before judges in modern times, and, after an experience of twenty years, this is the first time it has been raised before me. On full investigation, I have no doubt that the judgment must be a final one. It ap- pears to me clear enough that any plea in confession and avoidance of a felony, if decided against a prisoner, subjects him at once to all the consequences of a confes- sion. This is according to every rule and principle of pleading. It is with reference to the old law of appeal that we shall find most of the authorities on the question be- fore us, for it has seldom been mooted in cases of indictment. In appeals of felony there were several pleas which did not confess the felony at all. For instance, where the appellant was the brother of the party killed, it was competent to plead his bastardy, or that he had an elder brother to whom the plea belonged, and there is an instance in the Year Books, 7 Edw, 4, in which that last-mentioned plea was pleaded, and the question arose whether there was an elder brother of the whole blood or half-blood; in one case the ap- pellant would be entitled to the appeal, in the other, not. There the plea did not go to the confession of the crime itself. What- ever might be the guilt or innocence of the accused, the question raised was merely whether he was appealed by the right per- son. So, again, if a woman appealed a man 29 of the death of her husband, it was com- petent to plead that they were never ac- coupled in lawful matrimony, and that was tried by the certificate of the bishop. Here, also, the question of guilt or inno- cence is untouched. In 2 Hale, 237, there is a case in which a person, indicted as Alan Gerard, pleaded that he ought to have been indicted by the name of John Allen, and the attorney-general, instead of demurring, replied that he was as well known by one name as by the other. Here, then, is another instance in which guilt is neither confessed nor avoided. There is a great number of others of the same character; amongst them those of autrefois convict and autrefois acquit, and many other dilatory or declinatory pleas. It seems to have been the practice in olden times to plead the plea of not guilty with the declinatory plea. In 2 Hale, 255, it is said : ' Regularly, where a man pleads any plea to an indictment or appeal of felony that doth not confess the felony, he shall yet plead over to the felony in favorern vita, and that pleading over to the felony is neither a waiving of his special plea, nor makes his plea insufficient for doubleness.' That shows distinctly that the two were pleaded together, and they well might stand together but for the objection of doubleness ; and infavwem vilm the courts would not allow this to prevail. But this practice was always confined to those cases where the plea, together with which that of not guilty was pleaded, did not confess the felony ; for, if it did, then the pleading would not only be double, it would be contradictory. If the other cases are fully examined, this will be found to be the so- lution ofthe difficulty that has arisen on the subject. Even in those cases where a plea is pleaded that does not confess the matter at issue, — in misdemeanors aud in civil suits, — the judgment against the de- fendant on such a plea is final. But in felonies it is said the indulgence of the common law was applied to mitigate the ordinary and general rules of pleading in favorern vitas, and in all capital cases, there- fore, the defendant was allowed to plead over, but he was never allowed to plead a plea in confession and avoidance, at the 338 LEADING CRIMINAL CASES. Indictment — Demurrer — Respondeat Ouster — Final Judgment. same time with a plea of not guilty. And where the plea was not in confession, and might be pleaded at the same time with not guilty, Lord Hale mentions that a de- fendant should take care that they are pleaded together, for, if not, he may lose the advantage he would otherwise obtain from the indulgence the law gives ; and he puts some instances which clearly show that it was a mere indulgence, and that a party, in order to avail himself of it, was obliged, according to strictness, to plead not guilty at the same time with his dila- tory or declinatory pleas, or any special one which did not confess and avoid the felony. That being the case, we find we have authorities distinctly to show that, on pleading a plea in confession and avoid- ance, which was determined against a prisoner, the judgment was final, and he was not allowed to plead over. So it was in the case of a general demurrer. But then comes the difficulty arising from Lord Hale's observation on the case in the Year Books, 14 Edw. 7, and which seems to have misled those learned judges whose dicta have been quoted to us, and who, in the hurry of Nisi Prius, had not the oppor- tunity which we have had of looking into the authorities. Lord Hale speaks of that decision, which is expressly in point, that it is to be understood " cum grano salis.'' But, in saying so, he does not mean to question its validity, but only to apply to it a distinction which the court, on the present occasion, is prepared to act upon ; otherwise he would have said that it ought not to be attended to at all, but, on the contrary, he says that it is a good opinion if you do but understand it aright. It was a case which came before all the judges in the Exchequer chamber. A prisoner, hav- ing pleaded, refused to put himself upon the country, and it was considered by some of the judges that he might have judgment as if he had confessed ; by others, that he might be put to the peine forte et dure ; and Choke, J., says, by way of illustration : ' If a person be indicted or appealed of felony, and he will demur to the indict- ment or appeal, and it be adjudged against him, he shall have judgment to be hanged.' Now, it is upon that observation, made by one of the judges in the course of the ar- gument, and very much to the point, — an observation, moreover, to which the other judges assented, — that Lord Hale says it is to be understood cum grano salis, and that it cannot be taken generally that, if a man demurs, and the demurrer is decided against him, the judgment must be final. He means that in some cases it is final, and in others it is not. Then the question is, what cases are within the rule, and what are to be excluded ; and, then, does the present case come within one branch or the other? Now, it seems to me that the rule which is applied to pleas gener- ally applies to demurrers also. Where the plea is a plea in confession and avoidance, the party has final judgment upon his plea being adjudged against him, but where it is dilatory or declinatory, and might well be pleaded with not guilty, he has only judgment against him upon that plea, and is permitted to be tried ; indeed he has a right to be tried upon the plea of not guilty, where he had pleaded it with that plea. Even where he had not, it seems to have been the habit of the judges, as a mere indulgence, to give him the same advantage, and to permit him, in cases of capital felony, that is to say, in all cases of felony — for I do not mean to make any distinction between them — to take his trial upon the merits. Lord Hale appears, therefore, to mean that the doctrine laid down must be subject to the same rules as were applicable to the case of a special plea, and that where the demurrer really confess- es and avoids the charge, judgment upon it against the prisoner is to be considered final ; but that where the demurrer is what is called a demurrer in abatement, there judgment is not final. Some demurrers are to the jurisdiction of the court, and we had a case cited from Dyer, 38, of a de- murrer to the jurisdiction, which demurrer might well stand with a plea of innocence, and there, after demurrer adjudged against the party, he had an opportunity of plead- ing not guilty, because he might plead that probably with a demurrer. There was, too, a demurrer in a celebrated case in Wilson, to an appeal of death, in the time nf T.rvrd MnnafiplrL Tlip.rp. thev LEADING CRIMINAL CASES. 339 Indictment — Demurrer — Respondeat Ouster — Final Judgment. pleaded to the appeal of death, praying that the writ might be quashed, and they pleaded with that plea a plea of not guilty to the felony, as they might well do, seeing that their plea went to the quashing of the indictment, and not to a confession of it, and there was judgment in favor of the defendant. So, again, some pleas are called by Hawkins demurrers in abate- ment. Now to these the indulgence which Lord Hale speaks of applies, and the pris- oner was allowed to plead over after de- murrer adjudged against him ; but it seems doubtful, in case he had not pleaded not guilty with the demurrer, and afterwards refused to plead it, whether or not the court must not have given judgment final against him, because they could not com- pel him, after having once demurred, to plead by peine forte et dure, for the de- murrer was in the nature of a plea. And this is said by Lord Hale, P. C. 315 : ' If a man indicted for felony demur to the in- dictment, and will not otherwise answer, this is no standing mute; but if the de- murrer be ruled against him, he shall have judgment of death.' And therefore it ap- pears that even in those cases in which, by the indulgence of the law, he was permit- ted to plead over, inasmuch as he could not be compelled to do so after the de- murrer was overruled, if he refused so to plead, he was to have judgment of death ; that was the only way in which the court could proceed against him. This seems to me decisive of the question that the strict rule of law was that the judgment was final, and that it was only by the indul- gence of the court that the party was al- lowed to come in and plead not guilty in those particular cases to which the indul- gence was applicable. If he had lost the opportunity by not pleading not guilty with the demurrer, in that case there was nothing on the record but the demurrer, and the strict judgment, (although it was in certain cases relaxed,) was a final one. If that was so, it decides the present case, because there is nothing upon the record but the demurrer. No plea of not guilty pleaded with it, neither could it be so pleaded, for then the demurrer and plea would be contradictory. Therefore, it seems to me, upon the whole case, this being a general demurrer, that it does con- tain a confession, and that the permission to plead not guilty afterwards is an indul- gence granted by the court only in those cases in which the demurrer is what is called a demurrer in abatement, and this is not one of that description. The judg- ment is a final judgment. We have looked into the modern authorities that have been cited to us which, we repeat, only appear to be judgments given at Nisi Prius, and are not therefore of that weight to which they would otherwise be entitled from the knowledge and learning of those learned judges whose names are appended to them. The cases seem to us not to have been so fully considered as under other circum- stances they might have been, and we are compelled, therefore, to decide against them." Leave was then asked to withdraw the demurrer, and plead to the merits, but this was refused, and the prisoners were sen- tenced to transportation. See also 1 Deni- son, C. C. 576 ; 3 Carrington & Kirwan, 359. But, by the general practice it seems that leave is generally given to withdraw a demurrer and answer over to the charge in the indictment. Such a practice is al- ways within the discretion of the court. Regina v. Smith, 4 Cox, C. C. 42. And indeed many cases consider it discretionary with the court, to allow a prisoner in all cases, felonies and misdemeanors, to plead over, even after he has taken the chance of his demurrer. See The Stale v. WUkins, 17 Vermont, 152 ; Bennett v. The State, 2 Yerger, 472; Evans v. Commonwealth, 3 Metcalf, 453. And in England this has been allowed even in cases of misde- meanors simply. Regina v. Birmingham, and Gloucester Railway Co. 3 Queen's Bench, 223, ante, 127. 2d. When a plea in abatement is found against the defendant. And here a marked difference exists whether the plea in abatement is found bad orf a point of law or of fact. In the latter case, it is fully settled that judgment shall be final. The King v. Gibson, ante, 323. In the former, the judgment is a respondeat ouster. Accord- 340 LEADING CEIMINAL CASES. Indictment — Demurrer — Respondeat Ouster — Final Judgment. ingly, if the plea in abatement be to the jurisdiction of the court, that being matter of law, if found against the defendant, he may then answer over to the merits. Rex v. Johnson, 6 East, 583. So, where a plea in abatement, that one of the grand jury who found the bill, was not legally qualified, was overruled, the prisoner was ordered to plead over. Regina v. Duffy, 4 Cox, C. C. 172, 190. This distinction between the result of a verdict against the defendant, on his plea in abatement, and a judgment against him on a demurrer, by the prosecution to such plea, is founded upon the principle, that whenever a man pleads a fact which he knows, or ought to know, is false, and the verdict be against him, the judgment ought to be final ; for every man must be presumed to know whether his plea be true or false, as a matter of fact ; but if his plea in abatement be adjudged in- sufficient in law, there shall be an oppor- tunity to answer further ; for every man is not presumed to know the matter of law, which he leaves to the judgment of the court. In Missouri, by force of a statute, a defendant has this right, in all cases, whether the plea in abatement is found untrue in fact, or insufficient in law. Maeder v. The State, 11 Missouri, 363. 3d. When a plea in tar, as of a former acquittal, is adjudged bad. The earliest reported case on this point seems to be that of Rex v. Taylor, 3 Barnewall & Cresswell, 502 ; better re- ported in 5 Dowling & Eyland, 422. It was an indictment for a misdemeanor, viz., keeping a common gaming-house. The defendant pleaded autrefois acquit; which, upgn demurrer, was adjudged in- sufficient, because the two offences were not the same. Some doubt having subsequently been raised whether the court should pro- nounce final judgment for the crown, or only judgment of respondeas ouster, the case was directed to be argued again upon that point ; accordingly, on a former day in this term, the case again came on for argument. Chitty, for the crown. The court must enter final judgment against the defend- ant. All the authorities concur in show- ing that a plea of autrefois acquit is a plea in bar and not a plea in abatement. 2 Hale, P. C. 241 ; Hawkins, P. C. b 2, ch. 35 ; Comyn's Digest, Indictment, L. ; 4 Blaekstone, Com. 335, 336 ; 2 Burns, In- dictment, XL ; 4 Reports, 45. Had this been a plea in abatement, the defendant might have been entitled to judgment of respondeas ouster, though it has been de- cided that in cases of misdemeanor, where issue is taken upon a plea in abatement, and is found against the defendant, the judgment is final. Eichorn v. Le Maitre, 2 Wilson, 367; and Rex v. Gibson, 8 East, , 107. If judgment be given against a de- fendant on demurrer to a plea in abate- ment in cases of misdemeanor, the judg- ment is respondeas ouster, and not final ; but the judgment on a demurrer to a plea in bar, is final. Bowen v. Shapcott, 1 East, 541. Had the plea been 'autrefois convict, or a pardon, it is quite clear that the de- fendant would not have been entitled to answer over ; for though in cases of felony, if such pleas are found against him, a de- fendant may have judgment of respondeas ouster, in cases of misdemeanor the judg- ment is final, and the court may proceed to pass sentence as upon a conviction. 2 Hale, P. C. 256. But that distinction is taken only in favorem vital, 2 Hale, P. C- 239, 247, and does not apply to cases of misdemeanor ; for there the rule is the same as it is in civil cases. Regina v. God- dard, 2 Lord Rajfaiond, 923 ; see 1 Chit- ty, Crim. Law, 451, 463, 470, and the au- thorities there collected on this subject. Brodrick, for the defendant. This ques- tion is res integra, and as it is of vital im- portance to the public, demands the most careful consideration of the court. No case has been cited, nor can any be found, which furnishes an authority for saying, that the present defendant must be con- cluded by the judgment given against him on the demurrer to his plea. The books certainly contain dicta bearing upon the subject, but there has never yet been an express decision on the point. In cases of felony it is admitted that the defendant may plead over an issue on a plea in LEADING CRIMINAL CASES. 341 Indictment — Demurrer — Respondeat Ouster — Final Judgment. abatement that has been found against him ; and it has been repeatedly decided that he is entitled to the same privilege after judg- ment has been given against him on a plea of autrefois acquit. Rex v. Vander- comb and Abbott, 2 Leach, 708 ; 2 East, P. C. 519 ; and Rex v. Coogan, 1 Leach, 448. It is said and truly, that this is done in favorem vital ; but how are those words to be construed ? Not as confining the rule to cases of actual life and death, because the privilege has always been extended to all felonies, clergyable as well as capital ; but as applying it to all cases where the punishment con- sequent on conviction is severe. Now there are many misdemeanors which are much more severely punished than some clergyable felonies, and the present may fairly be considered as among the num- ber ; the sense and justice, therefore, is that the rule of practice in misdemeanors should follow that in felonies, instead of being assimilated to that in civil cases, where the defendant has originally the privilege of putting as many pleas on the record as he chooses. The cases already cited of Eichorn v. Le Mailre, 2 Wilson, 367, and Bowen v. Skapcott, 1 East, 542, are authorities to show that when the plaintiff has judgment on a demurrer to a plea in abatement, the defendant is at liberty to plead over, and for this con- clusive reason, that " every man shall not be presumed to know the matter of law, which he leaves to the judgment of the court." But that reasoning applies equally to pleas in bar, and applies also peculiarly to the present case. So there are cases of pleas to the jurisdiction, which cannot strictly be called pleas in abatement, be- cause they go in bar of the whole proceed- ing, where the judgment on demurrer is only judgment oirespondeas ouster. In Rex v. Johnson, 6 East, 583, the defendant had judgment oirespondeas ouster after a plea to the jurisdiction of all the courts in Eng- land overruled on demurrer ; and that was in substance and effect a plea in bar ; and in Rex v. The Earl of Devon, 11 State Trials, 1354 ; Tremayne, P. C. 188 ; 8 East, 110, ante, 325, the same rule seems to have been acted on. It is said that this 29* plea resembles those of autrefois convict and pardon, and that as the judgment on demurrer to those pleas is final, it must be final here also. But there is a plain and important distinction ; for by pleading a conviction or a pardon the part}' necessarily confesses his guilt, and therefore if he fails to establish a legal bar to the indictment, the judgment must of course be final, be- cause there is then no issue of fact to try. A plea of acquittal, on the contrary, in- cludes a denial of the party's guilt ; and if by a technical error in pleading, which the defendant cannot be supposed to know of or to be able to prevent, he has lost his defence in law, it seems but just that he should resort to his defence in fact, and that he should at least have the chance of a trial, before he receives sentence and punishment. Lord Holt, it must be ad- mitted, declared in Regina v. Goddard, 2 Lord Raymond, 920, " a man cannot plead over in any case but treason, or felony, and not in case of a misdemeanor ; " that was, however, an extra-judicial dictum, for there was no question of pleading over then before the court ; and it was un- doubtedly incorrect in some degree, be- cause, even in cases of misdemeanor, it is quite plain that a man may plead over, after judgment on demurrer to a plea in abatement. Unless, therefore, a man is to be presumed guilty, and punished as guilty, because his legal defence is destroyed by a technical error, although his plea, which the demurrer admits to be true in fact, contains no admission of his guilt, but un- equivocally denies it; the judgment in this case cannot be final, and the defend- ant is now entitled to plead de novo. The court took time to consider of their judgment, which was thus delivered by Abbott, C. J. This case originally came before the court on a demurrer to a plea of autrefois acquit, and after argu- ment the court held the plea to be bad. It has again come before the court in the present term, in order to its being de- cided what judgment ought to be given, whether judgment that the defendant do answer over, or final judgment. The in- dictment is for a misdemeanor in keeping a common gaming house, and the demurrer 342 LEADING CRIMINAL CASES. Indictment — Demurrer — Respondeat Ouster — Pinal Judgment. concludes with a prayer that the defend- ant do answer over to the indictment. The court, however, is not bound by the prayer with which any part of the plead- ings in bar may conclude, but is to give such judgment on the plea in bar as by law ought to bo given. This was settled after argument and deliberation in the case of Le Bret v. Papillon, 4 East, 502, and confirmed afterwards by the case of Rex v. Shakespeare, 10 East, 83. If the demurrer in the present case had con- cluded with a prayer of judgment that the defendant be convicted, still the court would only have given a judgment to an- swer over, if that Jiad been by law the proper judgment. We are, therefore, to consider the question as a matter of law, entirely independent of the particular prayer that has been put upon the record. The plea is a plea, not in abatement, but in bar. The distinction between those pleas in civil actions is well known. If a plea in abatement is held bad on demurrer, the judgment is that the defendant do answer over ; but if a plea in bar is held bad on demurrer, the judgment is general against the defendant; for the general rule, in civil actions at least, is, that a de- fendant is not to plead a second plea in bar, after the first has been determined against him. If he might do this, he might also plead a third, a fourth, and so on, and there would never be an end to the pro- ceedings. It is to be seen whether this rule applies also to an indictment for a misdemeanor. Another rule in civil ac- tions is, that if issue is joined on a plea in abatement, and a verdict is found against the defendant, the jury who find the ver- dict assess the damages also, and the judg- ment recovered against the defendant is final, no further plea being allowed. The same rule applies to a plea in abatement to an indictment for a misdemeanor, if issue is joined thereon and found against the defendant. This was decided by the court in the case of Rex v. Gibson, 8 East, 107. In this respect, therefore, the anal- ogy between civil actions and indictments for misdemeanors is established by express decisions ; but in felonies the rule is other- wise. " If a man plead any plea to an in- dictment or appeal of felony, that does not confess the felony, he shall yet plead over to the felony, in favorem vita ; and that pleading over to the felony is neither a waiver of his special plea, nor makes his plea insufficient for doubleness. And, therefore, if he pleads any matter of fact to the writ or indictment, or pleads autre- fois convict, or autrefois acquit, he shall plead over to the felony ; and although he doth it not upon his plea, but his plea be found or tried against him, yet he shall not be thereby convict without pleading to the felony, and trial thereupon." This is the first paragraph in the 33d chapter of the second book of Lord Hale's Pleas of the Crown. The same learned author afterwards proceeds to speak of this sub- ject in several passages, which I shall men- tion, as I think them material to our de- cision of this case. He says, that if he plead a plea that confesses the fact, as a release in an appeal, in his opinion he may, if he please, plead over to the felony, not guilty ; and, accordingly, he says it was held by Markham, in 7 Edward 4, 15 a, though he refers to two later authorities to the contrary. He proceeds, if a man pleads the king's pardon, he shall not need to plead over to the felony, because it suits not with his plea ; and yet, if the pardon upon a demurrer, or upon advise- ment of the court, be adjudged insuf- ficient, the party shall not be convict, but shall be put to plead to the felony, and be tried for it ; the pleading of the pardon is a kind of confession of the fact ; but yet, in favorem vita;, the party shall be put to answer the felony. The reason of the rule in these cases is expressly mentioned by that learned author, and repeated by all other writers on the subject; it is in favor of life. And these passages also show that there is not any distinction sub- sisting between pleas in cases of felony which contain an admission of guilt, and those which import a denial of it ; but the rule is the same in both cases, because the reason extends to both alike. It is well known that there is no felony at common law, except petty larceny, upon which judgment of death may not be given ; nor „t.:„u l. LEADING CRIMINAL CASES. 343 Indictment — Demurrer — Respondeat Ouster — Final Judgment. rnent can be given ; and, therefore, the reason 6f the rule will not apply to the case of a misdemeanor. If the reason does not apply, the rule ought not to be ex- tended to misdemeanors. Accordingly, in the second volume of Lord Raymond's Reports, page 92*1, Lord Chief Justice Holt plainly declared his opinion to be, that a man could not plead over in any case except treason or felony, and not in case of a misdemeanor. It is true that this point was not then in judgment before the court, but nevertheless the opinion of so great a judge is entitled to very great respect. The only case which is supposed' to be a decision in favor of the present, is that of the Earl of Devonshire, which is to. be found in Howell's State Trials, 1353. I should be sorry to be thought to consider that case as an authority for any thing ; but upon examination it will not be found applicable to the present question. The plea of the Earl was not properly a plea in bar, for he pleaded that no peer of parliament could be called upon to answer before any court inferior to the court of parliament, for any misdemeanor during the sitting of parliament, or the usual time before or after a prorogation ; that the in- formation was filed during the time of privilege ; and he concluded by praying judgment whether the court would or ought to take cognizance of the plea afore- said, that is of the information, during the usual time of privilege. Upon this very special plea, which was in the nature of a temporary plea to the jurisdiction, sup- posing the privilege to be disallowed, the proper, or at least the most lenient judg- ment would be that the Earl should answer to the information. That was the judg- ment in fact given. But that case cannot be considered as an authority upon the point in question ; and as the reason of the rule in cases of felony does not apply to cases of misdemeanor, and as it has been de- cided that the rule in civil actions does apply to cases of misdemeanor, where is- sue is joined on a plea in abatement, we are all of opinion that the rule in civil ac- tions, and not the rule in cases of felony, applies to the present case, and, conse- quently, that the judgment against this defendant should be final, and not that he should answer over. And from the very recent case of Re- gina v. Bird and Wife, 2 Eng. Law and Eq. R. 530, note, in 1851, it appears that such is the settled law of England. The indictment there was for a misdemeanor, an assault with intent to do grievous bodily harm ; a plea of autrefois acquit had been decided against the prisoners, and they were sentenced without any trial upon the merits. Martin, B., however, who sen- tenced the prisoners, is reported to have said to the defendants : " I feel it to be a great hardship that you should be punished without a trial, and with no opportunity of answering or explaining the charge laid against you in the indictment. I cannot but feel that you stand in the condition of persons whose case has not been heard." But as the point of law was believed to be clear, the judgment was final, and he did not acquiesce in the application for a new trial. Suoh is the common law of England. But in America a more indulgent rule pre- vails; and here it has been frequently ruled in such cases, that the defendant may answer over. The earliest reported case was Commonwealth v. Goddard, 13 Massachusetts, 455, in 1816. That was an indictment, for an assault and battery, to which the defendant pleaded a former conviction. The government demurred to th^ plea in bar, inter alia, because it did . not also plead over to the charge ; and 2 Hale, P. C. 355, and Tremayne, P. C. 16, 3 Coke's Institutes, 131, were cited as authorities that such a conclusion was necessary. But the court said, none of us recollect this form of pleading in this country, and if it was ever required, it has gone into disuse. When the plea is' found against the defendant, in this coun- try, he will be put to plead again to the indictment, and the trial will proceed as if no previous proceedings had passed, and the plea in bar was held good. But even this case cannot be considered as fully de- termining the precise point that a defend- ant has a right to answer over, when his plea in bar is adjudged bad, since the only point necessarily involved in the case was, whether the plea in bar was open to de- 344 LEADING CRIMINAL CASES. Indictment— Demurrer— Respondeat Ouster — Final Judgment. murror because it did conclude with a plea to the felony as well as in bar. But even in England, where the strict rule before alluded to prevails, a plea like that in Commonwealth v. Goddard, is not subject to demurrer for want of pleading over to the felony itself. Orbell v. Ward, Carthew, 56. But the practice in Massachusetts is believed to have conformed to the intima- tions thrown out in Commonwealth v. God- dard, and a defendant is generally allowed there to plead not guilty if his plea in bar is adjudged insufficient. Elsewhere the right so to do has been positively asserted. In Barge v. Commonwealth, 3 Penrose & Watts, 262, the Supreme Court of Penn- sylvania in 1831 declared that the same rule applied to pleas in bar as to pleas in abatement, and that if either were found bad on a matter of law, the proper judg- ment to be rendered is a respondeat ouster, and that this rule applies alike to misde- meanors and felonies. The indictment in that case was for fornication and bastardy. The plea of a former acquittal was found against the defendant on an issue to the court of nul tiel record. A plea of not guilty had been put in by the defendant at the same time as the plea in bar, but the court below refused to allow a trial upon it, and pronounced judgment and sentence. This was, however, reversed on error, Gib- son, C. J. saying : " No adjudged case sup- ports the doctrine of Lord Holt in The Queen v. Goddard, that a defendant can plead over but in treason or felony ; nor has it to that extent been adopted by any elementary writer but Lord Hale, who, of course, had not in view a distinction pres- ently to be mentioned, which has sprung up since his day. Hawkins, after noticing the defendant's privilege in felony says, that in this respect an appeal or indict- ment differs from an appeal of mayhem, and from all other civil actions except cer- tain writs of assize ; for it seems to be an established rule, he adds, that in appeals of mayhem, and all other civil actions, those above named only excepted, if a plea in abatement, triable by the country, be found against the defendant, he shall not after- wards be suffered to plead over any new matter, but final judgment shall be given against him. Book 2, ch. 23, § 128. He is certainly for restricting the judgment of respondeat ouster to cases of felony, if the plea in abatement or bar has been deter- mined against the defendant on a matter of fact ; but nothing is said by him to affect the right of the defendant to a like judg- ment in cases of misdemeanor, or where such a plea has been determined against him on matter of law. Mr. Starkie thinks a defendant ought, on principle, to be concluded even in felony, where facts ne- cessary to constitute guilt have been ad- mitted by him on demurrer. Starkie, Crim. PI. 348. Mr. Chitty adopts the principle of Lord Holt, but in referring to The Queen v. Goddard, expresses a doubt of its authority. Chitty, Crim. Law, 461, note. Lord Hale, in his Pleas of the Crown, 248, 255, 256, says, that judgment of respondeat ouster is in favorem vitm ; whence an inference that it is an indul- gence, and peculiar to capital cases ; yet an undoubted practice has sprung up since his time, by which, in cases of misde- meanor, the defendant has judgment of respondeat ouster upon an adverse deter- mination of his plea in abatement in mat- ter of law. This stops short of the rule in felony, by which no plea, whether in abatement or in bar, or whether determin- able as a matter pf law or of fact, precludes the defendant from the benefit of the same judgment. But it is well-settled by author- ities collected in Starkie's Criminal Plead- ing, 436, and Chitty's Criminal Law, 451, that if a plea in abatement be determined against the defendant on demurrer, the judgment is that he answer over ; and why not if a special plea in bar be thus deter- mined, provided it contain no confession of facts that constitute guilt ? The differ- ence between the effect of a verdict and a demurrer, in the determination of a plea in abatement, arises from the presumption the law makes, that every plea which is found to be false in fact, was known to be so, by him who pleaded it, and he is con- cluded for having pleaded false ; but he is not presumed to have known the matter of law which he left to the court, and is consequently not to be concluded by the determination nf it. OhiUv, Oim. Law. LEADING CRIMINAL CASES. 345 Indictment — Demurrer — Respondeat Ouster — Final Judgment. 451. Nor is it sufficient to see, why the same just and salutary discrimination should not be made in respect to the de- termination of a special plea in bar. Whether the defendant has already had a verdict of acquittal, is a fact of which he was competent to judge ; but whether it were on a sufficient indictment, is a matter which he leaves to the court, and is pre- sumed for that reason not to know, so that consistently with the principle indicated by Mr. Chitty, he may at the same time re- serve the benefit of his plea of not guilty. But it seems that in The King v. Gibson, 8 East, 112, Lord Ellenborough has said, that if persons indicted of misdemeanors, had been considered entitled to the privi- lege of pleading double as in felony, there would have been many instances of it in the books. The argument, then, is found at last to rest upon a technical rule of pleading which, having been abolished in civil cases, in order to allow a defendant as many pleas as justice may require, when property to the value of a shilling is involved, is, nevertheless, we are told, to be sternly enforced where the defendant's character, liberty, property, and the peace of his family are jeoparded. No case can be produced where the point was so ruled ; for The King v. Gibson, ante, itself is the case of a plea in abatement, and if it were not, the case is not authority here, nor to be cited as such. The same justice, not to say humanity, which dictated a judgment of respondeat ouster in felony, dictates the same judgment in cases of misdemeanor, where the defendant's special plea in bar has been determined against him on mat- ter of law, and this case, therefore, ought to have been put to the jury on the plea of not guilty. This case was subsequently distinctly affirmed by the same court in 1844, in the case of Fosterv. Commonwealth, 8 Watts & Sergeant, 77, which was an indictment for a libel, a misdemeanor only. The defendant put in a plea in bar, that the party libelled had brought his pri- vate action for damages. This plea was held bad on demurrer, and upon the point what judgment should be entered, Gibson, C. J., said : ' The ruling principle of this part of the case, was settled in Barge v. Commonwealth, 3 Pennsylvania Reports,. 262, in which the proper judgment on an insufficient plea of autrefois acquit in a case of misdemeanor, was held to* be re- spondeat ouster. There, as here, the plea was not in abatement but in bar. The point had shortly before been ruled differ- ently in The King v. Taylor, 3 Barnewall & Cresswell, 512, but we find nothing in the reasons for the decisions sufficiently cogent to' draw us from our principle.' Chief Justice Abbott put the opinion of the court on the common law rule, which pro- hibits, where life is not jeoparded, the use of more pleas in bar than one. True it is that the 4 & 5 Anne, ch. 16, which en- ables a party to plead as many pleas as he has grounds of defence, is expressly confined to civil causes ; yet the judges have allowed the rule in felony and trea- son without the authority of a statute, so far as to allow the prisoner to plead over after an insufficient plea in bar. And it seems the exception extends to cases in which, though the judgment is capital, the felony is clergyable. According to I^r. Chitty's Criminal Law, vol. 1, p. 434, though it does not extend to misdemean- ors as a matter of right, yet it is in the discretion of the court to allow him still to plead not guilty ; and this, he says, will be done where the punishment is severe. Listening to the voice, not of humanity, but of justice, we have carried this discretion a single step further, by applying it to all cases, without regard to the punishment, in which the plea contains no confession of facts which constitute guilt." See also, Him v. The State, 1 Ohio State Reports, 16. Thus it will appear there is a direct conflict of decisions upon this subject, but reason and analogy seem decidedly to support the more lenient rule of the American cases. E. II. B. 346 LEADING CRIMINAL CASES. Indictment — Name of Prosecutor — Hale Idem, sonans. Regina v. Davis. 1 April 26, 1851. Indictment — Name of Prosecutor — Rule Idem sonans. Where an indictment for larceny described the prosecutor as Darius C, and the prosecutor in evidence stated that his name was Trius C. : — Meld, that it was a question of fact for the jury, and not of law for the court, whether the two words were idem sonantia. The following is the substance of a case stated by the Court of Quarter Sessions for the county of Dorset: — The prisoner, William Davis, was tried, at the Quarter Sessions for the county of Dorset, on the 31st of December, 1850, on an indictment which, in one count, charged him with stealing, and in another with feloniously receiving, knowing them to be stolen, certain goods and chattels, the property of " Darius " Christopher. On the trial, the prosecutor, Christopher, being asked what was his Christian name, said, " Trius." The counsel for the prisoner objected- that the property was laid in the wrong person. The court overruled the objection, holding that according to the rule of law as to idem sonans, the proof was sufficient, as Trius and Darius, when pronounced, sounded the same. The prisoner was found guilty on the second count. The question for the court was, Are the words " Trius " and " Darius " pronounced so as to produce the same sound ? If so, the conviction was to stand. If not, the prisoner was to be entitled to an acquittal. The case was sent back for the chairman of sessions to state whether it was left to the jury to decide " if the two names sound alike, so as to designate the prosecutor and no one else, distinguish- ing him from all others." The chairman then stated, " I beg to state that, on my laying down the rule as to names being idem sonantia, and the court being of opinion that the names Darius (pronounced in the Dorset dialect D'rius) and Trius sounded alike, the case proceeded without its being either expressly or substantially left to the jury to decide as to the question of the names sounding alike ; but the jury found their verdict upon the facts of the case, and the motion of counsel was in arrest of judgment." i 2 Denison, C. C. 231 ; 15 Jurist, 546 ; 4 Eng. Law and Eq. R. 564 ; 5 Cox, C. C 237. LEADING CKIMINAL CASES. 347 Burden of Proof — Reasonable Doubts. Lord Campbell, C. J. This case was sent back, in order that it might be stated whether it was left to the jury to decide on the identity of the sound of the words " Darius " and " Trius." The chairman of the Court of Quarter Sessions in answer says, " I beg to state that on my laying down the rule as to names being idem sonantia, and the court being of opinion that the names Darius (pronounced in the Dorset dialect D'rius) and Trius sounded alike, the case proceeded without its being expressly or substantially left to the jury to decide as to the question of the names sounding alike." It seems to us quite clear that the conviction must be quashed. If two names spelt differently must necessarily sound the same, the judge, as a matter of law, may say that they are the same. But neither the Court of Quarter Sessions nor this court can be justified in taking upon themselves to say that in point of law Darius and Trius have the same. sound. The rest of the court concurred. Conviction quashed. In this case, as reported in 5 Cox, C. C. are idem sonantia. The objection is said 237, Lord Campbell, C. J., said: This, to have been taken in arrest of judgment; conviction must be reversed. If it is put but I never heard of such a ground for as a matter of law, it is quite impossible arresting the judgment since the great case for this court to say that the two words of Slradling v. Styles. Commonwealth v. James McKie. 1 March Term, 1854. Burden of Proof — Reasonable Doubts. If the defence to an indictment for an assault and battery be a justification or excuse arising out of the transaction itself, such as a prior assault, the burden of proving such defence is not shifted upon the defendant by mere proof of the blow, even with a dangerous weapon. In such case if the jury have reasonable doubts whether the blow was given under such circumstances as amount to a justification in law, they ought not to convict. In any criminal charge, if the defendant relies upon no separate, distinct, and independent fact, but confines his defence to the original transaction on which the charge is founded, with its accompanying circumstances, the burden of proof never shifts, but remains upon the government throughout the whole case to prove the act a criminal one. The defendant was tried and convicted in the Municipal Court, 1 ,1 Gray, (Massachusetts,) 61. 348 LEADING CKIMINAL CASES. Burden of Proof— Reasonable Doubts. before Perkins, J., who signed the following bill of exceptions: " This was an indictment for an assault and battery on William O. Eaton with a dangerous weapon. Evidence was offered by the government and also by the defendant. This evidence tended to show that the defendant struck Eaton with a dangerous weapon, in the manner charged in the indictment, and also that Eaton had spit in the face of the defendant in a public place, immediately before the striking. On this evidence, the defendant contended that he was justified in what he did to Eaton, by the act of Eaton in spitting in his face. No question was made, or instruction requested, as to the sufficiency of this as a justification in point of law, if made out. " The defendant asked the court to instruct the jury, that if, on all the evidence, they were satisfied of the beating, but were left in reasonable doubt whether the beating was justifiable or not, they should acquit the prisoner. But the court instructed the jury that the burden of proof was on the government to satisfy the jury that the defendant did strike Eaton with a dangerous weapon, in the manner alleged in the indictment, and that if the government failed in this, they should acquit the prisoner ; but that if this was proved beyond a reasonable doubt, the burden was then on the defendant, to satisfy the jury of the justification, to wit, the spitting in the face of the defendant, which was the only justification contended for or relied upon | and if the jury were not satisfied of the fact relied upon for a justification, but were satisfied that the government had made out the allegations in the indictment, their verdict must be against the defendant. To these instructions the defendant excepts." This case was argued at March term, 1853, by R. H. Dana, Jr., for the defendant, and R. Choate, (attorney-general,) for the Common- wealth. Bigelow, J. Upon the facts stated in the bill of exceptions, it is difficult to understand how the question of justification of the assault alleged could have arisen at the trial of this cause. The use of a weapon, dangerous to life and limb, to repel such an assault as was shown to have been committed on the defendant by the prosecutor, was unreasonable and wholly disproportionate to the exigency, and could furnish no legal excuse to the defendant. Under the circum- stances as reported, the jury should have been instructed, that the defendant had not encountered the case proved against him by the government, and was liable to be convicted of the offence charged in the indictment. We feel bound to say thus much, lest by silence we might' seem to give sanction to a defence, which appears to have been placed on untenable grounds. The general rule as to the burden of proof in criminal cases is LEADING CRIMINAL CASES. 349 Burden of Proof — Reasonable Doubts. sufficiently familiar. It requires the government to prove beyond a reasonable doubt the offence charged in the indictment, and if the proof fails to establish any of the essential elements necessary to constitute a crime, the defendant is entitled to an acquittal. This results, not only from the well established principle, that the pre- sumption of innocence is to stand until it is overcome by proof, but also from the form of the issue in all criminal cases tried on the merits, which, being always a general denial of the crime charged, necessarily imposes on the government the burden of showing affirm- atively the existence of every material fact or ingredient, which the law requires in order to constitute an offence. If the act charged is justifiable or excusable, no criminal act has been committed, and the allegations in the indictment are not proved. And this makes a broad distinction in the application of the rule of the burden of proof to civil and criminal cases. In the former, matters of justifi- cation or excuse must be specially pleaded in order to be shown in evidence, and the defendant is therefore, by the form of his plea, obliged to aver an affirmative, and thereby to assume the burden of establishing it by proof ; while in the latter, all such matters are open under the general issue, and the affirmative, namely, proof of the crime charged, remains in all stages of the case upon the govern- ment. In the application of these familiar principles to particular cases, many nice distinctions have arisen, which it is unnecessary now to consider ; because we are all of opinion that the case at bar falls clearly within the general rule. However the rule may be in cases where the defendant sets up,, in answer to a criminal charge, some separate, distinct and independent fact or series of facts, not immedi- ately connected with and growing out of the transaction on which the criminal charge is founded, there can be no doubt that in a case like the present, the burden of proof remains on the government throughout, to satisfy the jury of the guilt of the defendant. It appears by the evidence, as stated in the bill of exceptions, that the justification, upon which the defendant relied, was disclosed partly by the testimony introduced by the government and in part by evidence offered by the defendant ; and that it related to and grew out of the transaction or res gesta, which constituted the alleged criminal act. The defendant did not set up any distinct, independent fact in defence of the charge ; he neither alleged, nor assumed to prove any thing, aside or out of the case on the part of the government; but he contended, taking the facts and circumstances, as proved by the evidence on both sides, constituting the transaction itself on which the case for the prosecution rested, that he was not shown to be guilty, because they did not prove beyond a reasonable doubt that 30 350 LEADING CRIMINAL CASES. Burden of Proof — Reasonable Doubts. he had committed the offence laid to his charge. An assault and battery consists in the unlawful and unjustifiable use of force and violence upon the person of another, however slight. If justifiable, it is not an assault and battery. 1 Hawk. ch. 62, § 2 ; \ Russ. on Crimes, (7th Amer. ed.) 750; 3 Bl. Com. 121; Bac Ab. Assault and Battery, B ; 5 Dane Ab. 584 ; Commonwealth v. Clark, 2 Met. 24. Whether the act, in any particular case, is an assault and battery, or a gentle imposition of hands, or a proper application of force, depends upon the question whether there was justifiable cause. 2 Met. 25. If therefore the evidence fails to show the act to have been unjustifiable, or leaves that question in doubt, the criminal act is not proved, and the party charged is entitled to an acquittal. To illus- trate this ; it is clearly settled, that when an injury to the person is accidental, and the party defendant is without fault, it will not amount to an assault and battery. Rose. Crim. Ev. 289. Now in a case of this sort, if the evidence offered by the government leaves it doubtful whether the injury was the result of accident or design, there can be no question of the right of the defendant to an acquit- tal, because it is left doubtful whether any criminal act was commit- ted. But can the government, in such a case, on proving simply the injury to the person, rest their case, and call on the defendant to assume the burden of proof and satisfy the jury that it was acci- dental, or else submit to a conviction ? If so, then a criminal charge can always be shown by proving part of a transaction, and the burden of proof can be shifted upon the defendant, by a careful management of\ the case on the part of the government, so as to withhold that part of the proof which may bear in his favor. But further ; the rule of the burden of proof cannot be made to depend upon the order of proof, or upon the particular mode in which the evidence in the case is introduced. It can make no difference, in this respect, whether the evidence comes from one party or the other. In the case supposed, if it is left in doubt, on the whole evidence, whether the act was the result of accident or design, then the criminal charge is left in doubt. Suppose a case, where all -the testimony comes from the side of the prosecution. The defendant has a right to say that upon the proof, so introduced, no case is made against him, because there is left in doubt one of the essential elements of the offence charged, namely, the wrongful, unjustifiable, unlawful intent. The same rule must apply where the evidence comes from both sides, but relates solely to the original transaction constituting the alleged criminal act, and forming part of the res gesta. Even in the case of homicide, where a stricter rule has been held LEADING CRIMINAL CASES. 351 Burden of Proof — Reasonable Doubts. as to the burden of proof than in other criminal cases, upon peculiar reasons applicable to that offence alone, it is conceded that the burden is not shifted by proof of a voluntary killing, where there is excuse or justification apparent on the proof offered in support of the prosecution, or arising out of the circumstances attending the homicide. Commonwealth v. York, 9 Met. 116. Commonwealth v. Webster, 5 Cush. 305. There may be cases where a defendant relies on some distinct, substantive ground of defence to a criminal charge, not necessarily connected with the transaction on which the indictment is founded, (such as insanity, for instance,) in which the burden of proof is shifted upon the defendant. But in cases like the present, (and we do not intend to express an opinion beyond the precise case before us,) where the defendant sets up no separate independent fact in answer to a criminal charge, but confines his defence to the original transaction charged as criminal, with its accompanying circum- stances, the burden of proof does not change, but remains upon the government to satisfy the jury that the act was unjustifiable and unlawful. Exceptions sustained. A strange confusion has existed in some minds on the subject of the burden of proof, both in civil and criminal cases. It is not unfrequently confounded with prima facie evidence, or a prima facie case, and the existence and establishment of such a case, has often been thought to cast the burden of proof upon the adverse party. In no instance, perhaps, is this more strik- ingly illustrated than in actions upon prom- issory notes, in which it has been fre- quently declared, both in elementary trea- tises and in deliberate adjudications, that the production and proof of such a note, if the maker relies alone upon a want of original consideration, changes the burden of proof upon him, and compels him to show affirmatively, and satisfy the jury upon a preponderance of the testimony, that there was no original consideration for the note. Thus, it is said in Story on Promissory Notes, § 181, that " it is wholly unnecessary to establish that a promissory note was given for a consideration ; and the burden of proof rests upon the other party, to establish the contrary, and to re- but the presumption of validity and value, which the law raises for the protection and support of negotiable paper. This, however, does not dispense with the ex- istence of a consideration, but it only shifts the burden of proof from the plaintiff to the defendant." See, also, 2 Greenleaf, Ev. § 172, using the same language ; Story on Bills, § 178 ; Sawyer v. Vavghan, 25 Maine, 337; Greer v. George, 3 Eng- lish, 131. But when we remember the definition of burden of proof, which is simply the duty of proving the facts in dis- pute on an issue between the parties, — there is reason to believe that the phrase has been loosely used in these and many other cases, or that an erroneous rule is there laid down. And if we understand the term, as defined by Mr. Baron Parke, in 1 Curteis, 640, that the meaning of the term onus probandi is, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him, we are led to the Same conclu- sion. The production of a note written by the defendant, containing the words "value received," is equivalent to prov- ing an admission of his, that there was an original consideration for the note; nothing more. It is prima facie evidence of a con- sideration, sufficient, if not rebutted, to maintain the plaintiff's case. But to hold 352 LEADING CKIMINAL CASES. Bufden of Proof — Seasonable Doubts. that such an admission of a consideration in the note changes the burden of proof, and compels the defendant to assume it, would be to hold that such an admission, when made orally, and when not contained in the instrument, would have the same effect ; an absurdity to which no one, as we are aware, has yet arrived. This dis- tinction between a prima facie case and the burden of proof, has been frequently recognized in the adjudications of the Su- preme Judicial Court of Massachusetts, and was applied in a late case to a prom- issory note, in which it was held, that where want of consideration is the defence to a note, and evidence is offered by the plaintiff in the affirmative, (as, by the ad- mission of " value received " in the note itself,) and by the defendant in the negative, the burden of proof is upon the plaintiff, throughout the whole case, to satisfy the jury, upon the whole evidence, that there was a consideration. Delano v. Barllett, 6 Cushing, 364. And this is but the legitimate consequence of the rule laid down by the same court in Powers v. Rus- sell, 13 Pickering, 69, that wherever the proof upon both sides applies to the affir- mative or negative, of one and the same issue, or proposition of fact, the party whose case requires the proof of that fact, has all along the burden of proof. It does not shift, though the weight in either scale may at times preponderate. And the same rule was distinctly applied by the same court in Tourtellot v. Rosebrooh, 11 Met- calf, 460, where it was held; that in an ac- tion for damages, caused by a fire commu- nicated to the plaintiff's land from a coal- pit lawfully set on fire by the defendant on his own land, the burden of proving the defendant's negligence is to the end upon the plaintiff; and prim.fi facie proof of the defendant's negligence, does not throw upon him the burden of disproving it. The action itself in such a case is founded on a charge of negligence, — that is the gist of the action ; if the jury doubt as to the fact of negligence, they cannot find for the plaintiff, and, consequently, the bur- den of proof, is, throughout, on him. So, in an action of assumpsit for goods sold and delivered, it being admitted that some credit was given, the burden is on the plaintiff to prove that the time of credit expired before the action was brought, and the burden does not shift merely be- cause he offers evidence which prima facie proves that fact. If the jury have reason- able doubts of that fact upon the whole evidence, the plaintiff fails. Morrison v. Clark, 7 Cushing, 213. And see Sawyer v. Spofford, 4 Cushing, 598. So in an ac- tion for an injury caused by the negligent driving of the defendant, if the plaintiff prove the defendant's negligence, and the defendant relies upon want of ordinary care in the plaintiff, the burden of proof is not shifted upon him to prove such want of ordinary care ; but it remains to the end upon the plaintiff to establish that fact to the satisfaction of the jury. Lane v. Crom- bie, 12 Pickering, 177; and the same rule exists in actions against towns for defect in a highway. Adams v. Carlisle, 21 Picker- ing, 146. With this understanding as to the burden of proof in civil cases, it is easy to arrive at the correct rule in criminal cases. And here also the burden of proof is throughout on the government, to make out the whole case ; and when a prima) facie case is established, the burden of proof is not thereby shifted upon the de- fendant, and he is not bound to restore himself to that presumption of innocence in which he was at the commencement of the trial. Making out a prima facie case, does not necessarily or usually change the burden of proof. A primd facie case is that amount of evidence which would be sufficient to counterbalance the general presumption of innocence, and warrant a conviction, if not encountered and con- trolled by evidence tending to contradict it, and render it improbable, or to prove other facts inconsistent with it. But the establishment of a primd facie case does not take away from a defendant the pre- sumption of innocence, though it may, in the opinion of the jury, be such as to re- but and control it; but the presumption remains in aid of any other proofs offered by the defendant to rebut the prosecutor's primd facie case. The jury even are not bound to find a verdict of guilty upon a LEADING CRIMINAL CASES. 353 Burden of Proof — Reasonable Doubts. primd facie case, even if no rebutting tes- timony is offered by the defendant. Swal- low v. The State, 22 Alabama, 20. For such evidence is not conclusive, as a mat- ter of law, although it may be sufficient, if not rebutted before the jury. It would, therefore, be manifestly erroneous for a judge to instruct the jury, that if a defend- ant omitted to avail himself of evidence •within his reach, by which he might have repelled that which was offered to his pre- judice, his failure to do so supplied a strong presumption of his guilt. Doty v. The State, 7 Blackford, 427. For such a charge imports, that the burden of proving inno- cence devolves upon a prisoner after a prima, facie case of his guilt is established. If, therefore, the defendant, upon his own evidence, and a fortiori upon the evidence for the government, creates a reasonable doubt of his guilt, the prosecution fails, and the burden of proof is not discharged ; since the defendant is all along presumed innocent, unless upon the whole evidence the jury are satisfied that he is guilty. See Commonwealth v. Kimball, 24 Pickering, 373; Commonwealth v. Dana, 2 Metcalf, 340. This principle is distinctly brought out in the excellent judgment of Bigelow, J., in our leading case of Commonwealth v. McKie, and the illustration there sug- gested, viz : the case of an accidental as- sault and battery, recently occurred in the District Court of Massachusetts. United States v. Henry Mc Clare, 7 Boston Law Reporter, (N. S.) 439, December, 1854. The defendant was there indicted for an assault. The blow was admitted, but it was claimed by the defendant to have been accidental, and that the prosecution must satisfy the jury it was intentional. Evi- dence was offered on both sides bearing upon the question of intent. The court (Sprague, J.,) ruled, that " the govern- ment must prove the criminal intent with which the blow was given, as well as the blow itself. And if the jury were not satis- fied, beyond a reasonable doubt, that the act was accompanied with a criminal in- tent, the defendant was entitled to an ac- quittal." And when the facts relied upon by the defendant, to show that he is not guilty, are connected with, and form a 30* part of, the res gesta, a part of the same transaction relied upon by the government as establishing guilt, as in the foregoing case, and in Commonwealth v. McKie, the justice and propriety of the rule there laid down is entirely obvious. For in every crim- inal charge, two things are necessarily in- volved, both of which it is equally incum- bent upon the prosecutor to establish ; first, the overt act, and, second, the crim- inal intent. Proof of one without the other will never suffice. The mere exist- ence of the overt act charged does not necessarily make it a crime. The blow complained of in a charge of an assault and battery, may be unintentional, as in United Slates v. Mc Clare; or, if inten- tional, it may be in self-defence, or in the execution of a legal duty. In charging any crime, the government charges a criminal intent, and must prove it. Prov- ing a blow may, in some cases, be of itself sufficient evidence of a criminal intent, but such intent may be repelled by the circumstances of the case. If, on all the evidence, the jury are left in reasonable doubt as to the intent of the defendant, they cannot convict him of the crime, for the crime is not proved. The overt act is proved to be sure, but the character of the act, whether criminal or not, is left in doubt. Nothing can be clearer. And why may not this reasoning apply to all crimi- nal prosecutions ? If the defence to an indictment is insanity, is not the burden of proof, (using the term as before defined in reference to civil cases,) upon the government to satisfy the jury that the prisoner was sane when he committed the act ? And if the jury have reasonable doubts of his sanity, ought they, can they, with that doubt remaining, convict him of guilt ? In The Stale v. Mar- ler, 2 Alabama, 43, it was held that if the jury entertain a reasonable doubt of the defendant's sanity, he ought to be acquitted. Doubts of the defendant's sanity amount to doubts of the existence of a criminal intent on. his part in the commission of the act ; a failure to prove which, by the prosecution, must always be fatal. To illustrate this by a prosecution for murder ; the defini- tion of that crime, as given by Lord Coke, 354 LEADING CRIMINAL CASES. Burden of Proof— Reasonable Doubts. 3 Inst. 47, and by Blackstone, vol. 4, p. 195, is this: " Murder is when a person of sound memory and discretion, unlaw- fully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, express or implied." And see Hazel's case, 1 Leach, C. C. 383. The fact of soundness of mind is made as an essential condition of the crime as the fact of killing ; and ought not the one to be made out by the prosecution to the same degree of satisfaction as the other ? Again, -where the defence is an alibi, or in other words a mistake in the identity of the person, is not the burden of proof upon the government to establish the identity ? And if that fact is left in doubt,' either upon the testimony for the government alone, or upon that of both parties, how can the jury convict ? Is the defendant bound to show beyond a reason- able doubt that he was not the offender? More especially is this apparent where the doubts of the sanity or identity fairly arise upon the facts and circumstances as proved, and the case as left, by the evi- dence for the government. And it is not easy to see of what materiality it can be, from which party the evidence comes. It is certainly immaterial whether the circum- stances of justification or mitigation are shown from the testimony offered by the prosecution, or by the defendant. Craw- ford v. The Slate, 12 Georgia, 142. That every man is presumed to be sane, until the contrary appears, is unquestionably true, and that this presumption justifies,. and requires a jury to find a man sane, if there is no evidence either way on the subject of sanity or insanity is no less true. But does this presumption of sanity change the burden of proof upon the defendant, and compel him to prove his insanity ? Is this presumption any thing more than one witness in favor of the sanity ; making a prima facie case indeed; a case quite sufficient to decide the question, if not controlled and rebutted by any circumstances or evidence showing insanity. But that, as we have before seen, is a very different question from the burden of proof. What is the rule in regard to other presumptions than that of insanity ? The unexplained possession of stolen property, recently after the theft, for instance, creates a presumption that the possessor committed the larceny ; a presumption warranting a verdict of that fact, if nothing be shown to counteract it. But does that presumption change the burden of proof upon the defendant ? Is it incumbent upon him to satisfy the jury that he did not steal the article ? Is not such a possession mere prima facie evi- dence of guilt, to stand as sufEcient proof of the same, if not explained, but not shifting the burden of proof originally devolving upon the government? See The State v. Merrick, post ; The State v. Bennett, 3 Brevard, 514 ; Jones v. The People, 12 Illinois, 259. So the fabrica- tion of evidence, a flight, or an at- tempt to escape, raises a presumption of guilt, or in other words is evidence of that fact, but no one ever supposed that the burden of proof was thereby shifted upon the defendant to prove himself innocent. The presumption of innocence is always as strong as the presumption of sanity, or any other presumption in the law. Indeed it has been ruled to be stronger, and to overcome even the presumption of life. Sex v. Twyning, 2 Barnewall & Alderson, 385 ; Greensborough v. Underhill, 12 Ver- mont, 604. Why then should it be argued that this presumption of innocence, itself so strong, so cogent, so universal, should be overborne by the presumption of sanity ; and that this latter presumption changes the burden of proving innocence upon the defendant. The cases on this subject no doubt use language implying that the bur- den of proof is upon the defendant to es- tablish insanity, when that is relied upon as a defence. They are collected in a pre- vious note on the subject of " Insanity." But as we understand most of them, they use the words " burden of proof," loosely, meaning thereby that the general presump- tion of sanity is sufficient prima facie evi- dence of thatfact, warranting and requiring such a finding, unless there be sufficient evidence of insanity to counteract the presumption. If they mean more than this, they seem to be not in harmony with the analonies and nrincinles of criminal LEADING CRIMINAL CASES. 355 Burden of Proof — Reasonable Doubts. law in other cases. It is true that in our leading case of Commonwealth v. McKie, it is said, there may be cases, when a defendant relies on some distinct substan- tive ground of defence to a criminal charge, not necessarily connected with the transaction on which the indictment is founded, such as insanity for instance, in which the burden of proof is shifted upon the defendant; but this was put by the learned judge merely hypothetically, and as an illustration, by way of distinction, from the case then before the court, without intending to affirm positively that there was a material distinction between the two cases. It is not impossible that in some civil cases, the burden of proof is on the defendant to prove insanity, and not on the plaintiff to prove sanity. As where to an action on a promissory note, the defendant relies upon insanity, or incompetency to contract, the onus pro- bandi may be on him. But does the same rule apply in criminal cases ? Does not the general issue of "not guilty" in a criminal case deny, and put in issue the defendant's competency to be guilty, as well as any other fact. And even in civil cases the rule is not uniform that the burden of proof is on him who alleges insanity, but the contrary is sometimes true. For in cases on the probate of wills, the burden of proving the sanity and competency of the testator is undoubtedly upon him who offers the will for probate, and who asserts the capacity of the testa- tor. Barry v. Butlin, 1 Curteis, 638 ; 2 Moore, P. C. 480-482; Gerrish v. Nason, 22 Maine, 438 ; Comstock v. Hadlyme, 8 Connecticut, 254; Cilley v. Cilley, 34 Maine, 162; Potts v. House, 10 Georgia, 324 ; Browning v. Budd, 6 Moore, P. C. 430 ; Cramer v. Crambough, 3 Maryland, 491 ; Crowninshield v. Crowninshield, 2 Gray, not yet published, where an excel- lent judgment was given by Thomas, J. In civil cases, unquestionably, if the defendant sets up and relies upon some distinct and independent fact in avoidance of the plaintiff's case, such as payment, release, etc., the burden of proof does shift upon him, and he is bound to maintain and establish his proposition with the same degree of proof as is required of the plaintiff in making out his case. But the distinction between civil and criminal proceedings, in this respect, is very obvious. In the one, the defendant, by his pleading, admits the truth of the charge as laid by the plaintiff, and asserts the existence of independent and different facts in avoid- ance of the plaintiff's case. It is proper therefore, and necessary that the burden of proof should rest upon him, or in other words should shift from the plaintiff to the defendant. As, in an action for a libel, for instance, if the defendant admits the publication, and asserts its truth as a jus- tification, or if in one plea he denies the publication, and in another, asserts its truth, the burden is on him to establish his plea of justification. Sperry v. Wilcox, 1 Metcalf, 267 ; and see Brown v. King, 5 Metcalf, 173. But in an indictment the defendant pleads no special defence of jus- tification or excuse. The only known de- fence is the general issue, which ex vi ter- mini, denies and puts in issue the criminal intent, as well as the overt act. There can be no confession and avoidance of a crim- inal accusation ; every thing is put in issue by the plea of not guilty. It is therefore the duty of the government upon this issue to maintain and prove all the requi- sites of the crime ; the criminal intent and the overt act; for the one is denied as well as the other by the plea. To illus- trate further; in a civil action for an assault and battery, if the defence is that it was done in pursuance of lawful author- ity, and that no more force was used than was necessary, the burden of proof is un- doubtedly upon the defendant to satisfy the jury of that fact. Loring v. Aborn, 4 Cush- ing, 608 ; Hannen v. Edes, 15 Massachu- setts, 347. And if he fails to establish such facts his defence fails. But in case of an indictment for the same assault and bat- tery, as of a parent for chastisement of his son, if the jury are doubtful whether the defendant used more force than was necessary, they ought not to convict. And the like rule should prevail where the defence to an assault is that it was in self-defence, or to prevent a breach of the_ peace, or that it was accidental, or done 356 LEADING CRIMINAL CASES. Burden of Proof — Reasonable Doubts. in an amicable contest, etc. The burden of proof, in such cases, always remain upon the government to establish guilt beyond a reasonable doubt. In civil actions the intent is often immaterial; if an injury be done the plaintiff, it is no defence that it was not intended ; while in criminal cases the intent is always a material ques- tion. The burden of proving the criminal intent is therefore on the government. In this sense therefore ought it to be said, that in a criminal case the burden of proof ever shifts? If there be any exceptions to the rule, the authorities have recognized one in prosecutions for the violation of some statutory law, which forbids certain acts to be generally done, which yet may be law- fully done by certain qualified, or author- ized individuals, as in the game laws, laws relating to the sale of spirituous liquors, etc. The first direct adjudication that the burden of proof shifts in such cases seems not to have been made until 1816 in Rex v. Turner, 5 Maule & Selwyn, 206. That was a prosecution under stat. 5 Anne, ch. 14, § 2, against a carrier for having game in his possession. The conviction averred that defendant possessed none of the statutory qualifications authorizing him to have such game in his possession, but it was there distinctly held that the burden of proof was upon the defendant to prove the affirmative of his qualification and not on the informers to negative it; and on this principle ; that if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative, is to prove it, and not he who avers the negative. This case may be justly termed the' leading case on that side of the question, a§d has given support to subsequent decisions on the subject. But the case itself, espe- cially in the general rule it attempted to lay down, has been not unfrequently doubted. See Elkin v. Janson, 13 Meeson & Welsby, 662. The next case on the subject was in 1824, The Apothecaries' Co. v. Bentley, 1 Ryan & Moody, 159 ; 1 Car- rington & Payne, 538 ; an action against a person for practising as an apothecary with- out a certificate, and it was held that the onus lay on the defendant to prove that he had obtained his certificate. This also has been often relied upon, as establishing the general principle that proof of li- cense is always on the defendant. But when we examine the Apothecaries' Act, 55 George 3, ch. 194, § 21, upon which the case was decided, it will be found that the words of that act itself seem to require that the apothecary must himself prove his license and authority. See Elkin v. Janson, 13 Meeson & Welsby, 662. These two cases have often been followed in America. See The State v. Morrison, 3 Devereux, 299 ; Shearer v. The State, 7 Blackford, 99; Geuing v. The State, 1 McCord, 573 ; Haskill v. The Common- wealth, 3 B. Monroe, 342 ; Wheat v. The State, 6 Missouri, 455; The Stale v. Crowell, 25 Maine, 171; The State v. Foster, 3 Foster, 351 ; The State v. Wood- ward, 34 Maine, 293 ;* The State v. Churchill, 25 Maine, 306 ; Smith v. Joyce, 12 Barbour, 26 ; Schmidt v. The State, 14 Missouri, 137. But these decisions seem to us a departure from correct principle, as they certainly are from the early pre- cedents. The early decisions held, that, ■where the exception was a part of the prohibitory clause itself and not in a sub- sequent, or separate proviso, the existence of the exception, qualification, or author- ity, must not only be alleged, but also proved. And indeed, it is not easy to see why it should be alleged unless it need be proved ; for the allegata and the probata must correspond. It is unquestionably true as a general proposition that the onus probandi is not always on the party who asserts the affirmative of an issue ; for whenever a negative averment is neces- sary to make a pleading good, the onus of proving that averment lies on the party who makes it. Harvey v. Towers, i Eng. Law and Eq. R. 531. Now all the authorities, ancient and modern, English and American, hold to the present day and with much strictness, that where the exception in a statute is in the purview thereof, or in the substantive enacting clause thereof, and not by way of proviso, or in a separate clause, the indictment LEADING CEIMINAL CASES. 357 Burden of Proof — Reasonable Doubts. must in pleading negative the existence of any such exception, qualification, or limi- tation, or the pleading is bad. The allega- tion of a want of license is essential, in pros- ecutions, for doing some act without license. May v. The State, 4 Alabama, 167. Judg- ment will be arrested without it. If the rule above laid down, therefore, is sound, why the departure in modern ca- ses, that though such exception must be averred, it need not be proved. That such was not the ancient rule, a reference to the early. cases will establish. Thus, in Rex v. Jarvis, 1 East, 643, note, 1 Burrow, 148, a prosecution under the game acts, it was held that the want of qual- ification allowed by stat. 22 and 23 Car. 11, ch. 25, must be specially alleged and proved. The case is better reported in 1 East, where the opinion of Lord Mansfield, is given at length. He there says : " If this matter was res integra, and open to be gone into by reasoning at large, yet I should think it necessary for the justices to show that the person convicted was an object of their jurisdiction ; that is, that he had none of the qualifications men- tioned in the statute of Car. 2.. For it is a known distinction that what comes by way of proviso in a statute must be insisted on by way of defence by the party ac- cused ; but where exceptions are in the enacting part of a law, it must appear in the charge that the defendant does not fall within any of them. But in this case I do not think myself at liberty to go into the question, if it were doubtful; for all the cases, from the making of the statute, are uniform in support of the objection. Denison, J., and Foster J., were of the same opinion. This was in 1755. To. the same effect are Rex v. Marriott, 1 Strange, 66 ; Rex v. Sparling, 1 Strange, 497. Such also were the opinions of Lord Kenyon, C. J., and Grose? J., in Rex v. Stone, 1 East, 639. That was also a prosecution under the same statute as Rex v. Jarvis. The information ex- pressly and specifically negatived all the exceptions and qualifications recognized by the statute ; the defendant claimed that he was qualified both in his own and in his wife's right, but produced no evidence of it ; he was adjudged guilty, and fined. Upon certiorari to quash the conviction, Lord Kenyon, C. J., said : " The King v. Jarvis was decided above forty years ago. And in Sir James Burrow's report of that case, it is stated that the evidence of the adjudication ought both of them to be, that the fltefendant has not those qualifica- tions that are specified in the act, or any of them. But it is said to be impossible for the prosecutor to give negative evi- dence of the want of qualification in the defendant ; but I do not see why that may not be done. The legislature only intend- ed to subject persons not having certain qualifications to this summary jurisdiction. The defendant, therefore, must be shown to be such a person. And if Lord Mans- field, Mr. Justice Denison, and Mr. Jus- tice Foster, thought that all this was nec- essary above forty years ago, surely the length of time which has since elapsed, without their decision having been called in question, has not weakened, but rather confirmed, the authority of it. Therefore 1 am of opinion in this case, that evidence ought to have been given of the defend- ant's, want of qualifications mentionedfin the statute." And this is only in analogy with those numerous cases which require the government to prove other negative allegations; such as in prosecutions for coursing deer on another's ground, not having the consent of the owner ; the bur- den of proof is on the proseefution to prove that the defendant did not have such con- sent. Rex v. Allen, 1 Moody, C. C. 154 ; Rex v. Rogers, 2 Campbell, 654. And the like for taking the property of another without his consent. Little v. Thompson, 2 Greenleaf, 228 ; Rex v. Hazy, 2 Car- rington & Payne, 458. But see The State v. Whittier, 21 Maine, 341. So it has been held in prosecutions for peddling goods not of the production or manufac- ture of the United States, the government must prove them to be of foreign manu- facture. Commonwealth v. Samuel, 2 Pick- ering, 103. Other instances of negative averments, which require proof on the part of him who makes the allegation, may be found in Rex v. Hawkins, 10 East, 211, that a defendant had not taken the sacra- 358 LEADING CEIMINAL CASES. Burden of Proof — Reasonable Doubts. ment ; in Powell v. Milburn, 3 Wilson, 355, that a party had not complied with the Uni- formity Act; in Williams v. East India Co. 3 East, 192, that defendant had not given notice, as he was hound to do, of the inflammable nature of certain goods put on board a vessel ; in Elkin v. Jq/ison, 13 Meeson & Welsby, 655, tha#a person accusing another of fraud, in the conceal- ment of facts which he was bound to dis- close, must prove the non-communication of such facts ; in Sissons v. Dixon, 5 Barne- wall & Cresswell, 758, that an allegation that goods were not legally imported must be proved ; in Modwell v. Hedge, 1 Car- rington & Payne, 220, that a theatre was not duly licensed ; in Lord Halifax's case, Buller, N. P. 298, that defendant did not deliver up the rolls of his office ; in Clark v. Lyman, 10 Pickering, 47, that an officer did not make a true return on his process ; in Timson v. Mbution, 3 Cushing, 269, that a person had no license to sell spirituous liquors ; in Barton v. Sutherland, 5 Rich- ardson, 57, that a practising physician had no license. But perhaps the excep- tion as to proof of licenses has become too firmly ingrafted in our jurisprudence to be now removed. The reason of the original decision on the subject was, the extreme difficulty of proving the negative', and the great ease with which the defendant could prove the affirmative. There was some weight in this reason, when applied to the game laws of England, by which originally ten different qualifications for killing game were enumerated in the statute, and the burden of proving that the defendant pos- sessed no one of these ten qualifications was indeed an onerous one. In truth it might be said that evidence on this point was peculiarly and almost exclusively in the possession of the defendant, and that therefore he ought to produce it. Had the rule itself been extended no fur- ther than the reason of it, it would not have led to bo many anomalous decisions. But many tribunals have lost sight of the fact that in many cases, where licenses ex- ist by law to do some act otherwise forbid- den, as selling intoxicating liquors, for example, a record of the license is made, by the authorities who issue it, which rec- ord is always open to the government as well as to the defendant, and therefore that the evidence on this subject is not more peculiarly within the knowledge of the defendant than of the government. In such cases there seems to be no reason why the government should not offer proof of the allegation that the defendant was not licensed, as well as of any other averment in the indictment. Such was the decision in Commonwealth v. Thurlow, 24 Pickering, 374. How fa» the general principles above stated, as to the burden of proof, are con- sistent with the decision in Commonwealth v. York, 9 Metcalf, 93, we shall not at- tempt to discuss. In that important case it was held by the Supreme Court of Mas- sachusetts, that when on a trial for mur- der, the factof killing is proved, and noth- ing further is shown, the presumption of law is, that it was malicious, and an act of murder, and the burden of proving any matter of excuse or exteriuajjpn is shifted upon the defendant. The argu- ments and authorities in favor of this de- ' cision are given in an elaborate judgment by Chief Justice Shaw. See also Com- monwealth v. Webster, 5 Cushing, 296 ; Wharton, Crim. Law, 332 ; Hill's case, 2 Grattan, 594 ; The State v. Turner, Wright, 20 ; Mitchell v. The State, 5 Yerger, 340 ; The State v. Town, Wright, 75. Mr. Jus- tice Wilde, however, dissented, with great force of reason, as Professor Greenleaf thinks ; see 1 Greenleaf, Ev. § 34, note 1, and was of opinion that when facts and circumstances accompanying a homicide are given in evidence, the question whether a crime is murder or manslaughter is to he decided upon 'the evidence, and not upon any presumption from the mere act of killing ; that if there be any such pre*- sumption, it is a presumption of fact, and if the evidence leads to a reasonable doubt whether the presumption be well founded, that doubt will avail in favor of the pris- oner ; that the burden of proof, in every criminal case, is on the Commonwealth, to prove all the material allegations in the indictment ; and if on the whole evidence the jury have a reasonable doubt whether the defendant is euiltv of the crime LEADING CRIMINAL CASES. 359 Burden of Proof — Reasonable Doubts. charged, they are bound to acquit him. See also Coffee v. The Stale, 3 Yerger, 283 ; Untyd States v. Mingo, 7 Boston Law Reporter, 435, for December, 1854, before Curtis, J., and Sprague, J. In that case the defendant killed the deceased •with a dangerous weapon. The evidence was contradictory as to provocation, and as to which was the assailant. The jury were instructed that it was incumbent upon the government to prove a felonious killing, and if upon the whohl evidence the government had failed td(fe,tisfy the jury beyond a reasonable doubt that the killing was felonious, they must acquit. The common presumption of innocence, until one is proved guilty, seems to lead to the same conclusion ; for that presump- tion extends to the whole crime charged against him ; innocent of the overt act, and innocent of the malicious intent ; in- nocent of the whole crime, and innocent of all its parts. How can proof, therefore, of the overt act alone, cast on the defend- ant the burden of proving himself inno- cent of the malice ? The greater includes the less. See further on this subject, Short v. The State, 7 Yerger, 510; McDaniels v. The State, 8 Smedes & Marshall, 401 ; Commonwealth v. Haw- kins, 3 Gray. North American Review, January, 1851, p. 178. But the further discussion of this topic is foreign to the purpose of this note. In conclusion, may it not be safely assumed, that in criminal cases the bur- den of proof never shifts, so long as the defendant grounds his defence on the denial of any essential allegation in the indictment, whether such allegation be an allegation of fact or of law, and whether it be expressed or implied ? Connected with the subject of burden of proof is that of the degree of proof necessary to make out a criminal accusa- tion. The authorities often declare that there is a distinction between civil and criminal cases on this subject; and that while in the former it is only necessary to establish the facts by a preponderance of the testimony, in criminal causes the jury must be satisfied of the guilt beyond a reasonable doubt, before they can convict ; and that these two terms are not synony- mous. Such a distinction is recognized in 1 Phillips, Ev. 156 ; 1 Starkie on Ev. 478 ; 3 Greenleaf, Ev. § 29; Roscoe, Crim. Ev. 14 ; Hilerv. The State, 4 Blackford, 552 ; Hitchcock v. Munger, 15 New Hampshire, 97; The State v. Cochran, 2 Devereux, 83 ; The Slate v. Merrick, 19 Maine, 398 ; Pate v. The People, 3 Gilman, 644 ; The Stale v. Newman, 7 Alabama, 69 ; The State v. Thompson, Wright, 617. And see Schmidt v. N. Y. Union, fyc. Co. 1 Gray, 534. But it is not easy to see a very material difference between the two ex- pressions of proving an act by the pre- ponderance of testimony, and proving it beyond a reasonable doubt. In either case the jury must be satisfied, fairly satisfied, fully satisfied, that the fact is so. Perhaps the expression of reason- able doubt was first applied to a case of circumstantial testimony only, in which case, if all the facts proved are consistent with the defendant's innocence, he is un- doubtedly entitled to an acquittal. At all events, it is erroneous to instruct a jury that if the proof leave the guilt or inno- cence of the accused in equipoise, they cannot, on that account alone, acquit. Winter v. The State, 20 Alabama, 39. It has not unfrequently been doubted wheth- er there is any absolute and uniform dis- tinction between the amount of proof re- quisite in civil and criminal cases. See Ripley v. Miller, 1 Jones, (N. C.) 479 ; Giles v. The Stale, 6 Georgia, 285. But if a defendant in a criminal case has a right to have the jury instructed that they must be satisfied of his guilt beyond a rea- sonable doubt, the next question is, what is a reasonable doubt ? It has been de- fined to be a doubt for which a reason could be given. It certainly must be a serious and substantial doubt, not the mere possibility of a doubt. Commonwealth v. Harman, 4 Barr, 274. And although a jury might believe from the evidence that it was possible some other person than the defendant might have committed the crime, it does not necessarily follow that they must acquit. Sumner v. The State, 5 Blackford, 580. Absolute mathematical or metaphysical certainty is in no case 360 LEADING CEIMINAL CASES. Larceny — Evidence — Recent Possession. essential ; moral certainty is all that is requisite. The proof should be such as to control and decide the conduct of men in the highest and most important affairs of life, and not a mere vague conjecture, a fancy, a trivial supposition, a bare possi- bility of innocence. To acquit upon such doubts is a virtual violation of a juror's oath. Giles v. The State, 6 Georgia, 285. In Commonwealth v. Webster, 5 Cushing, 320, Chief Justice Shaw said a reasonable doubt is not mere possible doubt ; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the en- tire comparison and consideration of all the evidence, leaves the minds of the ju- ors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. It is not sufficient to establish a probability, though a strong one, arisinjfcfrom the doc- trine of chances, that tttw|ac|- is more likely to be true than the contrary ; but the evidence must establish the truth of the fact to a reasonable and moral cer- tainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. This reasonable doubt, whatever it may be, extends to the whole case and to every part of it. Not only to the fact of homi- cide, and to the fact of the defendant's connection with the act, but also as to the degree of the homicide. If there be rea- sonable doubt whether the homicide was murder, or manslaughter, or justifiable homicide^pat doubt must weigh in favor of the prisoner, and entitles him to an acquittal of the more serious charge. Da- vis v. The State, 10 Georgia, 101. And where the evidence on a charge of mur- der consists of a chain of circumstances, a reasonable doubt of the existence of any one of the material circumstances, relied upon by the prosecution, justifies the jury in laying aside that particular circumstance in making up their verdict. They are to consider such circumstance as not proved, and therefore it ought not to influence their opinion. Sumner v. State, 5 Black- ford, 580. And see Commonwealth v. Webster, 5 Cushing, 296. E. H. B. The State v. Otis S. Merrick. 1 June Term, 1841. Larceny — Evidence — Recent Possession. Possession by the accused, in a prosecution for larceny, of the articles stolen, soon after the larceny was committed, raises a reasonable presumption of guilt. If a reasonable doubt is thrown upon a prima facie case of guilt, the party accused is not proved guilty, beyond a reasonable doubt. The accused, even when the stolen goods are found in his possession, and under his control, within a short time after the larceny is committed, and a presumption of guilt is raised, is not bound to show to the reasonable satisfaction of the jury, that he became possessed of them, otherwise than by stealing; the evidence may fall far short of establishing that, and yet create on the minds of the jury a reasonable doubt of his guilt. Exceptions from the District Court. This was an indictaent for feloniously stealing, taking and carry- » 19 Main LEADING CRIMINAL CASES. 361 Larceny — Evidence — Recent Possession. ing away sixty-three sheep, the property of Baxter Crowell. The defendant pleaded that he was not guilty. Evidence was introduced by the government, tending to show that the sheep belonged to said Crowell, and wejre stolen from him on Friday the twenty-fifth day of October, 1839, after a late hour in the afternoon of that day, and that the same were found in the possession of the defendant, afterwards, on the evening of the same Friday, he claiming them as his own, and exercising acts of dominion over them ; and that he drove them that evening and all that night toward Bangor, at which place he sold them the next day. The defence set up by the defendant was, that he bought the sheep on said Friday evening, of a stranger, who was driving them along the road toward Bangor; and evidence tending to prove that fact, was introduced by the defendant. Keddington, J., who presided at the trial, instructed the jury, that if the government had succeeded in removing from their minds all reasonable and substantial doubts, that the sheep were Crowell's property, and were stolen from him on said Friday "evening, and afterwards on the same evening were found in the pos- session of the defendant, he claiming ownership, and exercising acts of dominion over them, that these facts raised a legal presumption that the defendant had stolen them, sufficient to entitle the govern- ment to a verdict, unless the evidence also showed to the reasonable satisfaction of the jury, that the defendant became possessed of the sheep otherwise than by stealing them ; that after such legal pre- sumption of guilt had been raised, the burden of proof was upon the defendant to repel that presumption; and if the evidence had failed to produce upon the minds of the jury reasonable satisfaction that the defendant came by the sheep otherwise than by stealing them, the verdict must be against him. The evidence proved that the larceny (if any larceny there was,) was committed in Pittsfield, in the county of Somerset. The jury returned a verdict of guilty, and the counsel for the defendant filed exceptions, which were allowed. Tenney, for the defendant. The facts to which the charges of the judge apply may all be true, and yet the defendant be innocent. The judge said the jury were bound to draw the inference of guilt. The facts proved are entitled to consideration ; but must the inference of guilt be compulsorily drawn unless the defendant proves his inno- cence ? There are infinite gradations between guilt and innocence. Be- fore they are authorized to find guilt, all doubts must be removed. Here the jury were directed if they were not satisfied of his innocence to find the defendant guilty — that he must take the burden, and * 31 362 LEADING CRIMINAL CASES. Larceny — Evidence — Recent Possession. prove his innocence to their satisfaction. On the contrary the direc- tion should have been to leave the facts proved to the consideration of the jury, whether they were sufficient or not to warrant a convic- tion. 3 Dane's Abr. §03; 2 Stark. Ev. 840; 1 Phil. Ev. 117. A mere probability that the larceny was committed by another, would authorize an acquittal — but the court required more; that the defence should be proved. The jury are judges of law and fact.. Here the law was taken from their consideration, and they merely directed to draw a certain inference from the facts proved, unless the defence set up should be established. 4 Bl. Com. 359. Attorney- General, contra. The circumstances proved, established a primd facie case on the part of the government. That being established, the burden of proof, which applies to criminal, as well as civil cases, changes. The defence, whatever'it may be, must then be made out to the reasonable satisfaction of the jury. East's PI. C. 657 ; Ros. on Cr. Ev. 15. The opinion of the court was delivered by Weston, C. J. In prosecutions for larceny, where the goods are ' proved to have been stolen, it is a rule of law, applicable in these cases, that possession by the accused, soon after they were stolen, raises a reasonable presumption of his guilt. And unless he can account for that possession, consistently with his innocence, will justify his conviction. " Evidence of this nature is by no means conclusive, and it is stronger or weaker, as the possession is more or less recent." 2 Stark. 449. Such evidence is sufficient to make out a primd facie case, on the part of the government, proper to be left to the jury. In the absence of all opposing testimony, primd facie evidence in civil cases, becomes conclusive, and cannot be disregarded without calling for correction on the part of the court. Kelly v. Jackson q- al. 6 Peters, 622. When by opposing testimony, reasonable doubt is thrown upon a primd facie case of guilt, it can no longer be said that the party accused is proved guilty, beyorjd a reasonable doubt. The jury are to judge upon the effect of the testimony, taken together. It was in our judgment too strong, to instruct the jury, that they must convict the accused, unless he had proved, to their reasonable satisfaction, that he came by the sheep otherwise than by stealing. Proof of good character may sometimes be the only mode by which an inno- cent man can repel the presumption of guilt, arising from the recent possession of stolen goods. As for instance, where the party really guilty, to avoid detection, thrusts, unobserved in a crowd, the article stolen into the pocket of another man. This may be done, and the innocent party be unconscious of it at the time. And yet good LEADING CRIMINAL CASES. 363 Larceny — Eeoent Possession — Reasonable Account. character is not proof of innocence, although it may be sufficient to raise a reasonable doubt of guilt. The case finds, that the defendant did adduce ewdence, tending to prove that he bought the sheep of a stranger. It may be easily con- ceived, that this proof may have been strong enough to create in the minds of the jury a reasonable doubt of his guilt ; and yet fall short of establishing the fact, beyond a reasonable doubt, that he did so purchase them. In such a case, the instruction required a con- viction, although every one of the jury might entertain reasonable doubts of his guilt. Exceptions sustained. Regina v. Evans. 1 July 30, 1847. Felony — Recent Possession — Reasonable Account. Where property of insignificant value' is traced to the possession of the prisoner fifteen months after the loss, and the prisoner gives an account of his possession of it which is not inconsistent with the right of the prosecutor to it, he ought not be called on to account for that possession in a court of justice. Where, however, the prisoner, when lost property is found in his possession, and identified by the prosecutor after so long an interval, claims it as his own property by right of pur- chase made before the alleged theft, and a continuous possession up to the time of dis- covery, he may be called on to account for that possession, notwithstanding the interval which has elapsed between the loss and discovery, for then he disputes the identity of the thing found with that lost.' The indictment charged, that the prisoner feloniously took and carried away a beetle-head of the prosecutor, John Williams. Sanders, for the prosecution, called John Williams, who stated that the article in question was his property ; that he had had it sev- eral years, and well knew it by certain marks, but that he could not say when it was taken from his premises, as he had not seen it for fifteen months before a recent day, when it was missed, and subse- quently had traced it to the possession of the prisoner, who claimed it as his own property, and stated that he had bought it eight years ago, at a sale of his mother's effects. At the close of the case for the prosecution, Keane, for the prisoner, i 2 Cox. C. C. 270. 364 LEADING CRIMINAL CASES. Larceny — Recent Possession — Reasonable Account. submitted that the circumstances disclosed by the prosecutor, regard- ing the loss and discovery of this article, were not such as to render it necessary that the prisoner should account for its possession. Ac- cording to the account pf the prosecutor, it had been lost so. far back as fifteen months before it was found in the possession of the pris- oner ; and such an interval had frequently been held to be sufficient to exonerate the party in whose possession stolen property was found, from the necessity of accounting for the manner in which he had become possessed of it. Alderson, B. I quite agree with you that such is the case, and I would so direct the jury, but for the statement of .the prisoner, who, in giving an account of bow he became possessed of the article, tells a lie, if it be the property of the prosecutor. If he had rested his case on the position which you now take for him, when the property was found and claimed by the prosecutor, he would have been ex- empt from the charge, of stealing it, on the ground stated by you. He would then have admitted the beetle to be the property of the pros- ecutor, but he denies that by this statement, while he, at the same time, admits that he had this thing in his possession at a time imme- diately after its loss, and therefore there is a " recent possession." Keane. That is, assuming that the statement of the prisoner is a lie. Alderson, B. Certainly. If it be correct, then the beetle is not that lost by the prosecutor, and he has made a mistake in swearing to it as his property. You must go to the jury on that question. Keane addressed the jury on the merits. Alderson, B., summed up. In cases where property of such in- significant value as that laid in this indictment is shown to have been stolen so long as fifteen months before it is discovered in the possession of a stranger, that person ought not to be called on to answer for that possession, on a charge of feleny, for it might rea- sonably be inferred that"he had come honestly by it in that long in- terval, reference being always had to the character and value of the thing itself. If the prisoner had said, in the first instance, " Why, really I can't tell where or how I got this beetle," I should have said that that was a reasonable statement, and that he ought not to have been indicted for stealing it ; in that case it being assumed that the prisoner does not deny that the article found might once have been the property of the prosecutor. Where, however, the prisoner is LEADING CRIMINAL CASES. 365 Larceny — Recent Possession — Reasonable Account. shown to have claimed the thing so found in his possession, and sworn to by the prosecutor, to be his own property, by right of a pur- chase made eight years ago, and a continued possession up to the present time, I should say that that was not so reasonable an account of his possession as to exempt him from the necessity of accounting for it to the satisfaction of a jury ; for, if it be true, the prosecutor is wrong, and the identity of the thing found with that lost is disputed. If the prosecutor should satisfy the jury that the beetle in question was his, then the statement of the prisoner accounting for his pos- session of it must be false, and he must be presumed to have stolen it, though it was not found in his possession for fifteen months after the loss. The question, therefore, is simply one of identity. Is that beetle the thing which was bought by the prisoner at the sale of his mother's goods eight years ago ; or is it another and a different bee- tle, which was in the possession of the prosecutor within fifteen months, when it was lost ? If the latter be the case, the prisoner is guilty. Verdict — Not Guilty. Since the desire of dishonest gain is the impelling motive to theft and 'robbery, says Mr. Wills, in his Essay on the Law of Circumstantial Evidence, p. 47, free use of ■which has been made in the preparation of this note, it naturally follows that the pos- session of the fruits of crime, recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they were found, was the real offender, unless he can account for such possession, in some way consistently with his innocence. The force of this presumption has been recognized from the earliest times ; its foundation is the obvious consideration, that if the possession has been lawfully acquired, the party would be able, at least, shortly after its acquisition, to give an account of the manner in which such possession was obtained, and his unwill- ingness or inability to afford such explan- ation is justly regarded as amounting to strong self-condemnatory evidence. If the party give a reasonable and probable account of the way in which he became possessed of the property, as by stating the name of the person from whom he obtained it, and such party is known to be a real person, it is then incumbent on the 31* prosecutor to show that such account is false ; but, if the account given be unrea- sonable or improbable on the face of it, then the accused must prove its truth, or otherwise he will not be relieved from the pressure of the general rule of presump- tion. Regina v. Dibley, 2 Carrington & Kirwan, 818. Therefore, where a man was indicted for stealing a piece of wood, which was found five days after the theft, in his shop, and he stated that he had bought it from a person whom he named, and who lived about two miles off, it was held that the prosecutor was bound to show that the account was false. Regina v. Crowhurst, 1 Carrington & Kirwan, 370. In this case, in summing up, Alderson, B., said : In cases of this nature you should take it as a general principle, that, where a man, in whose possession stolen property is found, gives a reasonable ac- count of how he came by it, as by telling the name of the person from whom he re- ceived it, and who is known to be a real person, it is incumbent on the prosecutor to show that that account is false ; but if the account given by the prisoner be un- reasonable or improbable on the face of it, the onus of proving its truth lies on him. Suppose, for instance, a person were to 366 LEADING CRIMINAL CASES. Larceny — Recent Possession — Reasonable Account. charge me with stealing this watch, and I were to say I bought it from a particular tradesman, whom I name, that is prima facie a reasonable account, and I ought not to be convicted of felony unless it is shown that that account is a false one. In Regina v. Smith, 2 Carrington & Kirwan, 207, Lord Denman, C. J., said : I quite agree with the case of Regina v. Ormohurst, which is very correctly re- ported. It was mentioned to me by Baron Alderson, at the time when it occurred. If a person in whose possession stolen property is found, give a reasonable ac- count of how he came by it, and refer to some known person, as the person from whom he received it, the magistrate should send for that person and examine him, as it may be that his statement may entirely exonerate the accused person and put an end to the charge ; and it also very often may be that the person thus referred to would become a very important witness for the prosecution, by proving, in addition to the prisoner's possession of the stolen property, that he has been giving a false account as to how he came by it. The denial of a party having in his possession stolen goods, that he has such goods in his possession, is holden to be presumptiye proof of his guilty knowledge, for the ob- vious reason, that if he were ignorant of the larceny, and had come to the posses- sion fairly, he could have no motive for concealment. When, therefore, it is shown that the denial of the possession was the consequence of misunderstanding, such denial ceases to be a presumptive proof of the party charged. Sartorius v. The State, 24 Mississippi, 602. It is manifest that the force of this rule of presumption depends upon the recency of the possession as related to the crime, and upon the exclusiveness of such pos- session. 1. If the interval of time between the loss and the finding be considerable, the presumption, as it affects the party in pos- session of the stolen property, is much weakened, and the more especially so if the goods are of such a nature as, in the ordinary course of things, frequently to change hands. From the nature of the case it is not possible to fix any precise period within which the effect of this rule of presumption can be limited ; it must depend not only upon the mere lapse of time, but upon the nature of the property and the concomitant circumstances of each particular case. SeeEnglemanv. The State, 2 Carter, (Indiana,) 91. In Rex v. Cockin, 2 Lewin, C. C. 235, the prisoner was in- dicted for stealing two sacks. The evi- dence was, that the sacks which had been missed in February, were found in his possession in March, about twenty days after. Coleridge, J., said to the jury : If I was now to lose my watch, and in a few minutes it was to be found on the person of one of you, it would afford the strong- est ground for presuming that you had stolen it; but if a month hence it were to be found in your possession, the presump- tion of your having stolen it would be greatly weakened, because stolen prop- erty usually passes through many hands. 1 l As a general proposition, says the reporter in a very instructive note to this case, where a per' son is in possession of property, it is reasonable to suppose that he is able to give an account of how he came by it ; and where the property in question has belonged to another, it is in general not unreasonable to call upon him to do so. If the change of possession has been recent, he will not be likely to have forgotten, still less, if it be an article of bulk or value. If then, it be reasonable, under such circumstances, to call upon the party in possession to. account for such possession, it cannot be unreasonable to presume against the lawfulness of that nossession, when he is unwilling to give an account, or is unable to give a probable reason why he cannot Now, there is no reason in general why an honest person should be unwilling; and, therefore the law presumes that such person is not honest, and that he is the thief. The property must have been taken by some one. He is in possession, and might have taken it, and ho refuses to eive such information upon the matter as an honest man ought. But if the property has not recently changed hands; if the time since it passed from the pos- session of tho rightful owner, is considerable, then the likelihood of his having forgotten is increased, and with it the difficulty of giving an account. , LEADING CRIMINAL CASES. 367 Larceny — Recent Possession — Reasonable Account. Where two pieces of woollen cloth, in an unfinished state, consisting of about twenty yards each, were found in the possession of the prisoner two months after being missed, and still in the same state, it was held that this was a possession sufficiently recent to call upon him to show how he came by the property. Rex v. Partridge, 7 Carrington & Payne, 551. And in The State v. Bennett, 2 Constitutional Rep. 692, it was also held, that the lapse of two months was not sufficient to rebut the presumption of guilt arising from the possession of the goods. But in this case, the presumption was strengthened, by the concealment of the property, and by other circumstances which were left to the jury. The value of this case, however, is impaired, from the fact, that the nature of the goods is not stated in the report. In another case Mr. Justice Bayley directed an acquittal, because the only evidence against the prisoner was that the goods were not found in his possession until after a lapse of sixteen months after the loss. Rex v. , 2 Carrington & Payne, 459. The report of this case is subject to the same criticism as The State v. Bennet, supra. And where a shovel which had been stolen was found six months after the theft, in the house of the prisoner, who was not then at home, Mr. Baron Gurney held, that on this evidence alone the prisoner ought not to be called upon for his de- fence. Regina v. Cruttenden, 6 Jurist, 267. Where a number of traps, a boat-hook, etc., were stolen, and a portion of. the property was found upon the premises of the prisoner, about eighteen or nineteen months afterwards, it was held, that this fact, unaccompanied by other suspicious circumstances, was not prima facie evi- dence that the prisoner was guilty of the larceny. Warren v. The Slate, 1 Greene, (Iowa,) 106. Where the only evidence against a prisoner, charged with the lar- ceny of a saw and mattock, was that the stolen articles were found in his possession three months after they were missed, it was held that this was not such a recent possession as per se to put him upon show- ing how he came by them. Rex v. Adams, 3 Carrington & Payne, 600. See Regina v. Hall, 1 Cox, C. C. 231. After a long interval of time the means of proof are lessened. People move away Atom place to place; they die, and little circumstances are confounded together; those of the time with those subsequent or antecedent. The memory of two persons equally honest, and intending the truth, may not be equally strong ; they "may differ from each other in the recollection of facts, or enmities may have grown up, and the occasion may be laid hold of to gratify a vindictive feeling. Again, the circumstances in life of the party may be a material point in the "question. A man engaged in important daily avocations, in which his mind is employed, will take less notice of transactions of a different nature ; his memory will be less strongly impressed with particulars regarding them ; he will, perhaps, never recur to them. Of course, therefore, the impression will be less lasting. It will become overlaid with new and more interesting matter till the traces of it are lost, and this effect will be likely to happen more or less soon as the object is of less or more value, or of less or greater bulk ; and, as it may happen to be an article that is more or less fre- quently brought under the party's view; judges therefore hold, and more reasonably hold, that a person is not to be called upon to give an account at a distant period after the theft. The question, however, of distance of time or recent possession, must be at all times one of fact under" the circumstances, and a jury under the judge's direction must ultimately decide. It is feared that a want of proper caution in individuals often places them in the situation of being charged with theft, when it is far from improbable that they are innocent. The presumption of law arising from mere possession is apt to be overstrained as against such persons; for the common prejudices of undisciplined minds is in favor of guilt, even where the law itself presumes innocence ; and the circumstances which go to satisfy the mind of the guilt or innocence of the party, are not always so fully investigated as they might be. It is likowise apt to be forgotten, that persons in the humbler classes of life, and who are for the most part those who are arraigned upon charges to which .this presumption of law applies, are not in general able to support the expense of bringing witnesses to speak to their general character ; the law pro- vides not the means of their doing so ; and yet it must be obvious, that in many conceivable cases the presumption arising from mere possession, however recent, would not stand for a single instant against the character and circumstances of particular individuals, whose very names would alone be sufficient to rebut the strongest evidence. 368 LEADING CEIMINAL CASES. Larceny — Eecent Possession — Reasonable Account. But -where the evidence against the pris- oner was, that three sheets were found upon his bed in his house three months after they had been stolen, Mr. Justice Wightman held that the case must go to the jury, on the ground that it was impossible to lay down any rule as to the precise time which was too great to call upon the prisoner to ac- count for the possession. Rex v. Hewlett, 2 Russell on Crimes, by Greaves, 728, note. In The State v. Adams, 1 Haywood, (North Carolina,) 463, the prisoner was indicted for stealing a horse. It appeared in evi- dence, that the horse was taken in Wake county on the 10th, and was in the prison- er's possession, sixty miles from the place, on the 16th of the month. There he sold him to one of the witnesses, and said . he had purchased him a few days before, near Edenton, distant from thence two hundred miles. This evidence was held sufficient to raise the presumption of guilt. And where seventy sheep were put upon a com- mon on the 18th of June, but not missed until November, and the prisoner was proved to have had possession of four of them in October, and of nineteen more on the 23d of November, the judge allowed evidence of the possession of both to be given. Rex v. Dewhurst, 2 Starkie, Ev. 614. In Hughes v. The State, 8 Humphreys, 75, the defendant was indicted for stealing a horse and saddle. About ten days after- wards, he found the horse in the posses- sion of John Farmer. He found his saddle in the possession of defendant, who stated that he had swapped for it, and also the horse. Hughes made several contradic- tory statements in regard to the mode he got the horse and saddle. Farmer testi- fied«that he got the horse of the prosecu- tor from Hughes, late on Tuesday evening. Hughes stated that he had swapped for the horse and saddle with a man by the name of White, from Georgia. The judge in the court below instructed the jury, " that when a larceny has been committed, and the stolen goods are found shortly thereafter, the law presumes he is the thief in whose possession they are found. That when nothing more appears, than that the goods were stolen, and than that they were shortly thereafter found in possession of the defendant, the presumption interposes with the full power of law 5 and demands a conviction. That in such case the jurors have no doubt but it becomes their duty to return a verdict of guilty. That this presumption is not conclusive, and of course yielded to sufficient opposing evi- dence whenever it should be offered," etc. The Supreme Court sustained this charge, and said : " We think his honor has laid down the rule in strong language, but we cannot, for this reason, reverse the judg- ment. Taking the entire charge, the prin- ciple is correctly stated ; greater force or efficacy is not given to the legal presump- tion than in such case properly belongs to it. The law has defined the nature and amount of evidence which shall make a prima facie case of guilt. The burden of proof is cast upon the , defendant, and if unexplained, either by direct evidence, or by the attending circumstances, or by the character and habits of life of the defend- ant, or otherwise, the presumption of law becomes conclusive that his possession is a guilty possession. This presumption takes the place of plenary proof ; in such case no doubt can exist, and the jury are bound to find in favor of the presump- tion." 2. It is obviously essential to the just application of this rule of presumption, that the house or other place in which the stolen property is found be in the exclu- sive possession of the prisoner. Prima facie, if stolen goods are found in a man's house, he, not being the thief, is a re- ceiver. Per Coleridge, J., Regina v. Mat- thews, 1 Denison, C. C. 601. Where they are found in the apartments of a lodger, for instance, the presumption may be stronger or weaker, according as the evi- dence does or does not show an exclusive possession. The possession of the wife has been held, under certain circum- stances, to be the possession of the hus- band. A constable went with a warrant to search the prisoner's premises for stolen iron, and almost immediately after the prisoner was taken away from the prem- ises at the conclusion of the search, his wife carried some tin under her cloak from a warehouse on the premises. Mr. LEADING CEIMINAL CASES. 369 Larceny -»- Recent Possession — Reasonable Account. Justice Coleridge, on the trial of the pris- oner for receiving stolen brass and tin, held that it was for the jury to consider whether her possession was not the prisoner's, she being upon the premises and all the cir- cumstances being taken into consideration, and that it was not like the ease where the wife is in possession of stolen property at a distance from the premises of her hus- band. Regina v. Mansfield, Carrington & Marshman, 142. And upon an indictment against principal and receiver, where goods were found on the receiver's prem- ises, which had been taken from the pros- ecutor's premises, it was held to be com- petent to the prosecutor to give evidence of the finding of other goods at the house of the principal, notwithstanding there was no evidence to connect the receiver with them. Regina v. Hinley, 2 Law Times, 287 ; 2 Moody & Robinson, 524. The force of this presumption is greatly increased if the fruits of a plurality or of a series of thefts be found in the prisoner's possession, or if the property stolen con- sist of a multiplicity of miscellaneous ar- ticles, or^be of an uncommon kind, or from its value or other circumstances be inconsistent with or unsuited to the station of the party. On the trial of two men at Aberdeen autumn circuit, 1S24, it appeared that a carpenter's workshop at Aberdeen was broken open on a particular night, and some tools carried off", and that on the same night the counting-houses of Messrs. Davidson, and of Messrs. Catto & Co., in different parts of that city, were broken into, and goods and money to a consider- able extent stolen. The prisoners were met at seven on the following morning in one of the streets of Aberdeen, at a dis- tance from either of the places of depre- dation, by two of the police. Upon seeing the officers they began to run ; and being pursued and taken, there was found in the possession of each a considerable quantity of the articles taken from Catto & Co., > but none of the things taken from the carpenter's shop or Davidson's. But in Catto & Co.'s warehouse were found a brown coat and other articles got from Davidson's, and which had not been there the preceding evening when the shop was locked up ; and in Davidson's were found the tools which had been abstracted from the carpenter's. Thus, the recent possession of the articles stolen from Catto & Co.'s proved that the prisoners were the depredators in that warehouse ; while the fact of the articles taken from Davidson's having been left there, connected them with that prior housebreaking ; while, again, the chisels belonging to the carpen- ter's shop, found in Davidson's, identified the persons who broke into that last house with those Who committed the original theft at the carpenter's. The prisoners were con- victed of all the thefts. Rex v. Downie and Milne, Allison, Crim. Law, 313. A still stronger case of the same kind occurred at Aberdeen in April, 1826, on the trial of a man who was accused of no less than nine different acts of theft by housebreaking, committed in and around Aberdeen at various times during the summer of 1825 and the following winter. No suspicion had been awakened against the prisoner, who was a carter, living an industrious and apparently regular life, until one occasion, when some of the stolen articles having been detected in a broker's shop, and traced to his custody, a search was made, and some articles from all the houses broken open found amongst an immense mass of other goods, evidently stolen, in a large chest, and concealed about various parts of the prisoner's house. Their number and variety, and the place where they were found, were quite suffi- cient to convict him of receiving the stolen property ; but as they were discovered at the distance of many months from the times when the various thefts had been committed, the difficulty was how to con- nect him with the actual theft. The charges selected for trial were five in num- ber, and as nearly connected with each other in point of time as possible. In none of them was the prisoner identified as the person who had broken into the houses, although the thief had been seen, and more than once fired at ; but in all the first four houses which had been bro- ken into were discovered some of the articles taken from the others, and in the 370 LEADING CRIMINAL CASES. Larceny — Recent Possession — Reasonable Account. prisoner's custody were found some arti- cles taken from them all, which sufficiently proved that all the depredations had been committed by one person ; and the mark of an iron instrument was found on three of the windows broken, which coincided exactly with a chisel left in the last house. Two days after the housebreaking of that house, an old watch, part of the stolen property, was shown by the prisoner to a shopkeeper, to whom it was soon after- wards sold, and by him delivered up to the officers. Upon this evidence the pris- oner was convicted of all the charges of housebreaking. Rex v. Bowman, Allison, Crim. Law, 314. The possession of stolen goods, recently after their loss, may be indicative not of the offence of larceny simply, but of any more aggravated crime which has been connected with theft. Upon an indict- ment for arson, proof that property which was in the house at the time it was burnt was soon afterward found in the possession of the prisoner, was held to raise a probable presumption that he was present and con- cerned in the offence. Rex v. RicJcman, 2 East, P. C. 1035 ; Commonwealth v. Mil- lard, 1 Massachusetts, 6. And see Fuller's case, Russell & Ryan, C. C. 308. So this particular fact of presumption is of the highest importance in cases of mur- der, where that circumstance forms, as it most commonly does, an element of evi- dence. Rex v. Burdett, 4 Barnewall & Alderson, 122 ; Regina v. Courvoisier, Wills on Circumstantial Ev. 241. This special application of the rule in question was very emphatically laid down by Mr. Justice Bayley on the trial of John Diggles at Lancaster spring assizes, 1826, for the murder of two aged persons, Benjamin Cass and his wife, who added that the pre- sumption of guilt becomes much stronger, if the party, in endeavoring to account for his possession of the property, gives a false statement. The deceased were last seen alive about ten in the evening of the 1st of October, 1825, and were found murdered about six o'clock on the follow- ing morning. The prisoner was acquainted with the deceased, and had been seen in the vicinity of their cottage between four and five o'clock in the afternoon of the day on which they were murdered, and he was also seen on the following morning at ten o'clock, at some distance, proceed- ing in a direction from the spot. On the evening of Sunday the 2d of October, and on the following day, the prisoner sold several articles of wearing apparel, proved to have belonged to the old man, to per- sons to whom he gave false accounts as to the place from whence he had come. Upon his apprehension a few days after- wards, the prisoner stated that he had bought the articles in question on the Sunday. In the waistcoat pocket the person who purchased it from the prisoner found a pair of spectacles, which were proved to have belonged to Cass; as to which the learned judge observed, that " it was not very likely that the old man would have sold them, and that such ar- ticles become, as it were, part of a man's person." The prisoner was convicted, and before his execution confessed his guilt. Upon the principle of this presumption a sudden and otherwise inexplicable trans- ition from a state of indigence, and a con- sequent change of habits, is sometimes a circumstance extremely unfavorable to the supposition of innocence. See Common- wealth v.' Montgomery, 11 Metcalf, 534. But this rule of presumption must be applied with caution and discrimination, for the bare possession of stolen property, though recent, uncorroborated by other evidence, is sometimes fallacious and dan- gerous as a criterion of guilt. Sir Matthew Hale lays it down, that " if a horse be stolen from A., and the same day B. be found upon him, it is a strong presumption that B. stole him ; yet," adds that excellent lawyer, " I do remember before a learned and very wary judge, in such an instance, B. was condemned and executed at Ox- ford assizes, and yet within two assizes after, C, being apprehended for another robbery, and convicted, upon his judgment and execution confessed he was the man that stole the horse, and being closely pur-* sued desired B., a stranger, to walk his horse for him while he turned aside upon a necessary occasion, and escaped ; and B. was armrehended with the horse, and died LEADING CRIMINAL CASES. 371 Larceny — Kecent Possession — Reasonable Account. innocently." 2 Hale, P. C. ch. 39 ; see The State v. Smith, 2 Iredell, 402 ; The State v. Adams, 1 Haywood, (N. Carolina,) 463. A very similar case occurred at the Surrey summer assizes, 1827, -where a young man was convicted of stealing two oxen. The prisoner, having finished his apprenticeship to a butcher at Monk Wearmouth, went to visit an uncle at Portsmouth, from whence he Bet out to return to London. On the road from Guilford to London, about three o'clock in the morning, he overtook a man riding upon a pony and driving two oxen ; who, finding that he was going to London, of- fered him five shillings to drive them for him to London, which he agreed to do, the man engaging to meet him at West- minster Bridge. At Wandsworth the prisoner was apprehended by the pros- ecutor's son, and charged with stealing the oxen. On his apprehension he as- sumed a false name, under which he was tried, to conceal his situation from his friends. The prisoner was convicted, but on a representation of the circumstances he received a pardon, when, .on the point of being transported for life. He had been the dupe of the real thief, who, find- . ing himself pursued, had thus contrived to rid himself of the possession of the cattle. Hex v. Gill, Sessions Papers and A. R. 1827. The recent possession of stolen property may sometimes be referrible not to the crime of theft, but to that of having re- ceived it with a guilty knowledge of its having been stolen. Four persons were guilty of housebreaking on proof of the recent possession of the goods; but it was afterwards ascertained that one of them, who had long been known as a receiver of stolen goods, knew nothing of the rob- bery until after it had been committed, and had purchased the goods of the real thieves the day after the robbery. He very narrowly escaped execution. Rex v. Ellis, Sessions Papers and A. R. 1831. There must always be some chance of such mistake, especially if the goods are traced ex intervatto ; but counts for re- ceiving may, in all cases, be joined with counts for larceny. Hampton v. The State, 8 Humphreys, 69. The rule under discussion is occasionally attended with uncertainty in its applica- tion, from the difficulty attendant upon the positive identification of articles of property alleged to have been stolen ; and it clearly ought never to be applied, where there is reasonable ground to con- clude that the witnesses may be mistaken, or where from any other cause identity is not satisfactorily established. But the rule is nevertheless fairly and properly applied in peculiar circumstances, where, though positive identification is impossible, the possession of the property cannot without violence to every reasonable hypothesis but be 'considered of a guilty character ; as in the case of persons employed in car- rying sugar and other articles from ships and wharves. Cases have frequently oc- curred of .convictions of larceny, in such circumstances, upon evidence that the par- ties were detected with property of the same kind upon them recently after com- ing from such places, although the identity of the property as belongiug to any par- ticular person could no otherwise be prov- ed. 2 East, P. C. 1035. On this principle two men were convicted of larceny upon evidence that the prosecutor's soap man- ufactory, near Glasgow, had been broken into in the night, and robbed of about 120 lbs. of yellow soap, and that the pris- oners were met on the same night, about eleven o'clock, by the watchman, near the centre of the city, from whom they at- tempted to escape, one bearing on his back 40 lbs. of soap of the same size, shape and make as that stolen from the prosecutor's premises, and the other with his clothes soiled over with the same sub- stance, though the property could not be more distinctly identified. Rex v. McKech- nie and Tolmie, Allison, Crim. Law, 822. It is seldom, however, that juries are required to determine upon the effect of evidence of the mere recent possession of stolen property ; from the very nature of the case, the fact is generally accompanied by other corroborative or explanatory cir- cumstances of presumption. If the party have secreted the property ; if he deny it is in his possession, and such denial is discovered to be false ; if he cannot show 372 LEADING CKIMTNAL CASES. Sentence — Illegality of — Writ of Error. he became possessed of it ; if he give false, incredible, or inconsistent accounts of the manner in which he acquired it, as that he had found it, or that it had been given or sold to him by a stranger or left at his house ; if he has disposed of or attempted to dispose of it, at an unreasonably low price ; if he has absconded or endeavored to escape from justice; if other stolen property, or picklock keys, or other in- struments of' crime be found in his pos- session ; if he were seen near the spot at or about the time when the act was com- mitted ; or if any article belonging to him be found at the place or in the locality where the theft was committed, at or about the time of the commission of the offence ; if the impression of his shoes or other articles of apparel corre- spond with marks left by the thieves ; if he has attempted to obliterate frW the articles in question marks of identity, or to tamper with the parties or the officers of justice ; these and all like circum- stances are justly considered as throwing light upon and explaining the fact of pos- session, and render it morally certain that such possession can be referrible only to a criminal origin, and cannot otherwise be rationally accounted for. See also on this subject, The State v. Brewster, 7 Vermont, 122 ; Pennsylvania^. Myers, Addison, 320 ; The Stale v. Wes- ton, 9 Connecticut, 527 ; The Stale v. Wil- liams, 9 Iredell, 140 ; Jones v. The People, 12 Illinois, 259; The State v. Jones, 3 Devereux & Battle, 122 ; The State v. Clark, 4 Strobhart, 311 ; The Slate v. Wolff, 15 Missouri, 168; The Slate v. Floyd, 15 Missouri, 349 ; Rex v. Watson, 2 Starkie, Rep. 139 ; The London Monthly Law Magazine, vol. 7, p. 55. H. The King v. Ellis. 1 May 5, 1826. i Sentence — Illegality of— Writ of Error. "Where an inferior court renders an erroneous judgment against a defendant, and he brings a writ of error to reverse it, this court cannot render a new judgment, nor remit the case to the court below in order that a new judgment may be rendered there, but can only reverse the judgment and discharge the defendant. The statute 3 G. 4, ch. 38, § 2, enacts, " that if any servant shall steal any money from his master, and shall be convicted thereof, and be entitled to the benefit of clergy, he, instead of being subjected to such punishment as may now by law be inflicted upon persons so convicted, and entitled to benefit of clergy, shall be transported for fourteen years:" Held, that a servant convicted of petit larceny was not Within the meaning of this statute, and that he was subject to be transported for seven years only. The defendant was indicted at a Court of Quarter Sessions held before the justices of the city and county of Exeter, and the indict- ment charged, that he one piece of the current coin of this realm, called a shilling, of the value of one shilling, of the money, goods, and chattels of Susan Newman, feloniously did steal, take, and carry away. Another count charged, that the defendant was a servant to i 5 Barnewall & Cresswell, 395. LEADING CRIMINAL CASES. 373 Sentence — Illegality of — Writ of Error. S. Newman, and being such servant, one other piece of the current coin of this realm, called a shilling, o^ the value of one shilling, of the money, goods, and chattels of the said S. Newman, feloniously did steal, take, and carry away, against the form of the statute, &c. The jury having found the prisoner guilty upon the indictment generally, the court adjudged that he be transported to parts beyond the seas for the term of fourteen years. A writ of error having been brought upon this judgment, the error assigned was, that by the law of the land the defendant could not for the offence charged in the indictment be legally transported beyond the seas for the term of fourteen years, or for any longer term than seven years. This case was argued on a former day in this term, by Chitty, for the prisoner. The judgment cannot be supported. The defendant, having been convicted of petty larceny, was liable to transportation for seven years only. This is not a case within the statute 3 G. 4, ch. 38, § 2, which enacts, " that if any servant, &c. shall feloniously steal any money, &c. from or belonging to his master or mistress, and shall be convicted thereof, and be entitled to the benefit of clergy, then every such offender, instead of being subjected to such punishment as may now by law be inflicted upon persons so convicted, and entitled to the benefit of clergy, may be transported for fourteen years." The statute contemplated cases where the party convicted was compelled to claim the benefit of clergy to exempt himself from the punishment of death. But petty larceny was at no period so punishable. 4 Blac. Com. 238 ; 3 Inst. 218. Clergy was not allowable at common law in petty larceny or mere misdemeanors. 4 Blac. Com. 374. The statute 4 G. 1, ch. 11, which first gave the court a discretionary power of ordering transportation in certain cases, mentions petty larceny by name, and it limits the period to seven years. (He was then stopped by the court.) Parke, contra. The judgment of transportation for fourteen years is warranted by law. Secondly, at all events, it is good as a judg- ment of transportation for seven years. Thirdly, if the judgment cannot be supported, the prisoner may be remanded to the court below, in order that he may receive such judgment as the law will warrant. The judgment pronounced is warranted by the statute 3 G. 4, ch. 38, § 2. Before that statute all persons guilty of petty larceny, including servants robbing their masters, as well as others, might receive judgment of transportation for seven years. The object of that statute was to increase the punishment in the case of servants robbing their masters or employers. It must, therefore, have been the intention of the legislature to subject such offenders 32 374 LEADING- CRIMINAL GASES. Sentence — Illegality of — Writ of Error. to fourteen years transportation. There could be no doubt if the words " and shall be entitled to benefit of clergy " were omitted. In order to give effect 'to the manifest intention of the legislature, those words must be read, " shall not be excluded from the benefit of clergy." They have that meaning in the statute 4 G. 1, ch. 11, from which they have been adopted into the statute 3 G. 4, ch. 38, § 2. The judgment, therefore, is a valid judgment. Secondly, it is a good judgment of transportation for seven years. In Rex v. Colly er and another, 1 Wils. 332, the defendants were convicted upon an indict- ment for insulting a justice of the peace in the execution of his office, and adjudged to be imprisoned for a month; and ask pardon, and to advertise it. The two latter parts of the judgment were held to be void, but the former part good. It is true a defective judgment, omitting an essential part of the punishment required by law, is bad. Rex v. Walcott, 4 Mod. 395 ; Rex v. Read, 16 East, 404. But here the judgment is excessive. It is good for that part which is war- ranted by law, and bad for the residue. At all events, the prisoner ought to be remanded to the court below, in order that the proper judgment may be given. Rex v. Kenworthy, 1 B. & C. 711. Cur. adv. vult. Abbott, C. J., now delivered the judgment of the court. This was a writ of error brought to reverse a judgment, by which the prisoner, who was convicted of petty larceny, was sentenced to fourteen years transportation. The objection was, that the offence charged being only petty larceny, the prisoner could not by law receive judgment for fourteen years' transportation, but for seven only. To sustain the judgment, the statute 3 G. 4, ch. 38, § 2, was relied upon. That section recites, that frequent depredations had been committed by servants, to the serious detriment and loss of their masters, and that it was expedient that such offenders, when entitled to benefit of clergy, should be made liable to a more severe punishment. It then enacts, " that if any servant shall feloniously steal any goods, chattels, money, &c, from or belonging to his master, and shall be lawfully convicted thereof, and be entitled to the benefit of clergy, then and in every such case such offender, instead of being subject to such punishment as may now by law be inflicted upon persons so con- victed, and entitled to the benefit of clergy, may, at the discretion of the court by or before which they shall be convicted, be adjudged to be transported beyond the seas for any term not exceeding fourteen years." It has been contended, that the expression " entitled to the benefit of clergy " limits the. operation of the section to those offences for which a party convicted was compelled to pray benefit of clergy in order to save himself from death ; and as petty larceny was an . LEADING CEIMINAL CASES. 375 Sentence — Illegality of— Writ of Error. offence never so punishable, and for which therefore it never could have been necessary to pray the benefit of clergy, it followed that a party guilty of such an offence could not be considered as a person entitled to benefit of clergy. Before the passing of this act the statute 4 Gri 1, ch. 11, enacted, " that where any persons had been convicted of any offence within the benefit of clergy, and were liable to be whipt or burnt in the hand, as also where any persons should be thereafter convicted of grand or petit larceny, or any felonious stealing or taking of money, &c. either from the person or the house of any other, or in any other manner, and who by law should be entitled to the benefit of clergy, and liable only to the penalties of burning in the hand or whipping, it should be lawful for the court, instead of ordering any such offender to be burnt in the hand or whipped, to order and direct that he should be sent to some of his Majesty's colonies and plantations in America for seven years." Now it is to be observed, that in this statute, which is the first which authorizes courts of law to transport offenders to parts beyond the seas, petit larceny is mentioned by name. In the stat. 3 G. 4, ch. 38, it is not. The object of the last statute being to increase punish- ment, we are of opinion that it should be construed strictly, and it being doubtful whether the legislature had in view petit larceny or grand larceny only ; and the latter being the only description of larceny in respect of which the party convicted must have the benefit of clergy in order to exempt himself from a more severe punishment, we think it the safer course to confine the construction of the statute to those instances. The consequence is, that the judgment of the court below is more severe than that which is authorized by law. But it is said, that the judgment is good as a judgment for seven years' transportation ; but I cannot assent to that proposition. " If the prisoner is sent out of the country for fourteen years, who is to say that he is to be discharged at the end of seven? It has been further urged, that the prisoner may be remanded to the court below, and there receive the proper sentence, that having been done in Rex v. Kenworthy, 1 B. & C. 711 ; but there is this material distinction between the two cases; there no judgment whatever had been passed in the court below: and this court therefore ordered the prisoner to be remanded to the inferior court, in order to receive judgment. But here the court below has passed a judgment, and that judgment being erroneous, we think there is no ground to send ifback to be amended. The consequence is, that the judgment .pronounced by the court below must be reversed. Judgment reversed. 376 LEADING CRIMINAL CASES. Sentence — Illegality of — Writ of Error. The King v. Bourne and Others. 1 May 27, 1837. Sentence — Illegality of — Writ of Error. Where an erroneous judgment is given by an inferior court, on a valid indictment, (as by passing sentence of transportation in a case punishable only with death,) and the defendants bring error, this court can neither pass the proper sentence, nor send back the record to the court below in order that they may do so; but the judgment must be reversed and the defendants discharged. Error from the Monmouthshire Quarter Sessions. The record set out that, at the January Quarter Sessions, 1837, for the county of Monmouth, Andrew Bourne, Francis Bourne, and Thomas Howerth, were jointly indicted, in two counts, the first for burglary and the second for larceny, pleaded not guilty, and were convicted on the first count and acquitted on the second ; and that it was thereupon con- sidered by the court there that Andrew Bourne, for his said offence, should be transported beyond the seas to such place as the king, by the advice, &c, should direct, for seven years ; and Francis Bourne and Thomas Howerth each for the term of his natural life. Error was assigned in several forms; the objection being, in substance, that, upon the count for burglary, judgment of transportation could not be given under stat. 7 and 8 Geo. 4, ch. 29, § 11. See now stat. 7 W. 4, and 1 Vict. ch. 86, §§ 1, 2, 3 ; and the parties prayed that the judgment might be reversed, and that they might be restored to the free law of the land, and to all things which, by reason of the judgment and proceedings aforesaid, they had lost. The crown joined in error, and prayed that this court might proceed to examine the record, and process, and the judgment, and the errors assigned, and that the judgment might be confirmed. But, upon the case now coming on for argument, Sir J. Campbell, Attorney-General, admitted that the judgment was erroneous, and that the only question was, whether this court would, under the circumstances, pass the proper sentence, or remit the case back to the sessions. Peacock; for the prisoners. The order of this court should be that the prisoners be discharged. "The Court of King's Bench never gives judgment upon a conviction in another court." Rex v. Baker, Carth. 6. Rex v. Kenworthy, 1 B. & C. 711, is no authority against 1 7 Adolphus and Ellis. 58. LEADING CEIMINAL CASES. 377 Sentence — Illegality of — Writ of Error. the discharge ; there the sessions had made an order for transporta- tion, but had not followed it up by judgment, and this court ordered them to proceed to judgment. But where a judgment has been given, as in the present case, and is removed by writ of error, this court can do nothing but reverse or affirm. In Rex v. Ellis, 5 B. & C. 395, the sessions had sentenced the prisoner to fourteen years' trans- portation, where the judgment ought not to have been for more than seven ; and this court, distinguishing the case from Rex v. Kenworthy, 1 B. & C. 711, on the ground that no judgment was there passed in the court below, refused to do more than reverse. In Rex v. Lookup, 3 Burr. 1901, where the judgment of the Court of King's Bench was reversed in the House of Lords, this court discharged the defendant on motion. [Patteson, J. There the fatal objection was to the indictment itself. It was so in Rex v. Nicholl, 1 B. & Ad. 21.] In Rex v. Howes, 3 Nev. & M. 462, where the crown omitted to join in error, the prisoners were discharged. [Sir J.\Campbell, Attorney- to the delusion about the spirits, that I attribute to him being a lunatic. When I have had conversation with him on ordinary subjects, I have found him perfectly rational ; but for his delusion, I have seen nothing in his conduct or demeanor in answer- ing questions, otherwise than the demeanor of a sane man." James Hill, a Doctor in Medicine, who had been formerly medical superintendent at the same asylum, stated : " The memory of an in- sane man is not necessarily affected ; it frequently is, but frequently is not. 1 have seen Dr. Haslam's work. I do not agree with his remark that memory appears to be perfectly defective in all cases of insanity ^certainly not; it may probably be so in the generality of cases. Madness is commonly accompanied by a great deal of ex- citability of the brain ; but in some cases it is not. It is very often accompanied by physical irritation of the brain. That is one of the most common causes of madness, either primarily or secondarily. In certain cases of acute madness, the ideas in the mind of a mad- man succeed each other more rapidly than in the mind of a sane man, 'and in a more confused manner ; that is, where there is actual irritation of the brain. It is quite possible for a man to entertain a delusion on one subject, without its affecting his mind generally on other subjects. In most cases where a delusion prevails, and the man is mad, the rest of his mind is affected to some extent. I agree 416 LEADING CRIMINAL CASES. Evidence — Lunatic — Monomania. with Dr. Pritchard that, in monomania, the mind is unsound ; but unsound on one point only. There is no doubt, however, that all the mental faculties are more or less affected ; but the affection is more strongly manifested in some than in others. It is difficult to ascertain, without strict inquiry, the extent of a madman's delu- sions ; they have sometimes the power of concealing their delusions even from their medical attendants, especially after having been fre- quently conversed with about the delusion, and knowing that the delusions are the cause of their detention ; but it is unfrequent. It is a doubtful point whether what they say is not for a particular purpose ; for instance, to obtain liberty. If a madman has an object to answer, he is sometimes capable of concealing his delusions. I have known it, but not as a general rule. They are, probably, capa- ble of a good deal of dissimulation ; many are, I know, but many do not exhibit that tendency. It is common for a certain class of madmen to exhibit a great deal of cunning. Donelly labors under a delusion with respect to spirits. He is, in the strict sense of the word, a lunatic ; inasmuch as he labors under a delusion ; he is not excitable by any means. I have known instances of lunatics con- cealing their delusions ; but in all these cases there is an evident and apparent motive. I have known decided lunatics (not monoma- niacs,) in what are called lucid intervals, capable of going about and managing their own affairs ; in ordinary cases, there is no particular difference between a monomaniac, apart from his particular delu- sion, and an insane person in«a lucid interval. In the instance of a monomaniac, you produce the insanity the moment you touch the particular chord ; it is possible that you might revive insanity in a madman, during a lucid interval, by touching on the same subject, if it is but recent.^ I always found Donelly perfectly rational except on the subject of his particular delusion." Donelly was then called, and, before being sworn, was examined by the prisoner's counsel. He said : " I am fully aware I have a spirit, and 20,000 of them ; they are not all mine. I must inquire. I can where I am. I know which are mine. Those that ascend from my stomach and my head, and also those in my ears. I don't know how many they are. The flesh creates spirits by the palpita- tion of the nerves and the rheumatics ; all are now in my body and round my head ; they speak to me incessantly, particularly at night. That spirits are immortal, I am taught by my religion from my childhood. No matter how faith goes, all live after my death, those that belong to me and those that do not. Satan lives after my death and so does the living God." After more of this kind, he added : " they speak to me instantly ; they are speaking to me now ; they are not separate from me ; they are round me speaking to me LEADING CRIMINAL CASES. 417 Evidence — Lunatic — Monomania. now ; but I can't be a spirit, for I am flesh and blood. They can go in and out through walls and places which I cannot. I go to the grave ; they live hereafter ; I do not, unless, indeed, I've a gift different from my father and mother that I do'nt know. After death, my spirit will ascend to heaven or remain in purgatory. I can prove purgatory. I am a Roman Catholic. I attended Moor- fields, Chelsea chapel, and many other chapels round London. I believe purgatory ; I am taught that in my childhood and infancy. I know what it is to take an oath. My catechism, taught me from my infancy, tells me when it is lawful to swear ; it is wh^ji God's honor, our own or our neighbor's good require it. When man swears, he does it in justifying his neighbor, on a prayer-book or obligation. My ability evades me while I am speaking, for the spirit ascends to my head. When I swear I appeal to the Al- mighty. It is perjury, the breaking of a lawful oath or taking an unlawful one ; he that does it will go to hell for all eternity." He was then sworn, and gave a perfectly collected and rational account of a transaction which he reported himself to have wit- nessed. He was in some doubt as to the day of the week on which it took place, and, on cross-examination, said : " These creatures insist upon it it was Tuesday night, and I think it was Monday;" whereupon he was asked : " Is what you have told us what the spirits told you, or what you recollected without the spirits ; " and he said : " No ; the spirits assist me in speaking of the date. I thought it was Monday, and they told me it was Christmas, Eve, Tuesday ; but I was an eye-witness, an occular witness to the fall to the ground." The question for the opinion of the court is, whether this witness was competent. Sentence has not been passed, but is postponed until this question has been decided ; and the prisoner remains in custody. J. T. Coleridge. April 25, 1851. Collier, for the prisoner. 1. Donelly was, both at the time of the occurrence to which he spoke, and at the trial, non compos mentis, in the legal, medical, and ordinary sense of the term. He was a pau- per inmate of a lunatic asylum, into which he could not have been legally admitted without two medical certificates of his being "in- sane," and a " fit person to be confined," together with an order of justices adjudicating these facts; and if he had been restored to rea- son he must have been discharged. See stats. 8 & 9 Vict. ch. 100, §§ 45, 76, and 8 & 9 Vict. ch. 126, § 51. He was declared, by one of the medical witnesses, to be, "in the strict sense of the term^ a lunatic," laboring under an insane delusion, from which he was 418 LEADING CRIMINAL CASES. Evidence — Lunatic — Monomania. never free, and exhibited the characteristic symptoms of insanity, which are said to be " a confirmed belief in an assumed idea, upon which the patient is always acting, without any apparent bodily disease, to the truth of which he would pertinaciously adhere, in opposition to the plainest evidence of its falsity." Willis on Men- tal Derangement, pp. 20, 21. In Dew v. Clarke, 3 Add. 90, Sir John Nicholl says : " The true criterion of the absence or presence of insanity, I take to be, the absence or presence of what, used in a certain sense of it, is comprisable in a single term — namely, de- lusion. ^Wherever the patient once conceives something extrava- gant to exist, which has still no existence whatever but in his own heated imagination ; and wherever, at the same time, having so conceived, he is incapable of being, or, at least, of being reasoned out of that conception ; such a patient is said to be under a delu- sion in a particular, half-technical sense of the term ; and the ab- sence or presence of delusion, so understood, forms, in my judgment, the true and only test or«criterion of absent or present insanity. In short, I look upon delusion, in this sense of it, and insanity, to be almost, if not altogether, convertible terms ; so that a patient under a delusion, so understood, on any subject or subjects, in any degree, is, for that reason, essentially mad or insane on such subject or sub- jects, in that degree." The same view is adopted by Lord Lynd- hurst, in the same case, in 5 Russ. 166, 168 ; by Dr. Guy, in his " Medical Jurisprudence ; " and in " Taylor's Medical Jurispru- dence,," 1st edition, 627, where it is said : " In monomania, the mind is unsound; not unsound*in one point only, and sound in all other respects, but this unsoundness manifests itself principally with reference to some particular object or person." There may, indeed, be delusions of the senses without insanity ; but. if the patient is aware of the delusion, or capable of being persuaded of it, he is not mad. Nor is mere false reasoning necessarily a proof of madness. Locke says, that madmen generally reason correctly, but their prem- ises are false. An insane delusion is a false impression concerning some matter of fact, which is constantly present to the mind, and out of which it is impossible to reason the patient. Nor was Don- elly, at the time of the occurrence, or at the trial, in a lucid interval. He was, in point of fact, a lunatic, without lucid intervals, for a lucid interval is a space of time " in which no symptom of delusion can be called forth." Wheeler v. Alderson, 3 Hagg. Ec. Rep. 599, per Sir John Nicholl ; and Donelly never ceased to be under the influence of his delusion. See, also, " Haslam on Madness," 46, 47. 2. The authorities are uniform, that, as a gent-ral proposition, a person non compos mentis cannot be examined as a witness, and no qualification is ingrafted upon this DroDosition bv anv text-writer. LEADING CKIMINAL CASES. • 419 Evidence — Lunatic — Monomania. s In Corriyn's Digest, " Testmoigne," A. 1, " Who shall not be a wit- ness," four heads are enumerated. 1. Non compos. 2. Infidel. 3. Person convicted of treason or felony. 4. Any infamous person. To these, interested witnesses -might have been added, but all the heads of objection are resolvable into two. 1. That the witness does not know the truth. 2. That he cannot be depended upon to tell it. A person non compos is included under the first head, and it is said in Cornyn, " A man of non-sane memory shall not be allowed as a witness, as an idiot, a lunatic during his lunacy ; so, one within age of discretion ; so, an infant who does not know the nature of an oath ; but a lunatic may be a witness in lucidis inter- vallis. [Alderson, B. Is not the test of a lunatic's competency the same as that of a child, viz., whether or not he understands the nature of an oath ?] That test does not apply to a lunatic, for re- ligious sentiment is compatible with the most morbid imaginations. In the authority cited, the want of knowledge of the nature of an oath is the limit imposed upon the general rule of a child's inad- missibility, but there is no such limitation to the general proposi- tion, " a lunatic is inadmissible." The test is used with reference to a child, because it may fairly be assumed, that, when the intellect of a child is sufficiently developed to apprehend abstract ideas, such as those of right and wrong, the existence of a God and an unseen world, his perceptions are sufficiently accurate, and his memory sufficiently retentive to» enable him to know the truth respecting matters which he has seen or heard ; nor is there reason for sup- posing him less capable of giving evidence on one subject than on another ; a child whose intellect is so far developed is, therefore, reasonably considered compos mentis ; but the lunatic is confessedly non compos on one subject, if not more — his perceptions or imagina- tion being false ; he, therefore, on one subject, at least, cannot know the truth. The same principle of exclusion of a lunatic from giving evidence, viz. : want of discernment to know the truth, is adopted in Co. Litt. 6 b. 247 a., and Buller's N. P. 232, 233. No case is re- ported in which it has been expressly decided that a lunatic is not admissible, but there are several in which this has been assumed to be a settled maxim of law. In several cases, a lunatic, for the pur- poses of testimony, has been spoken of and treated as though he were dead. Ourrie v. Child, 3 Camp. 282 ; Adams y. Ker, 1 B. & P. 360 ; Bennett v. Taylor, 9 Ves. 381. In Regina v. Eriswell, 3 T. R. 712, where a pauper, who had been examined, afterwards became insane, Buller, J., said : " I con- sider the pauper as dead, he being in such a state as renders it im- possible to examine him." Therefore, where it is stated generally, that "a man is insane, it is assumed that he could not have been examined. 420 LEADING CRIMINAL CASES. Evidence — Lunatic — Monomania. Lord Campbell, C. J. In that case it was assumed, that, owing to the extent of the insanity, the pauper was not in an examinable state. The question is, in what sense the word insane is there used. If it means only a delusion, they are in your favor. If it means total insanity, they are not ? Alderson, B. The question is, was he non compos mentis quoad hoc, or non compos mentis altogether ? The same law is laid down with equal generality by Scotch and Irish text writers. Alison's Practice of the Criminal Law of Scot- land, p. 435, book 13, § 395 ; Gabbett's Criminal Law, vol. 2, p. 473, book 2, ch. 14 ; Of the Evidence, tit. 1, " Incompetency arising from, want of understanding." The same rule prevails in both the civil and the canon law : Mascardus de Probationibus Conclusio, 828, p. 373 ; Grotius de Jure Belli ac Pads, lib. 2, ch, 13, § 2. Lord Campbell, C. J. It is singular, that the Civil Law, which, generally speaking, is a near approach to the perfection of human reason, should be very defective on the subject of evidence. Coleridge, J. It is impossible to take rules of evidence from the Canon Law. It is there declared : A judiciis omnibus tanquam mi- nus apti et idonei ad ferendum testimonium, repelluntur furiosi, amentes, itemque impuberes, servi, perjuri, infames, excommunicato Quin jure decretalium quilibet reus criminia postulatus, etiamsi non- dum confessus, convictus, damnatus et notatus infamia sit, testimo- nium dicere prohibetur, exceptis gravioribus criminibus, qualia sunt simonias et lsesae majestatis in quibus etiam infames testimonium ferunt. Nam testes non tantum infamia sed etiam infamise suspi- cione vacare oportet. Institut. J. Devoti, tit. de Probationibus, XIII. In certis causis testimonium ferre nequeunt foeminas in causis criminalib'us, nisi plane alius desit veritatis pstendendse locus, ac nisi agatur de gravioribus criminibus simonise et leesse majestatis, in quibus etiam minus idonei testes recipiuntur. (Ibid. T. XIV.) . . . Similiter neque amici testimonium dicunt in causis amicorum. Ibid. T. XV. The general proposition, that a person non compos mentis is inad- missible as a witness, is not, in any way, qualified by any reported case. Parke, B., has indeed referred the court to a case, {Morley's case,) in which he admitted as a witness a person who was proved to be, to a certain extent, insane, and, on referring the question to the judges, they were of opinion that the witness was rightly admit- LEADING CRIMINAL CASES. 421 Evidence — Lunatic — Monomania. ted. That case, however, was not argued, nor was any judgment pronounced. 3. It would be inconvenient, as well upon grounds of public pol- icy as upon other grounds, to introduce a modification of the general rule. Unquestionably, the generality of the rule, which exempts a lunatic from responsibility for criminal acts, has been modified, and the question in each case has been said to be, whether or not he was able to distinguish right from wrong, with reference to the criminal act. But the exemption from responsibility for crimes is founded upon a sense of the injustice of punishing a person for doing that which he does not know to be wrong ; a totally different foundation from that of the rule which excludes a lunatic from being a witness ; an exception to the one is not, therefore, necessarily an exception to the other. See Dew v. Clarke, 3 Add. 90. It has been laid down generally, that a lunatic is incapable of filling any office, of being a member of parliament, trustee, executor, &c. ; and his liability on contracts has been limited to those which relate to necessaries sup- plied to himself; contracts which must invariably be for his benefit. It cannot be laid down that all lunatics are admissible as witnesses, and yet, if any are admitted, it will be of the utmost difficulty to define the limits of that insanity which shall exclude. Whether the insanity extend to more than one subject, and what % one subject, can scarcely ever be accurately ascertained. If it be said that the test should be, does the insane delusion relate to the subject-matter of the trial ? it will be found that that test is wholly inapplicable. The judge cannot know what inquiries may become material in the course of any trial, or how far the inquiries made may affect the mind of the lunatic. Whether or not a witness' mind is unsound, will, in most cases, be ascertainable with no great difficulty, and it is more convenient that, when tie fact of lunacy is established, the inquiry should have an end, than that the judge should proceed to investigate whether or not the lunacy is likely to affect something which he cannot know, viz. : the evidence which the witness is to give at the trial. Such an investigation into the nature and extent of the mental unsoundness, must always be a task of great diffi- culty, involving a necessarily painful examination in public of the lunatic himself, possibly attended with the consequences of aggra- vating his malady, and always unsatisfactory, because it ,is impossi- ble to test his insanity with reference to every subject which may arise. In the present case, the medical evidence clearly proved the lunacy of the witness before he was called, and if the rule contended for had been adopted, he would have been spared the examination upon the subject of his delusions, to which he was necessarily sub- jected. Again, if a lunatic witness be examined, and his credibility 36 422 LEADING CRIMINAL CASES. Evidence — Lunatic — Monomania. jl ' w — — left to the jury, it must be permitted to call any number of witnesses to prove the extent of his lunacy ; to be contradicted, possibly, by witnesses to his comparative sanity. Juries have always to decide upon the credibility of witnesses, but their decision on this rests on the demeanor of the witnesses, and the probability of the facts de- posed to ; nor are witnesses allowed to be called as to the character, habits, or modes of thought of another witness, or asked a question as to his credibility, beyond this, " whether they would believe him upon his oath ; " whereas, a conflict of witnesses, as to the extent and nature of the insanity of another witness, would involve the jury in a complicated collateral question, often most difficult to deter- mine. 4. Lastly; assuming that the generality of the rule should be qualified in any cases, the present case does not fall within any qualification of it. Here, the lunatic believed himself at the time of the trial, and frequently, in converse with spirits, who proceeded from his stomach, and sat in his ears, while he was occasionally visited by the spirit of the Queen, and of Luther, and others. These spirits spoke to him on the subject of the trial, and differed from him as to the date of the injuries inflicted upon Barnes ; a fact material to the inquiry, because part of the evidence against the prisoner was, fhat several days had elapsed between the commission of the injuries and his communicating them to the medical officer of the asylum, during which it was assumed that he must have be- come cognizant of them, and would have reported them if he had hot been the person who inflicted them; Under these circumstances, there would be no probability of DoneUy being convicted of perjury, if any part of his evidence was false; and although he gave answers indicating some notion of the nature of an oath, in the abstract, he was practically not subject to the penalties of perjury — a protection to which the party deposed against is always entitled. It is sub- mitted, therefore, upon general principles, as well as upon their ap- plication to the particular facts, this conviction has proceeded upon improper evidence. Sir F. Thesiger, (with him Clarkson and Bodkin?) for the crown, was not called upon. Lord Campbell, C. J. I am glad this case has been reserved, for the matter is of great importance, and ought to be decided. How- ever, after a very learned argument, which I have heard with a great deal of pleasure, I entertain no doubt that the rule is as was laid down by Parke, B., in the unreported case that has been referred to, that wherever a delusion of an insane character exists in anv rjerson LEADING CRIMINAL CASES. 423 Evidence — Lunatic — Monomania. who is called as a witness, it is for the judge to determine whether the person so called has a sufficient sense of religion in his mind, and sufficient understanding of the nature of an Oath, for the jury to decide what amount of credit they will give to his testimony. Various authorities have been referred to, which |^y down the law, that a person non compos mentis is not an admissible witness. But in what sense is the expression non compos mentis employed ? If a person.be so to such an extent as not to understand the nature of an oath, he is not admissible. But a person subject to a considerable amount of insane delusion, may yet be under the sanction of an oath, and capable of giving very material evidence upon the subject- matter under consideration. The just investigation of the truth re- quires such a course as has been pointed out to be pursued, and in the peculiar circumstances of this case, I should have adopted the course which was taken at the trial. Nothing could be stronger than the language of the medical witnesses in this case, to show that the lunatic might safely be admitted as a witness. It has been contended, that the evidence of every monomaniac must be rejected. But that rule would be found, at times, very inconvenient for the innocent as well as for the guilty. The proper test must always be, does the lunatic understand what he is saying, and does he under- stand the obligation of an oath ? The lunatic may be examined himself, that his state of mind may be discovered, and witnesses may be adduced to show in what state of sanity or insanity he actu- ally is ; still, if he can stand the test proposed, the jury must deter- mine all the rest. In a lunatic asylum, the patients are often the only witnesses to outrages upon themselves and others, and there would be impunity for offences committed in such places, if the only persons who can give information were not to be heard. " Aldeeson, B. I quite agree that it is for the judge to say whether the person called as a witness understands the sanction of an oath, and for the jury to say whether they believe his evidence. Here the account of the lunatic himself, and the evidence of the medical witnesses, show that he was properly received as a witness. Coleridge, J. This is an important case. We have been fur- nished, during the argument, with rules drawn from the older au- thorities against the admissibility of a lunatic witness, which are stated without any qualification. It was not necessary for the de- cision of those cases that the rule should be qualified ; and in for- mer times, the question of competency was considered upon much narrower grounds than it is at present, and more in accordance with that of the civil and canon laws. , The evidence in this case left the 424 LEADING CRIMINAL CASES. Evidence — Lunatic — Monomania. matter thus : — there was a disease upon the mind of the witness, operating upon particular subjects, of which the transaction of which he came to speak was not one. He was perfectly sane upon all other things than the particular subject of his delusion. As far as memory was concerned, he was in the position of ordinary persons, and upon religious matters he was remarkably well instructed, so as to understand perfectly the nature and obligation of an oath. If it had appeared, upon his evidence, that his impressions of external objects were so tainted by his delusion that they could not be acted upon, that would have been a ground for the jury to reject or give little effect to his evidence. But this was a matter for them to de- termine. Platt, B., concurred. Talfourd, J. If the proposition, that a person suffering under an insane delusion cannot be a witness, were maintained to the fullest extent, every man subject to the most innocent unreal fancy would be excluded. Martin Luther believed that he had had a personal conflict with the devil ; Dr. Johnson was persuaded that he had heard his mother speak to him after death. In every case the judge must determine, according to the circumstances and extent of the delusion. Unless judgment and discrimination be applied to each particular case, there may be the most disastrous consequences. Lord Campbell, C. J. The rule which has been contended for would have excluded the testimony of Socrates, for he had one spirit always prompting him. Conviction affirmed. That insanity, idiocy, etc., is good cause cation a competent witness; and the court for the rejection of a 'witness, see Arm- may decide from his appearance whethejr strong v. Timmons, 3 Harrington, (Dela- he is in a suitable situation to* testify, ware,) 342; Livingston v. Kiersted, 10 Hartford v. Palmer, 16 Johnson, 142; Johnson, 362; Evans v. Hittich, 7 Whea- Gould v. Crawford, 2 Barr, 89. See ton, 453. In Vermont, it has been said Gebhart v. Shindle, 15 Sergeant & Rawle, that the fact of such incompetency must 235. But a person deaf and dumb maybe be proved, otherwise than by an exami- competent, and may communicate his tes- nation of the witness himself, and that he timony by signs, or by writing. Common- is as incompetent to prove or disprove wealth v. Hill, 14 Massachusetts, 207 ; The that fact as any other ; and it is not error Stale v. De Wolf, 8 Connecticut, 93 ; for the court to refuse an examination of Snyder v. Nations, 5 Blackford, 295 ; such witness on the voir dire, as to his Ruston's case, 1 Leach, C. C. (4th ed.) competency. Robinson v. Dana, 16 Ver- 408; Rex v. Pollock, Archbold, Crim. PL mont, 474. (London ed. 1853,) 223. Neither is a person in a state of intoxi- B. & H. LEADING CRIMINAL CASES. 425 Writ of Error— Only for the Defendant. The People v. Richard S. Corning. 1 December, 1848. Writ of Error — Only for the Defendant. A writ of error will not lie for the government in any criminal case, after judgment for the defendant upon a demurrer to the indictment. The whole case sufficiently appears in the judgment, which was delivered by Bronson, J. Geo. F. Comstock, for plaintiffs in error. J. Ruger, for defendant in error. Bronson, J. The defendant was indicted for perjury in the Court of General Sessions of the county of Onondaga ; and, on demurrer to the indictment, judgment was given in his favor. The district attorney of the county then brought a writ of error in the Supreme Court. The defendant objected to the proceeding, and moved to dismiss the writ of error, on the ground that the people could, not bring error after judgment for the defendant, in a criminal case. The court denied the motion ; and, after examining the case upon the merits, affirmed the judgment of the General Sessions. The dis- trict attorney then brought the record into this court by writ of error, and seeks to reverse both the original judgment, and the judgment of affirmance. The defendant has renewed his objection before us, and moved to dismiss the writ of error ; and the first question to be considered is, whether the people can bring error after a judgment for the defendant, in a criminal case. We are assured by the indefatigable counsel for the defendant, that, upon the most diligent search, he has been unable to find a single reported case, in England, where the king has brought error after a judgment of acquittal ; and Mr. Archbold, in his Practice of the Crown Office, published in 1844, p. 201, in speaking of the cases where a writ of error will lie, says : " Judgment must have been given upon indictment ; and it must be a judgment against the defend- ant ; for there is no instance of error being brought upon a judgment for a defendant, after a*n acquittal." But, since that time, there has l 2 Comstock, 1. 36 • 426 LEADING CEIMINAL CASES. Writ of Error — Only for the Defendant. been a case, the regular report of which has not yet reached us,* where a party charged with crime had judgment in -his favor on a , special verdict, and the crown then brought error in the King's Bench, where the judgment was affirmed. This was in November, 1847. Regina v. Chadivick, 10 Law Rep. 458. If this is, in truth, the only instance in which such a writ of error has ever been brought in England, it is a remarkable fact that nothing appears to have been said, either by court or counsel, touching the right of the crown to have the review. When we get the case more at large, it may furnish some explanation on this point. According to the report in Jones, the writ of error in the Marquis of Winchester's case, Cro. Car. 504, W. Jones, 407, by the name of The King v. Lord St. John, was brought by the crown. But I think it evident that this is a mistake ; and that the writ of error was brought by the defendant. He had not been acquitted ; but had been convicted on an indictment for recusancy, and fined twenty pounds. He had a good reason for wishing to get rid of the judg- ment. Croke says : " The king's attorney signified his majesty's pleasure, that, if it was erroneous, it should be reversed." This was the necessary license to the defendant to bring a writ of error, which at that period, was not grantable ex debito juslitice, but ex gratia re- tris. Rex v. Wilkes, 4 Burr. 2550. Viner and Bacon have "both fol- lowed the report of the case by Croke. Vin. Ab. Error F. pi. 10 ; Bac. Ab. Error, A. 2, 17th Lond. ed. There is a saying of Lord Coke, (3 Inst. 214,) from which an in- ference may be* drawn in favor of the right of the crown to bring error in a criminal case ; and there are several passages in Hale's P. C. (vol. 2, p. 247; 248, 394, 395,) affording ground for a like infer- ence. But nothing is directly affirmed on the subject by either of these learned commentators. All the other writers on criminal law, which 1 have examined, speak pf a writ of error as though it could only be brought by the defendant ; though, with the exception of Archbold, already cited, they do not directly affirm that doctrine. There was an intimation of the judge in The People v. Onondaga General Sessions, 2 Wend. 631, that the people might bring error in a criminal case ; but the question was neither discussed nor decided. Since that time, and within the last sixteen years, writs of error, on behalf of the people, have been brought in a number of instances; and, in some of the cases, the judgments of the court of original jurisdiction were reversed. The People v. Stone, 9 Wend. 182 ; The People v. Fisher, 14 Id. 9 ; The People v. Goon, 15 Id. 277 ; The People v. Brown, 16 Id. 561 ; The People v. Adsil, 2 Hill, 619 ; The People v. Cady, 6 Id. 490 ; The People v. Payne, and other cases, 3 Denio, 88, 91, 99, 101 ; The People, v. Adams, 3 Denio. 190 ; 1 LEADING CRIMINAL CASES. 427 "Writ of Error— Only for the Defendant. *Comst. 173. But in none of the cases was the question either made by counsel, or considered by the court, whether the people could properly bring error. Such, precedents are not of much im- portance. This question was before the Maryland Court of Appeals, in The State v. Buchanan, 5 Har. & John. 317, and it was held that the State might bring error. Although there was evidently a great search for precedents by Mr. "Wirt and the other eminent counsel who appeared for the State, it was said, on the other side, by Mr. Pinkney and his associates, that no authority for such a proceeding had been or could be shown ; and with the exception of some cases in that State, which seem not to have been reported, the judge who delivered the opinion of the court found no authority for the writ of error beyond an inference from the dicta of Lord Hale, to which I have already referred. In Arkansas, the prosecuting attorney may take exceptions on the trial, and bring error on a bill of exceptions ; but this is by force of the statute law of that State. The State v. Graham, 1 Pike's Ark. Rep. 428. I am not aware that such a pro- ceeding has been authorized in any other State. In Illinois, where the matter has not been regulated by statute, the Supreme Court dismissed a writ of error which had been brought by the State's attorney, on the ground that a writ of error would not lie in behalf of the people in a criminal case. The People v. Dill, 1 Scammon's 111. R. 257. In The Commonwealth v. Harrison, 2 Virg. Cas. 202, the General Court of Virginia decided, that a writ of error which had been awarded by a judge in vacation, on the application" of the attorney for the Commonwealth, had improvidently issued, " because no writ of 'error lies in a criminal case for the Common- wealth." In The State v. Reynolds, 2 Haywood's Tenn. R. 110, the Supreme Court of Errors and Appeals of Tennessee, held, that a writ of error, or appeal, in the nature of a writ of error, would not lie for the State in a criminal case. They said : " It is a rule of the common law, that no one shall be brought twice into jeopardy for . one and the same offence. Were it not for this salutary rule, one obnoxious to the government might be harassed and run down by repeated attempts to carry on a prosecution against him. Because of this rule it is, that a new trial cannot be granted in a criminal case, where the defendant is acquitted. A writ of error will lie for the defendant, but not against him. This is a rule of such vital im- portance to the security of the citizen, that it cannot be impaired but by express words ; " and, having come to the conclusion that no such words were used in the statutes of that State, the court dis- missed the appeal. In the Maryland case, already cited, where it was held that a writ 428 LEADING CRIMINAL CASES. "Writ of Error — Only for the Defendant. of error would lie, the court seem not to have been wholly without* apprehension that the power might be used for improper purposes. They said, the right of the State to bring error should be seldom ex- ercised, and never for the purpose of oppression, or without neces- sity ; but they thought an abuse of the right would not be tolerated by public feeling. In my judgment, " public feeling," however cor- rect it may be when the public is well informed, is not the only shield which the citizen ought to have against oppression. The authority which may be exercised over him by officers of the govern- ment, should be defined and regulated by law. We have, in this State, some sixty prosecuting officers, and if they may pursue an individual charged with crime, from court to court, after he has been regularly acquitted, it is not too much to fear, that, in times of high excitement, or through a defect of judgment in the prosecuting offi- cer, an innocent man may sometimes be borne down by the weight of a government prosecution. If the legislature had supposed that such a power existed, I think they would either have abolished it, or made some provision for restricting and regulating its exercise. The weight of authority seems to be against the right of the government tb bring error in a criminal case. The absence of any precedent for it, either here or in England, until within a very recent period, fully counterbalances, if it does not outweigh, the fact, that the right has lately been exercised, in a few instances, without ob- jection. And in three of the four States where the question has been made, the courts have decided that the right does not exist. But this is not all. Many of the rules and maxims of our law are favorable, instead of oppressive, to persons charged with crime. We hold it better that the guilty should escape, than that the innocent should suffer. The. accused cannot be twice put in jeopardy for the same cause. He may sometimes have a new trial ; but the people cannot. The People v. Comstock, 8 Wend. 549. He may take ex- ceptions on the trial, and have a review on a bill of exceptions ; 2 R. S. 736, § 21 ; but no such right is secured to the people. And, what is quite material to the present inquiry, the right to bring a writ of. error is given to the accused, while it is evident that the provision does not extend to the people, or those who carry' on the prosecu- tion. 2 R. S. 737, art. 1. The legislature has not only omitted to confer upon any public officer the power to bring error in a criminal case, but the omission is rendered the more significant by the fact, that the attorney-general has been specially authorized to bring error in civil cases. 2 R. S. 592, § 4. In addition to this, the powers and duties of the attorney-general and district attorneys have been pre- scribed by the legislature ; 1 R. S. 179, art. 5, and p. 383, art. 7 ; and had it been intended that they should brine error in criminal cases, LEADING CEIMINAL CASES. 429 Writ of Error — Only for the Defendant. ' ■ ? ' "it is but reasonable to suppose that such a power would have been included among those which have been conferred. It is made tke duty of the district attorneys to attend certain courts of original ju- risdiction in criminal oases, and conduct all prosecutions for crimes and offences cognizable in such' courts ; 1 R. S. 383, § 89 ; but they are not required to do any thing in the courts of appellate juris- diction, except in cases where the defendant has taken a bill of ex- ceptions, or brought a writ of error. 2 R. S. 736, § 27, and p. 741, § 21. And finally, district attorneys in this State do not hold a com- mon law office ; and they have no powers but such as can be found written in the statute book. I think it quite clear that neither they, nor any other public officer has been vested with authority to bring a writ of error in a criminal case. In speaking of the danger that such a power might be abused, it must not be understood that any improper motive is imputable to the district attorney who brought this writ of error. He followed recent precedents, and did it in a case where he undoubtedly thought the judgment erroneous. If the Supreme Court had reversed the judgment of the General Sessions, and error had then been brought by the defendant, the proper course for this court would have been to reverse the judgment of the Supreme Court, on the ground that it had acted without authority. But, as the original judgment was affirmed, and the de- fendant does not complain of what was done in the Supreme Court, the proper course will be to grant his motion, and dismiss the writ of error. Writ of error dismissed. Commonwealth v. Gilbert Cummings. 1 Same v. James McGinnis. March Term, 1849. Writ of Error — Only for the Defendant. In Massachusetts, a writ of error does not lie, in a criminal case, in behalf of the Common- wealth. The right to file exceptions, in a criminal case, is confined to the defendant. These were indictments for violations of the license law, found at the January term, 1848, of the Municipal Court. 13 Cusbjng, 212. 430 LEADING CRIMINAL CASES. ' •_ ; / Writ of Error — Only for the Defendant. ! In the first entitled case, the defendant pleaded nqlo contendere to one count of the indictment, and then moved in arrjest of judgment for certain formal defects in the indictment. The jcase was there- upon continued for the consideration of the judges/ of the Court of Common Pleas, at their meeting in July ; and, a,t the succeeding term of the Municipal Court, the judgment was (arrested, and the defendant discharged. \ In the second case, the indictment was quashed on the defendant's motion, by the Municipal Court. X The attorney of the Commonwealth for the county or\ Suffolk sued out wrjts of error from this court, in both cases, on ro.ehalf of the Commonwealth ; and the defendants moved that the wr/its of error be dismissed. f This motion was argued at the last November term. I P. S. Wheelock, for the defendants. S. D. Parker, (county attorney,) for the Commonwealtn* Shaw, C. J. These cases come before the court on writs of ehcpr brought by the Commonwealth, to reverse a judgment of acquittal^ on indictments against the defendants, for violations of the law re- specting the sale of spirituous liquors. There is no precedent, we believe, in this Commonwealth, in favor of a writ of error in behalf of the Commonwealth, in a criminal pros- ecution, to reverse a judgment, by which a party criminally prose- cuted has been acquitted. These proceedings are an experiment, which, if successful, will deeply affect the practice in criminal prose- cutions, all of which, with the few exceptions of capital trials, are conducted in courts subordinate to the Supreme Judicial Court. The question, therefore, is a very important one, and deserves the fullest consideration. In favor of sustaining the writ, it seems to be necessary, in every well ordered government, that the decisions and adjudications in matters of law, of all courts and bodies vested with judicial powers, within the jurisdiction of any one State or government, should be brought, in some form, to the final adjudication of a tribunal, having a common jurisdiction over the whole of such State, in order to in- sure uniformity in the judicial administration of the law. This is the more obviously true, in regard to the construction and judicial application of general statutes, made by the legislature for the gov- ernment of the whole State. A worse uncertainty of the law can hardly be conceived, than that where the legislative acts of a govern- ment, by which all persons within its limits ought to be equally LEADING CEIMINAL CASES. 431 Writ of Error — Only for the Defendant. bound and protected, should receive a different final construction, in different judicial tribunals, and thus have a different operation upon those who are alike subject to them. Theoretically, this uniformity is supposed. to be secured in England by the high court of parlia- ment ; and, in some of these States, by a court of errors, with powers prescribed and defined by law. In support of this view of the subject, and of the authority of this court, as a court of errors, in the case in question, the learned coun- sel for the government relied strongly on the large powers vested in this court by the provisions of the Rev. Sts. ch. 81, which are but the revision and reenaetment of preceding statutes. These powers, as expressed in §§ 2, 3, 4, 5, and 6, are certainly very large and un- limited ; and give the court superintending jurisdiction over all judicial proceedings, civil and criminal, at law and in equity, be- tween party and party, and between the Commonwealth and any of the subjects thereof. These considerations would be very strong, and would afford great weight to the argument in favor of allowing the writs of error, if they were wholly unqualified, and stood alone. But there are some qualifications, though briefly expressed, annexed to them ; but, what is more important, they are to be taken in connection with various other legislative provisions, directing when, how, and in what cases, appeals may be taken and prosecuted, exceptions filed, writs of error, habeas corpus, certiorari, mandamus, and the like, sued out, as. of right, or granted on application; thus, in effect and by implication, limiting the generality of the provisions conferring these powers. Thus, looking at the sections in question, the second provides that this, court shall have cognizance of all pleas, &c, which shall be legally brought before them, by original writs, by appeal, writ of error, or otherwise. By the third section, they shall have cognizance of all capital crimes, and of all other crimes, offences, and misde- meanors; which shall be legally brought before them. By the fifth, they shall have power to issue writs of error, certiorari, &c, and all other writs and processes, that shall be necessary to the furtherance of justice, and the regular execution of the laws. We are, therefore, to look to other provisions of the laws, which are very numerous, defining the cases wherein appeals are given, and under what conditions and limitations, where one or another of these various writs and processes is pointed out, as suitable and adapted to particular subjects ; and it is difficult to perceive, why the argument drawn from a consideration of the general superin- tending powers of the court, in support of a writ of error for the Commonwealth, would not apply equallyin favor of appeals. But 432 LEADING CRIMINAL CASES. Writ of Error — Only for the Defendant, we believe it has never been supposed, that an appeal would lie for any party in a criminal case, except where it had been expressly given by statute; nor was it ever claimed, when appeals were largely and liberally allowed in criminal cases, that the Commonwealth could appeal from a judgment of acquittal. Indeed, this last consideration, inasmuch as a writ of error is bwt a qualified mode of appeal, affords a strong argument, from analogy, against the right of the Commonwealth to a writ of error. Thus, in the first statute on the subject, under the Constitution, St. 1782, ch. 14, establishing the Court of General Sessions of the Peace, it was provided, that any person, "against whom a sentence shall be given," may appeal, &c. So, under the revised statutes, where the criminal jurisdiction is vested in the Court of Common Pleas and Municipal Court, the language is the same. Rev. Sts. ch. 82, § 28 : " Any person con- victed in the Court of Common Pleas, upon indictment, for a libel, &c, may appeal therefrom to the Supreme Judicial Court ; " and by Rev. Sts. ch. 82, § 10, " any person convicted on indictment in said (Municipal) Court, for libel, &c, may appeal," &c. A similar pro- vision is contained in the Rev. Sts. ch. 138, § 5 : " Every person con- victed, &c, may appeal," &c. These provisions have been repealed, but they show that whenever appeals have been allowed in criminal cases, it was to the party convicted only, and not to the Common- wealth. Another important question connected with the subject is, whether, in any case, in a criminal prosecution, the Commonwealth can have a bill of exceptions. Without this, there would be no mode, in which, even by the aid of a writ of error, the material ques- tions of law, raised and decided on the trial of a criminal prosecu- tion, could be brought before this court, because they would not appear upon the record. We believe it is understood, that, in Eng- land, though there may have been a few doubtful cases to the con- trary, a bill of exceptions cannot be taken in a criminal case, even by the party accused and brought to trial ; but we are not aware that the right has ever been claimed by the crown, to file a bill of exceptions, with a view to bringing a writ of error, in case of a judg- ment of acquittal. We believe that a bill of exceptions, in favor of the accused, in this Commonwealth, is of comparatively recent origin, and given by statute ; and it may be useful briefly to state that origin. Formerly, all trials, even trials at bar, required a quorum of the judges, and this was' first altered by the statute of 1803, ch. 94, au- thorizing trials in the Supreme Judicial Court, before two judges, and, in certain cases, before one. The fifth section of that statute LEADING CRIMINAL CASES. 433 "Writ of Error — Only for the Defendant. gave a bill of exceptions to any party aggrieved by any opinion, direction, &c, in any action or process of a civil nature. But it further provided, that all indictments and criminal proceedings should be continued and not tried, unless two justices, at least, were present. This statute remained in force but a short time, and was succeeded by the statute of 1804, ch. 105, by which the nisi prius system was finally and fully established. This latter statute di- rected all jury trials in the Supreme Judicial Court to be had before one judge, and allowed exceptions to any party aggrieved by any decision, &c, in any action or process of a civil or criminal nature. This, we believe, is the origin of bills of exceptions in criminal cases, in this Commonwealth. . By the statute of 1820, ch. 79, a Court of Common Pleas for the whole State was established, which was invested with general juris- diction, as well in criminal as in civil cases ; and they were author- ized to hold jury trials by one judge. By this act, a right to allege exceptions, to be allowed and signed by the judge, was extended to either party aggrieved, without limiting it, in express terms, to a civil or criminal proceeding ; with a proviso, however,„that it was not to deprive any party of his right to a writ of error. In these legislative provisions, the fight to except is given to any party aggrieved ; whether this would include the Commonwealth, not being named, or not, it is not perhaps now necessary to decide ; because we believe, that either on account of the analogy to appeals, or because not in terms given to the Commonwealth, or for some other reason, it never was claimed, whilst these provisions were in force, that the Commonwealth could allege exceptions in criminal cases. But, by the statute of 1832, ch. 130, § 5, enlarging and more exactly defining the criminal jurisdiction of the Court of Common Pleas, in criminal cases, the right to allege exceptions is restricted to . " any person, after conviction, thinking himself aggrieved," and by the Rev. Sts. ch. 138, § 11, the right is allowed to any person who shall be convicted of an offence, &c, " being aggrieved by any opin- ion, direction, or judgment in matter of law." It is, therefore, very clear, that, as the law now stands, no bill of exceptions can be claimed by the public prosecutor for the Common- wealth, on the trial of a criminal case. Indeed, if it were otherwise, it would change the existing practice, and oblige the public prose- cutor to note his objections to all interlocutory directions and decis- ions of the judge, during the progress of a trial, and would require the judge to take notice of them, with a view to a bill of exceptions ; because it cannot be known until after verdict, that it may not be necessary to prepare and allow a bill of exceptions. The right of the Commonwealth to sustain a writ of error, in a 37 434 LEADING CRIMINAL CASES. Writ of Error — Only for the Defendant. criminal case, does not, indeed, depend on their right to allege ex- ceptions ; but the want of the latter may afford some ground of argument, because the right to a writ of error would be of little avail in bringing questions of law before the court for revision, without the power of stating them fully in a bill of exceptions," so as to come up with the record. This consideration has a tendency to show, that the intention of the legislature, in limiting the right to file ex- ceptions to the party accused, was also to limit, in like manner, the right to bring a writ of error. As far as English authorities go, they are cited in the case here- after mentioned. A very recent case, Regina v. Chadwick, 11 Ad. & El. N. S. 205, was brought before the Queen's Bench, by a writ of error, at the suit of the crown, to reverse a judgment in favor of the defendant, on an indictment for bigamy. This was the cele- brated case in which it was decided that a marriage with a deceased wife's sister was unlawful and void. No question was raised as to whether the crown could have a writ of error, and nothing was said on the subject at the bar or by the court. It may, however, be re- marked, that, in this case, the whole question was upon the record by a special verdict ; so that, if the judgment below had been re- versed, the court above might have rendered a judgment against the defendant on the original indictment. This distinction has been sometimes considered as of importance, as to the judgment to be entered or reversed. Mellen v. Moore, 1 B. & P. 30 ; Phillips v. Bury, 1 Ld. Raym. 10. But, as the judgment in Regina v. Chad- wick was not reversed, and the grounds on which the writ of error was maintained are not stated, the case is not of very strong au- thority. . In the State of Maryland, it has been decided, that a writ of error will lie for the State in a criminal prosecution. The State v. Buchan- an, 5 Har. & Johns. 317* But the case appears to have been decided mainly upon the authority of several previous cases in that State, which have not been reported, and the grounds of which do not appear. In the case of The United Stales v. Simms, 1 Cranch, 251, a writ of error for the United States was sustained, on a judgment for the defendant, on an indictment. But in the subsequent case of The United States v. More,3 Cranch, 174, it was stated by Marshall, C. J., that no question was made in the first case, as to the jurisdiction of the court ; that the decision passed sub silentio, and was not a binding authority ; and they decided that a writ of error would not lie on behalf of the United States in a> criminal case. In New York, there were several cases, in which writs of error had been brought in behalf of the peoDle. in criminal cases, and in some LEADING CRIMINAL CASES. 435 Writ of Error— Only for the Defendant. of them judgments were reversed. But, in a very recent case, The People v. Coming, 2 Comstock, 1, the subject was fully considered and the authorities elaborately reviewed, in the Court of Appeals, and that court came to the decision, that a writ of error would not lie in behalf of the people, after a judgment for the defendant. It is not necessary now to state the grounds of that decision more at large ; it is sufficient to refer to it. as a full revision of all the au- thorities on the subject, both English and American. This court are of opinion, that the weight of authority is adverse to the right of the Commonwealth to maintain a writ of error in a criminal case, and that, in every view which we have been able to take of the subject, theselfomts of error must be dismissed. The full examination of this subject in the two selected cases, renders further discussion of it unnecessary. The judg- ment for the defendant, arose in a differ- ent form, in each case, and in neither was the judgment founded on a verdict of a jury. In The People v. Corning, the judgment sought to be reversed was rendered on a demurrer to the in- dictment ; while, in Cummings's case, it was upon a motion in arrest of judgment for formal defects in the indictment ; and in Mc Ginnis's case it was upon a motion to quash. The State v. Jones, 7 Georgia, 422, was also a writ of error to reverse a judgment quashing an indictment, and was decided the same way as Mc Ginnis's case. It seems, therefore, immaterial upon what ground judgment is entered for the defend- ant; it cannot in any case be reviewed on a writ of error. If a judgment upon for- mal defects cannot be reviewed, a fortiori, it would seem that one founded on a ver- dict of acquittal ought to be final. The Stale v. Anderson, 3 Smedes & Marshall, 751. And the denial of the writ of error to the government is but the applica- tion of the principle, Nemo debet vis vex- ari pro una et eadem causa; or, as ex- pressed in the Constitution of the United States, no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb. The spirit of this rule equally forbids the government to review its errors either by appeal, new trial, or bill of exceptions. One judgment for the defendant, if not obtained through his fraud, is final. That a new trial will not be granted- on behalf of the government, after verdict of acquittal, was decided in Rex v. Bear, 2 Salkeld, 646. See, also, Rex v. Reynell, 6 East, 315, in 1805, where the motion was made because the verdict was against the evidence. Rex v. Mann, 4 Maule & Selwyn, 337 ; and Rex x. Davis, 1 Shower, 336 ; 12 Modern, 9, are to the same effect. And the same rule prevails if the acquit- tal was owing to a misdirection of the judge. Rex v. Cohen, 1 Starkie, 516. See, also, The State v. De Hart, 2 Halsted, 172; The State v. Taylor, I Hawks, 462; The State v. Riley, 2 Brevard, 444 ; The State v. Wright, 3 .Brevard, 431 ; The State v. Kanofise, 1 Spencer, 115; The State v. Anderson, 3 Smedes & Marshall, 751 ; The State v. Butris, 3 Texas,. 118 ; The People v. Comstock, 8 Wendell, 549 ; The State v. Brown, 16 Connecticut, 54. But, in a late case in England, in an in- dictment for obstructing a public way, a new trial was granted for misdirection, after a verdict for the defendant. Regina v. Chorley, 12 Queen's Bench, 515. No discussion was had in this case whether a new trial could be granted after verdict for the defendant ; and it cannot, from this case, be safely assumed that such is the English practice in proceedings strictly criminal. See Regina v. Leigh, 10 Adol- pbus & Ellis, 406, Lord Denman, C. J. l# Neither does any appeal lie for the gov- 436 LEADING CEIMINAL CASES. Larceny — Lucri Causa. eminent. The State v. Martin, 3 Hawks, 381 ; The State v. Solomons, and The Slate v. Hitchcock, 6 Yerger, 360; The State v. Burn's, 3 Texas, 118 ; The Slate v. Denton, 1 English, 259. Nor a bill of exceptions ; for, at common law, no right of exception existed, even for a defend-, ant, in criminal cases ; and the allowance of it in America, is dependent wholly on statute. Sex v. Vane, 1 Levinz, 68 ; Kelyng, 15 ; Regina v. Preston, Cas. temp. Hardwicke, 236; Regina v. Mc- Donnell, 1 Hudson & Brooke, 439 ; The People v. Holbrook, 13 Johnson, 90 ; Mid- dleton v. The Commonwealth, 2 Watts, 286 ; The United States v. Gibert, 2 Sum- ner, 19 ; The State v. Hand, 1 English, 169 ; VermUyea, ex parte, 6 Cowen, 555 ; Regina v. Price, 2 Cox, C. C. 118. In England, to this day, a defendant has no right to file a bill of exceptions. Regina v. Alleyne, 29 Eng. Law and Eq. B,. 180, Lord Campbell, C. J. And there is no distinction, in this respect, between felo- nies and misdemeanors, in the statute of Westminster the second, 1 stat. 13 Ed- ward, 1, ch. 31 ; Regina v. Alleyne. But see Rex v. Crevy, cited by Lord Broug- ham, in The King v. Simmonds, 1 House of Lords Cases, 764 ; King v. The Queen, 14 Queen's Bench, 38. Since the decision of Coming's case, in New York, an act has been passed in that State, providing that writs of error to re- view any judgment rendered in favor of any defendant, upon any indictment for any criminal offence, except where such defendant shall have been acquitted by a jury, may be brought, in behalf of the people of this State, by the district attor- ney of the county where such judgment shall be i^ndered. This statute includes all judgments in favor of defendants charged with crime, except where an acquittal by a jury has occurred. And a judgment rendered after that act took effect, although in a prosecution already commenced, may be reviewed on error. The People v. Clark, 3 Selden, 385. But a judgment rendered prior to that act cannot be reversed. The People v. Car- nal, 2 Selden, 463. Similar statutes exist in some other States, as also enactments, giving the gov- ernment a right to an appeal and bill of exceptions. E. H. B. Rex v. William Cabbage. 1 Easter Term, 1815. Larceny — Lucri Causa. To make a taking felonious, it is not necessary that it should be done lucri causd ; taking with an intent to destroy will be sufficient to constitute this offence, if done to serve the prisoner or another person, though not in a pecuniary way. The prisoner was tried before Thomson, C. B., at the Lent assizes for the county of Lancaster, in the year 1815, on an indict- ment for feloniously stealing, taking, and leading away a gelding, the property of John Camplin. The second count charged the prisoner with feloniously, unlaw- 1 Russell & Ryan, C. C. 292. LEADING CRIMINAL CASES. 437 Larceny — Lucri Causa. fully, wilfully, and maliciously, killing and destroying a gelding, the property of the said John Camplin, against the statute, &c. The counsel for the prosecution elected to proceed upon the first count. It appeared that the gelding in question was missed by the pros- ecutor from his stables, on Monday the 28th 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, and who knew it to be his. The horse's forehead was very much bruised, and a bone struck 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 prosecutor 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, Cabbage, was taken into custody on the 27th March, 1815 ; and on his apprehension he said that he went in company with Ann 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 causd. Thomson, C. B., overruled the objection, and the prisoner was convicted 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, viz. : Richards, B. 5 Bayley, J., Chambre, J., Thomson, C. B., Gibbs, C. J., and Lord Ellenborough, held it not essential to consti- tute the offence of 'larceny, that the taking should be lucri causd ; they thought a taking fraudulently, with an attempt wholly to deprive 37* 438 LEADING CRIMINAL CASES. Larceny — Lucri Causa. 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 destruction of this animal, might be deemed a benefit, or lucri causd. Dallas, J., Wood, B., Graham, B., Le Blanc, J., and Heath, J., thought the conviction wrong. Rex v. Richard Morfit. 1 Easter Term, 1816. Larceny — Lucri Causa. A servant clandestinely taking his master's corn, though to give to his master's horses, is guilty of larceny. The prisoners were tried before Mr. Justice Abbott, at the Maid- stone Lent assizes, in the year 1816, upon an indictment for felon- iously 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 prison- ers 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 by 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 delivered out as usual, and nearly that quan- tity 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 gran- ary ; and also whether they intended to give them to Mr. Wimble's horses. The jury answered both questions in the affirmative. Mr. Justice Bayley had, at the same assizes, directed a verdict, of acquittal under circumstances of the like nature ; but Abbott, J., was informed that the late Mr. Justice Heath had many times held this i Russell & R— " " ■""• LEADING CRIMINAL CASES. 439 Larceny — Lucri Caus&. offence to be larceny, and that there had been several convictions before him ; and also that to a question put by the grand jury at Maidstone 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 ques- tion to all the judges, the offence being a very common one ; a ver- dict 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 felony ; that the pur- pose 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 additional 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 his horses, but the men's labor was lessened, so that the lucri causd, 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. In Sanders's edition of the Institutes of Justinian, (London, 1853,) which is one of the most elegant and finished productions which has recently issued from the English press, lib. 4, tit. 1, § 1, larceny is defined as follows : Furtum est contrectatio rei fraud- ulosa, vel ipsius rei, vel etiam usus ejus possessionve. To this definition the learn- ed editor has appended the following note : The definition of theft includes the term contrectatio rei, to show that evil intent is not sufficient; there must be an actual touching or seizing of the thing ; fraud- ulosa, to show that the thing must be seized with evil intent, and rei, usus, pos- sessionis, to show the different interests in a thino 1 that might be the subject of theft. It might seem that it would have made the definition more complete to have said contrectatio rei alienee. Perhaps the word alienee was left out because it was quite possible that the dominus or real owner of a thing should commit a theft in taking it from the possessor, as, for instance, in the case of a debtor stealing a thing given in pledge ; and yet the res "was scarcely aliena to the dominus. Many texts, after the words contrectatio fraudulosa, add lucri faciendi gratia, i. e. with a design to profit by the act, whether the profit be that of gaining a benefit for one's self, or that .of inflicting an injury on another. These words are found in the passage of the Digest (xlvii. 2, 1, 3), from which this definition of theft is taken, but the authority of the manuscripts seems against admitting them here. Bracton, lib. 3, ch. 32, § 1, defines lar- ceny as Contrectatio rei aliense fraud- ulenta, cum animo furandi, invito illo dom- ino cujas res ilia fuerit. Fleta, lib. 1, ch. 38, § 1 , defines it in precisely the same words. East, citing the above definition from the Institutes, defines larceny to be "the wrongful or fraudulent taking and carrying 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 own property, without the consent of the owner." 2 East, P. C. 553. But in a very recent English case, Mr. Baron Parke said that this definition, which was the most complete of any, was defective, in not stating what is the meaning of the word " felonious," which, he said, " may be explained to mean, that there is no color of right or excuse for the act ; and 440 LEADING CEIMINAL CASES. Larceny — Lucri Causa. the ' intent' must be to deprive the owner, not temporarily, but permanently, of his property." Regina v. Holloway, 2 Car- rington & Kirwan, 942 ; 1 Denison, C. C. 370 ; 1 Temple & Mew, C. C. 40, (1849.) See also Regina v. Thurborn, 1 Denison, C. C. 387 ; Temple & Mew, C. C. 67 ; 2 Carrington & Kirwan, 831. Regina v. Privett, 1 Denison, C. C. 193; 2 Carrington & Kirwan, 114 ; 2 Cox, C. C. 40, establishes the doctrine, that even if the intent of obtaining a private benefit be negatived, the crime is larceny. In this case it was proved that the prisoners took from the floor of a barn, in the presence of the thrasher, five sacks of unwinnowed oats, and secreted them in a loft there, for the purpose of giving them to their mas- ter's 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 lar- ceny. The greater part of the judges (exclusive of Erie, J., and Piatt, B.,) ap- peared to think that this was larceny, be- cause the prisoners took the oats know- ingly 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 larceny,) 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 beneficial to him. But all agreed that they were bound by the pre- vious decisions, to hold this to be larceny, though several of them expressed a doubt if they should have so decided, if the mat- ter were res Integra. Erie, J., and Piatt, 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 essential that the prisoner should intend to deprive the owner of the property in the goods, which he could not if he meant to apply it to his use. In Regina v. Jones, 1 Denison, C. C. 188; 2 Carrington & Kirwan, 236.; 2 Cox, C. C. 6 ; the prisoner -was indicted, for stealing, at Boss, from an officer of the post-office, a post letter. The prisoner had been cook in the employ of Mrs. Gar- bett, of Upton Bishop, whose service she was about to leave, having herself jgiven notice to do so, and was in treaty with a Mrs. Dangerfield, of Cheltenhan, for a similar situation ; Mrs. Dangerfield had consented to employ her if a satisfactory answer from Mrs. Garbett should be re- turned to a letter, to be written for the purpose of making inquiries respecting her character. This letter, the subject of the present indictment, was written by Mrs. Dangerfield, directed to Mrs. Gar- bett, and posted at Cheltenham, and was from thence duly forwarded to the post- office 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-office at Boss, and there applied to the clerk on duty for the letter from Chel- tenham, 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 informed that the one letter by itself could not be given, she first took from the office all the letters for Mr. and Mrs. Garbett, includ- ing 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 Boss 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 de- LEADING CRIMINAL CASES. 441 Larceny — Lucri Causd. stroying of the letter under these circum- stances amounted to larceny. Afterwards all the judges present, except Piatt, B., were of opinion that this was larceny ; for, supposing that it was a necessary ingredi- ent in that crime, that it should be done lucri causa, (which was not admitted,) there were sufficient advantages to be ob- tained by the prisoner in making away with the written character. Piatt, B., doubted whether the prisoner was guilty of the offence of larceny. In Regina v. Richards, 1 Carrington & Kirwan, 532, the prisoner was indicted for stealing iron, the property of his masters. The iron alleged jto have been stolen was an iron axle of a tram wagon, and it was proved that the prisoner was employed as a pudler by the prosecutors, who were part- ners in an iron company; and that the pudlers employed by the company were in the habit of receiving a certain quantity of pig iron which they were to put into the furnaces, and they were paid for their work according to the weight of the iron drawn out of the furnace and formed into puddle bars. The prisoner was detected by the foreman of the works in putting an iron axle, belonging to the company, (which was not pig iron,) into the furnace with the pig iron. The foreman stated, that the value of the axle to the company was about 7s., and he had calculated that the gain to the prisoner by putting it in the furnace and melting it would be, ac- cording to the mode adopted for paying for the work, a fraction more than a penny. Tindal, C. J., said; I doubt whether the act of the prisoner, though unquestionably fraudulent and wrongful, comes within the definition of a larceny, as the iron was to come back to the own- ers in the same substance, though in ano- ther form. I shall leave it to the jury to say, whether the prisoner put the axle into the furnace with a felonious intent, to convert it to a purpose for his own profit ; for, if he did so, this was a larceny. His lordship left this question to the jury. Where, upon an indictment for larceny, it appeared that the prisoner, who was the servant of the prosecutor, had taken corn, to give to his master's horses, under pre- cisely similar circumstances to those which occurred in Rex v. Morfit, Patteson, J., held, that it was larceny, and after con- sulting Cresswell, J., thought that Rex v. Morfit was too recently decided by a large majority of the judges to take their opin- ions again upon that point. Regina v. Hand- ley, Carrington & Marshman, 547, (1842.) In The State v. Hawkins, 8 Porter, 461, (1839,) which was an indictment for stealing a slave, Ormond, J., sajd : " It appears to us, that Rex v. Cabbage, and Rex v. Morfit cannot be considered as authority in this country. The shadowy and almost imaginary distinctions upon which they rest, are at war with that precision and certainty which is the boast of the criminal law of England. It is also to be remarked, that they are decisions made by a bare majority of the judges; and of that majority, a considerable por- tion, for reasons, it is true, which do not seem entitled to much weight, held, that the lucri causd, was present in those cases." See also Ex parte Jachlin, 13 Law Journal, M. C. 139, (1844); Regina v. Gruncell, 9 Carrington & Payne, 365 ; Regina v. Godfrey, 8 Carrington & Payne, 563. H. 442 LEADING CRIMINAL CASES. Indecent Exposure — Public Place — Ad commune nocumentum. Regina v. Webb. 1 December 9, 1848. Indecent Exposure — Public Place — Ad commune nocumentum. An indecent exposure in a place of public resort, if actually seen only by one person, no other person being in a position to see it, is not a common nuisance. The averment in an indictment, " in the sight and view of B.," does not mean that B. actually saw it, but only that he might have seen it had he chanced to look. Quwre, whether an averment in an indictment " that A. unlawfully, &c., did expose and exhibit, &c, in the presence of B. and divers others, &o., then and there being, &c," is sufficient in arrest of judgment ? The court created by stat. 11 & 12 Vict. ch. 78, has jurisdiction in questions arising on the record, when reserved at the trial by the judge. James Webb was indicted at the Clerkenwell sessions for an inde- cent exposure. On the trial it was proved by the prosecutrix, that she was taking care of a public house, and standing behind the bar, through which was the public passage from the entrance door of the public house to the bar parlor ; that he conducted himself in an offensive manner, but not amounting to an indecent exposure, and whilst so doing several persons passed to and fro ; that he then took out and exposed his private parts to her, and thereupon she directly ran off and told her husband. That there was no one in sight but herself at the time when she saw his private parts exposed. Two points were made : — First. That an indecent exposure in the bar of a public house is not an indictable offence. Second. Assuming the place sufficient, there must be more than one person present at the Time of the exposure, or the offence is not complete. The jury, under the direction of the chairman, found the prisoner guilty, subject to the opinion of the judges on the above point. The judgment was respited. COPY OF INDICTMENT. Middlesex. The jurors for our lady the queen upon their oath pre- sent, that James Webb, late of the parish of St. Margaret, Westmin- ster, in the county of Middlesex, laborer, on the second day of October, ' 1 Denison, C. C. 338 ; 3 Cox, C. C. 183; 2 Carrington & Kirwan, 983 ; 1 Temple & Mew, C. C. 23. LEADING CRIMINAL CASES. 443 Indecent Exposure — Public Place — Ad commune nocumentum. in the twelfth year of the reign of our sovereign lady Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, with force and arms at the parish aforesaid, in a certain common public place within a certain victualling alehouse there situate, unlawfully, wilfully, publicly, and indecently did expose and exhibit his private parts naked and uncovered in the presence of Mary Ann, the wife of Edward Cher- rill, and of divers others of the liege subjects of our lady the queen, then and there being, for the space of divers, to wit, ten minutes, to the great damage and common nuisance of the said Mary Ann Cherrill and the said other liege subjects of our said lady the queen, then and there being, to the great encouragement of indecency and immorality and against the peace of our said lady the queen, her crown and dignity. a This case was argued on 9th December, 1848, before Pollock, C. B., Parke, B., Patteson, J., Cresswell, J., V. Williams, J., in the Exchequer Chamber. Clarkson for the prisoner. In this case either the judgment must be arrested, because the indictment is bad for not alleging any indictable offence, or a verdict of not guilty entered, because the indictment, if good, is not supported by the evidence. Parke, B., doubted whether this court was empowered by stat. 11 & 12 Vict. ch. 78, to take cognizance of defects apparent on the face of the record ; but after consideration it was held in the affirmative. Clarkson. To amount to a nuisance at common law, the act charged must have been done in the sight of the public. In East's Pleas of the Crown, ch. 1, § 1, it is laid down that " all scandalous and open breaches of morality, exhibited in the face of the people, are indictable at common law; such as was the conduct of one who exposed himself naked to the public view from a balcony in Covent Garden. Sedley's case, 1 Sid. 168, 1 conf. Regina v. Crunden, 1 In this case; the defendant was indicted — that he did expose his naked body in a balcony, in Covent Garden, to a great multitude of people, and there did such things, and spoke such words (disclosing the particulars) ; and the indictment being openly read to him in court, the justices told him, that although there was then no Star Cham- ber, they would, nevertheless, let him know that this court [the King's Bench] was the Custus Morum of all the king's subjects, and that it was high time to punish such profane actions perpetrated against all modesty, &c. The defendant confessed the 444 LEADING CEIMINAL CASES. Indecent Exposure — Public Place — Ad commune nocumentum. 2 Camp. 89 j 1 Hawkins P. C, Curwood's ed., bk. 1, ch. 26, p. 358. There are two objections to this indictment. First, The words " expose and exhibit in the presence of," do not necessarily mean " shew to " the person in whose presence the exhibition takes place ; it might be done in the dark, or the woman's back might be turned. Even if " exhibit to," be taken primd facie to mean " exhibit in the sight of," the words "exhibit in the presence of" are not equivalent; the words "in the presence of " seem to imply something different from " in the sight of; " the party in whose presence it was done might be blind. Secondly, It seems questionable whether the averment that the exposure was in " a certain common public place within a certain victualling house" imports such a public exposure as amounts to a nuisance at common law. Patteson, J. The nature of the house may make a difference; as where an obscene print is exhibited in a shop. Clarkson. Then as to the evidence. It is stated in the case that indictment, and was sentenced to pay a fine of 2,000 marks, be imprisoned one week, without bail, and to give security for his good behavior for three years. (1 Keble, 620, S. C.) It appears, from observations made by the court, in Regina v. Read, 1 For- tescue, 98, and also in Rex v. Curl, Strange, 788, that Sedley also committed divers assaults upon the people. In Regina v. Read, 1 Fortescue, 98, which was an action for printing a lascivious and obscene libel, but which was not directed against any particular person, Powell, J., observed : "There is no law to punish this offence ; I wish there was, but we can- not make law ; it, indeed, tends to the corruption of good manners, but that is not sufficient for us to punish it." And he there also refers to Lady Purleck's case, when the Star Chamber quashed the indictment because it was for matters of bawdry. (See Popham, 208.) The case of Regina v. Read appears, however, to, have been overruled in Rex v. Curl, Strange, 788. See the judgment of Fortescue, J., in that case. To what extent, and in what cases, the Court of Queen's Bench may be the custos morum of all the king's subjects, and have the superintending of cases contra bonos mores, is, from the cases, very undefined ; it may,.however, be perhaps gathered from them, that no indictment will lie where the act is not publicly done, or so done in private that it might become public. See also Rex v. Delaval, 3 Burrow, 1437; Rex v. Gallard 1 Session Cases, 281 ; 4 Black. Comm. 64. i M'Donald, C. B., in giving judgment, observed, "lean entertain no doubt, that the defendant, by exposing his naked person on the occasion alluded to, was guilty of a misdemeanor. The law will not tolerate such an exhibition. Whatever his intention might be, the necessary tendency of his conduct was to outrage decency, and to corrupt the public morals. Nor is it any justification that bathing at this spot might, a few years ago, be innocent. For anything that I know a man might, a few years ago, have harmlessly danced naked in the fields beyond Montague House, but it will scarcely be said, that any one might now do so with impunity in Russell Square. Whatever place becomes the habitation of civilized man, there the laws of decency must be enforced." LEADING CRIMINAL CASES. 445 Indecent Exposure — Public Place — Ad commune nocumentum. the exposure was only in the presence of one woman ; that no one else was in sight. Therefore the offence proved was not indictable, but summarily punishable under the Vagrant Act, 5 Geo. 4, ch. 83, § 4, which provides that •' every person wilfully, openly, lewdly, and obscenely exposing his person in any street, road, or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female," shall be summarily punished. In Watson's case, 2 Cox, C. C. 376, 1 the indictment contained two counts: — 'First, i COURT OF QUEEN'S BENCH. Regina v. John Watson. December 3, 1847. Indecent Exposure. An indictment charging the defendant with having indecently exposed himself in a certain public and open place, in the presence of one person only, cannot be sustained, whether that person be a female or not. This was an indictment against the defendant for an indecent exposure. The first count was as follows : — Middlesex, to wit : — The jurors for our lady the queen, on their oath, present that J. Watson, &c, in a certain open and public place, &c, and in the sight and to the view of one Lydia Crickmore, a female of tender years, then and there wilfully, unlawfully, openly, and indecently, did expose the naked private parts of him, the said Watson, &c. The second count charged the offence as committed in the presence of divers persons. From the evidence it appeared that the exposure was in the presence of Lydia Crick- more alone, as alleged in the first count. The prisoner was, therefore, found guilty upon the first count, and not guilty upon the second. A rule nisi had been obtained in arrest of judgment, against which Willes showed cause. The objection to the indictment is, that although the act was one of gross indecency, yet as only one person was present, it is no offence in law. Thus, if it were committed in the presence of twenty persons, seriatim, however injurious that might be to public morals, it would not be punishable. It is laid down generally in the books, that all open lewdness, grossly scandalous, is punishable by indictment. (See cases cited, Burns's Justice, title " Lewdness.") [Coleridge, J. If this indictment is good, every exposure to a female in a public place would be indictable. There are numerous offences against morality which the laws cannot reach.] If clearly injurious to morals, it ought to be punishable. Cases of this kind are rare. Sedley's case, 1 Strange, 168, was, perhaps, the earliest. [Coleridge, J. Is there any precedent where "divers " was omitted ?] Sir F. Thesiger and Parry "contra, were not heard. Lord Denman, C. J. The general rule is, that a nuisance must be public ; that is, to the injury or offence of several. There is no precedent of such an indictment as the present, and we are not inclined to make One. Rule absolute. 38 446 LEADING CRIMINAL CASES. Indecent Exposure — Public Place — Ad commune nocumentum. Charging the offence to have been committed in the sight and to the view of one Lydia Crickmore, only.. Second, In the sight of divers persons. It was there held that the second count was not proved, as there was no evidence that the alleged exposure was in the sight of any persons other than Lydia Crickmore — and that the first count was bad, on the ground that exposure to one person only was not an indictable offence, whether that person be a female or no. Prendergast, contra. The indictment is sufficient: the words " publicly and indecently expose and exhibit in the presence of," in their obvious and natural sense, mean " expose to view." Pollock, C. B. The argument on the other side might be pushed to the length that it was necessary in an indictment of this sort to negative the supposition of the person in whose presence the expo- sure took place being blind. Patteson, J. The ordinary form of indictments of this kind runs thus — " In the presence of divers liege subjects, &c, then arjd there being, and within sight and view of divers other liege subjects, &c, then and there passing, &c, unlawfully, &c, did expose to the view, &c." Why should " to the view " be omitted here ? Prendergast. In Regina v. Watson, the offence charged in the first count was not indictable, because it clearly only amounted to a solicitation of chastity ; it was not indictable even though done in a public place; the indictment concluded, "to the great injury and corruption of the morals of the said Lydia Crickmore ; " it was not therefore an outrage upon the public or a violation of general decency, however gross an offence it might have been against the prosecutrix as an individual. But here it is expressly averred to be " to the common nuisance of the said Mary Ann Cherrill, and of divers other liege subjects of our lady the queen." Parke, B. Is " divers other " sufficient ? V. Williams, J. An indictment against a common scold is well concluded, " to the common nuisance of divers of her Majesty's liege subjects." Cresswell, J. An indictment for the non-repair of a highway always concludes to the common nuisance of all her Majesty's liege subjects going, &c, along the queen's common highways aforesaid. However, in Regina v. Lloyd, 4 Esp. 199, Lord Ellenborough seems LEADING CKIMINAL CASES. 447 Indecent Exposure — Public Place — Ad commune noatmentum. to intimate that, if the nuisance there charged had been proved to have been more extensive, it would have been indictable, even though it had not amounted to a general public nuisance in the ordinary sense of the expression. He held that as the noise there complained of only affected two or three staircases of Clifford's Inn, it was not sufficiently extensive to support an indictment. V. Williams, J., referred to Hawkins' Pleas of the Crown, bk. 1, ch. 32, § 5.' Prendergast. The indictment in Regina v. Orunden, 2 Camp. 89, seems to have been in the same form as this. The defendant was charged with having " indecently exposed his person in the presence of divers of his Majesty's liege subjects." One instance is sufficient evidence to support a conviction for keeping a common bawdy-house; so an exposure to one person is good evidence of a general intention to expose to the public. If the prisoner had exhibited an indecent picture to one person only in a public place, that would clearly have been indictable. Can it be said that an indecent exposure of his person to that same party in a public place would not be so ? Parke, B. The two might be distinguished on the same principle as oral and written slander. The one would be transitory, the other permanent. Prendergast. As to the evidence, it is clear that the act of the prisoner was not a mere solicitation of chastity, but amounted to a public nuisance. The woman was in a public passage, engaged in 1 Hawkins there says — " Also it hath been said, that an indictment of a common scold, by the words communis rixatrix, which seems to be precisely necessary in every indictment of this kind, is good, though it conclude ad commune nocumentum diverso- rum, instead of omnium, frc. ; perhaps for this reason, because "a common scold cannot but be a common nuisance. And upon the like ground it seems that it may probably be argued, that an indictment for laying logs in the stream of a navigable public river, ml nocumentum J. S. may be maintained, because it cannot but be a common nuisance. And if the law be so in this case, why should not also an indictment, setting forth a nuisance to a way, and expressly and unexceptionally showing it to be a highway, be good, notwithstanding it conclude in nocumentum d'wersorum ligeorum, §•<;., without saying omnium; for why should such a conclusion be more necessary in an indictment, for one kind of nuisance than for any other ? And perhaps the authorities which seem to contradict this opinion might go upon this reason, that in the body of the indictment, it did not appear with sufficient certainty whether the way wherein the nuisance was alleged were a highway or only a private way ; and therefore that it .shall be intended from the conclusion of the indictment that it was a private way." And see ante, p. 10. 448 LEADING CRIMINAL CASES. Indecent Exposure — Public Place — Ad commune nocumentum. the regular business of the house ; and though it was not proved that any one else was in sight, the offence may be committed though only one person happened to see it done. Pollock, C. B. The expression in the case, " that no one but herself was in sight at the time," is ambiguous. In sight of whom ? It probably means, that no one else was by at the time in such a position as to have been able to see it. " In the sight and view " of a person merely means that he might have seen it had he happened to look. It was proved as a fact that the woman saw the exposure ; but on the face of the indictment it is left in doubt whether even she either saw or could have seen it. Parke, B. In 1830, a French master was tried before me at York on an indictment, averring an indecent exposure, and charging a common nuisance. It was proved that he was seen from an opposite window by a maid servant, but there was no proof of his having been seen by any one else. I thought the exposure to the girl only did not amount to an indictable offence, and directed the jury to consider whether he was in such a position that the passers-by in the street could have seen him had they happened to look ; if the jury were of that opinion they ought to find him guilty. I thought it did not depend on the fact of the passers-by having actually seen him. Clarkson replied. Pollock, C. B. I think the conviction ought not to have taken place. The case is governed by Regina v. Watson, 2 Cox, C. C. 376. It is not necessary to decide whether this indictment is bad in arrest of judgment ; but it is very desirable to adhere to the known forms instead of making experiments to see with how small amount of legal averment an indictment can be sustained. If no more had been averred here than was proved in Regina v. Watson, the indict- ment would have been bad ; and as the additional matter here laid was not proved, the indictment, if good, was not supported by the evidence. Parke, B. It is not necessary to decide whether the indictment could be supported in arrest of judgment. I incline to think it might. " In the presence of Mary Ann Cherrill and divers others," would probably be a sufficient averment of an exposure in their sight, and the conclusion, "divers others," might be sufficiently general. But if you strike out of this indictment all that was not proved, then there was only an exposure to one individual, whi^ T LEADING CRIMINAL CASES. 449 Indecent Exposure — Public Place — Ad commune nocumentum. held not to be sufficient in the case tried before me at York, and has lately been so held by the Queen's Bench, in Regina v. Watson. Patteson, J. I very much doubt whether this indictment would not be bad in arrest of judgment. The words " expose and exhibit" have no technical meaning which would dispense with the necessity of a more particular averment. Some words ought, therefore, to have been added, clearly descriptive of an indictable offence. " In the presence of," is ambiguous ; it leaves the former words as indefinite as they were. But, whether the indictment be good or no, the charge was not proved ; for as the averment respecting " divers others " was a material averment, and was not supported by the evidence, the offence was only proved to have been committed in the presence of one person, which is not sufficient. I adhere to the judgment in Regina v. Watson. Cresswell, J., and V. Williams, J., doubted whether the indict- ment would be maintainable in arrest of judgment ; and concurred with the rest of the court that the charge was not supported by the evidence. I. This case decides that, an indecent exposure which consists in a single transitory- act (i. e. a temporary personal exposure as distinguished from the exhibition of an indecent picture, &c.) in the actual sight and view of only a single person, though in a place of public resort, no others being able to see it at that time, is of too limited and transient a nature to amount to a common nuisance at common, law, and is therefore not indictable ; and Parke, B., ruled the same with regard to a like case in a public thoroughfare. But the above cases do not seem to decide that a continuous personal exposure in the actual sight and view of several persons singly in succession does not amount to a common nuisance ; nor that such an exposure in the sight and view of several persons singly in succession, even had only one of them actually seen it, would not be indictable. Such a doctrine was not necessary for the decision of either case, and seems not maintainable on principle or authority. 1. It seems difficult to see any reasonable distinction between a single transitory act in the sight and view of divers at one time, which is a nuisance even though actually seen only by one person, and a continuous act in the sight and view of all those same persons singly in succession. The publicity is the same ; the mischief is the same ; the animus of the offender perhaps worse. And if each of those persons in succession actually see it, the publicity and mischief are in effect far greater. The only assign- able distinction between the two cases seems accidental and immaterial, viz. : that those members of the public were not all shocked or ran the risk of being shocked at one and the same time. But it can scarcely be held that public decency will be protected wholesale but not in retail. * 2. This view seems borne out by the analogy of other cases of nuisance. An act whereby a public highway, or a navigable stream is injured or obstructed is indictable, though it only happens to affect one person at one time, or even though no person is proved to have been actually affected by it. The law does not permit the public con- venience or safety to be injured or even put in peril in detail ; so too with regard to the 38* 450 LEADING CKIMINAL CASES. Indecent Exposure — Public Place — Ad commune nommentum. public health ; the law extends to it a measure of protection similar in kind though per- haps not in equal degree. A baker or butcher would clearly be indictable for a nuisance at common law, for selling unwholesome provisions to divers persons in succession. So a person with a contagious disorder, would scarcely be permitted with impunity to place himself for a length of time in a thoroughfare, so as to be only able to touch each single passer-by in succession ; and yet the same man be held indictable if at noon he stood ten minutes at Charing Cross, though only proved to have actually touched one passer-by. If then the public convenience, safety, and health are not with impunity to be injured in detail, why are the public morals and decency ? 3. The only sound principle on which the exhibition of an indecent print, &c, in the sight and view of one person only, in a public place, is indictable as a common nuisance, seems to be that it has a continuous character, and may therefore outrage or corrupt divers persons in succession. A continuous personal exposure seems to be precisely the same in principle. 4. If such a continuous act be not indictable as a nuisance at common law, it seems not to be punishable at all, except in two cases. (1.) Under the Vagrant Act, 5 Geo. 4, ch. 83, § 4, (quoted under the text,) where the act is done with intent to insult any female. (2.) Under stat. 2 & 3 Vict. ch. 47, § 58, the Metropolitan Police Act, where the offender is either drunk in the streets, or shocks the decency of the police in the privacy of their station-house. That act provides " that every person who shall be found drunk in any street, or public thoroughfare within the said^ district, and who while drunk shall be "guilty of any riotous or indecent behavior, and also every person who shall be guilty of any violent or indecent behavior in any .police station-house, shall be liable to a penalty of not more than forty shillings for every such offence, or may he committed, if the magistrate before whom he shall be convicted shall think fit, instead of inflicting on him any pecuniary penalty, to the house of correction, for any time not more than seven days." It seems, therefore, that within the range of the Metropolitan Police Act, any person, male or female, might with impunity, if sober, commit any act of indecency in the presence even of a single policeman, not in a station-house ; or of all the bishops and judges, one after another, if they happened to pass in single succession along the street ; unless in this last case such offence is punishable as a common nuisance. And without the range of the above act, any person, male or female, might, it seems, do so with impunity, drunk or sober, though for the mere drunkenness he or she might be fined five shillings, under stat. 21, Jac. 1, ch. 7. 5. The usual form of indictment would not meet the case supposed. But qumre, whether it would not be sufficient to state " that J. S., &c, in a certain public and common highway, &c, in the presence of divers liege subjects severally there being, and within the sight and view of each of them respectively, through and on the said highway severally passing, during the committal of the said offence, unlawfully, &c, did expose to the view of each of the said persons so severally present and so severally passing as aforesaid, &c, &c, for a long space of time, to wit, the space of one hour, &c. 6. Qucere, whether an indecent exposure, not continuous in its nature, but constantly recurring, so that within an hour or two 100 persons of the male sex, passing along a public thoroughfare, had been annoyed singly in succession, is within the principle of the above decisions ? It would seem to be so ; and to be a case not provided for either by the common or statute law. 7. With regard to the point decided in the principal case, it seems that the law does not consider public decency to be represented by one person in a public thoroughfare. The presence of one person only is not deemed the presence of the public ; and the possible presence of others is too remote a possibility for the law to recognize. But if others be actually present, even though they do not see the offence actually committed, LEADING CRIMINAL CASES. 451 Indecent Exposure — Public Place — Ad commune nocumentum. the law recognizes the risk of their seeing it as sufficiently proximate to be dealt with as a reality. But in the matter of public convenience or safety the law treats as a reality that degree of possibility which in the case of decency it regards as too remote. Hence an obstruction to a public thoroughfare is deemed a common nuisance, though no one has actually been affected by it. The law in this instance regarding the possi- bility of the presence of divers as a sufficiently proximate possibility to be treated as a reality. It seems, therefore, that the law, in behalf of public safety or convenience, creates a constructive public, but does not do so in behalf of public decency. II. If this indictment be good in arrest of judgment, qucere, if it would have been so on demurrer ? 1 Starkie's Crim. Pleading, 361, says: "It seems to be a general rule that no fault which would have been fatal on demurrer can be cured by the verdict ; and consequently, that any such fault may be taken advantage of by motion in arrest of judgment, or by writ of error if it be granted." He cites no authorities in support of this position. 1 Chitty's Cr. Law, 661, says: "None of the Statutes of Jeofails or Amendments extend to criminal proceedings, and therefore essential defects in the indictment are not, as in civil eases, aided by verdict." He cites the above passage from .Starkie, and Blackst. Comm. 4, ch. 29, where it is said, " none of the Statutes of Jeofails for amendment of errors extend to indictments on proceedings in criminal cases, and therefore a defective indictment is not aided by a verdict as defective pleadings in civil cases are." Strictly speaking, this passage would only mean that a defective indictment is not aided after verdict by the Statutes of Jeofails. But as the learned commentator has elsewhere confused amendment by verdict at common law with amendment after verdict by the Statute of Jeofails, (see notes to Stennel v. Hogg, 1 Wms. Saunders, 228, c. 5th ed.) it is possible that the above passage may be an instance of the same confusion ; and the notion that there can be no aider by verdict in a criminal case may have thus crept into the profession. In the absence of any decided cases, it seems difficult to see on what principles such a notion can rest, or why there is to be any such distinction between civil and criminal pleading. Why may not an ambiguous averment in an indictment be ascertained by a verdict as satisfactorily as an ambiguous averment in a declaration ? If reason and justice demand it in the latter case, they demand it equally in the former, perhaps even more imperatively. The fact of the stat. 7 Geo. 4, ch. 64, §§ 20, 21, having expressly debarred a prisoner from taking certain objections after verdict which would not be cured by verdict at common law, seems an answer to the argument that might be adduced from the rule of construing criminal proceedings in favorem vital ac libertalis ; as the legislature has thereby declared that justice shall not be defeated by technical objections, even in cases where the verdict as such can have . had no operation in removing them. Why then should they be allowed to prevail where the natural operation of the verdict is to show that they have no foundation in truth, and to remove the only ground on which, prior to the verdict, they could have been supported ? As to the effect of stat. 7 Geo. 4, ch. 64, §§ 20, 21, in curing defects after verdict, see Regina v. Harris, 7 C. & P. 429 ; Regina v. Caspar, 9 C. & P. 305 ; Regina v. Ellis, 1 Car. & M. 564 ; Radcliffe's case, 2 Moo. C. C. 68 ; Lennox and Pybus's case, 2 Lewin, C. C. 268; Regina v. Douglas, 16 L. J., New Series, M. C. 116; S. C. in error, Ibid. 17, 176. Since the above note was written, the doctrine that there can be aider by verdict in a criminal case has been established by the judgment in Regina v. Sarah Waters, 1 Denison, C. C. 356. 452 LEADING CRIMINAL GASES. Indecent Exposure — Public Place — Ad commune nocumentum. Regina v. Holmes. 1 June 4, 1853. Indecent Exposure — Public Place — Ad commune nocumentum — 14 & 15 Vict. ch. 100, § 24. The prisoner was indicted for an indecent exposure in an omnibus, several passengers being therein. The indictment contained two counts ; one laid the offence as having been committed in an omnibus, and the other in a public highway. Neither of the counts con- cluded ad commune nocumentum ; — Held, that an omnibus was sufficiently a public place to sustain this indictment. Held, also, that the 1 4 & 1 5 Vict. ch. 1 00, 5 24, was an answer to the objection that the counts should have concluded ad commune nocumentum. Charles Holmes was indicted at the Middlesex sessions in May, 1853, " for that he, in a certain public vehicle or conveyance called an omnibus, and employed for the purpose of carrying passengers for hire, and frequented and used by divers liege subjects of our said lady the queen, passing and repassing in and out of the said vehicle, in the sight and view of A. B., and C. D., and divers of the liege sub- jects of our said lady the queen in the said omnibus then and there being, unlawfully, wickedly, and scandalously did expose to the view of the said persons so present as aforesaid, the body and person of him, the said Charles Holmes, naked and uncovered for a long space of time, to wit, for the space of half an hour, to the great scandal of the said liege subjects of our said lady the queen, and against the peace of our said lady the queen, her crown and dignity." In a second count the offence was charged as having been committed in a certain public and common highway called the New Road, in the presence of divers liege subjects, &c, and concluded like the first count, " to the great scandal of the said liege subjects of our said lady the queen, and against the peace of our said lady the queen, her crown and dignity." It was proved in evidence that the prisoner was a passenger in a public omnibus for hire, and that he exposed his person for a considerable distance whilst the omnibus was passing along the New Road, in the presence of three or four females who were passengers therein, and who saw such' exposure. It was contended on the part of the prisoner, that an omnibus was not a public place, and that the indictment was bad in law, as it did not i 17 Jurist, 562; 22 Law Journal, Rep. (N. S.) M. C. 122; Dearsly, C. C. 207 ; Carrington & Kirwan, 360; 6 Cox, C. C. ~ * " ~ LEADING CRIMINAL CASES. 453 . I Indecent Exposure — Public Place — Ad commune nocumentum. conclude ad commune nocumentum, but only " to the great scandal of the said " (that is, of divers) " liege subjects of our said lady the queen." The jury found the defendant guilty, and the above points were reserved by the court, and judgment postponed. . Ballantine, for the prisoner. . An omnibus is not a public place. No doubt it is used by the public, but only under the same powers and regulations as a public house would be. Regina v. Orchard, 3 Cox, 243, shows that a urinal in a public market was not a public place within the meaning of the allegation in the indictment. 1 This 1 This case is thus reported in 3 Cox, C. C. 248. CENTRAL CRIMINAL COURT. Regina v. Orchard and Thurtle. April 7, 1848. Indecent Exposure — Indictment. An indictment charged two defendants with indecent exposure of their persons in an open and public place : — Held, that an urinal with boxes or divisions for the convenience- of the public, and situated in an open market, was not a public place, within that allegation. [There were four counts in the indictment. Part imputing unnatural and Sodomi- tical practices, and others only an unlawful exposure.] The place where the transaction occurred was in Farrington market. It was an inclosure formed of Portland stone, with divisions, or boxes, like the urinals at railway stations. It was open to the public for certain proper purposes, but otherwise inclosed. There was an aperture in the- stone-work to enable persons to look through and watch the proceedings of those inside. Clarkson and Ballantine contended that the indictment was not supported by the evidence, and that the indictment itself was not sufficient. It is not enough to allege that the parties committed the act in a jmblic and open place, but it must be laid to have been within sight of her Majesty's subjects. Regina v. Watson, 2 Cox, 376. A place accessible to the public is a very different thing from an open and public place. • Ryland, for the prosecution. If the place be so constructed that the passers-by can see what takes place within, it is sufficiently public. [Cresswell, J. Suppose it to be an inclosed stall in a market ?] The public generally would not have a right, as a matter of course, to go in there. Here the place is entirely open to such of the public as choose to enter. The market is public ; the inclosure within it is so also ; and it cannot be urged by those who took the risk of having their conduct witnessed by several persons, that the place was not a public place, within the meaning of the indictment. As to the case of Regina v. Watson, there only one individual was alleged to have seen the act done. « 454 LEADING CRIMINAL CASES. ) Indecent Exposure — Public Place — Ad commune nocumentum. was a charge of nuisance, and in all cases of nuisance the offence must occur in what is properly called a public place. Rex v. Orunden, 2 Camp. 89. An exposure in a private place, or for the purpose of a private annoyance, is not an offence cognizable at common law. It may be an exposure, under the Vagrant Act, when it is of a private character. Rex v. Lloyd, 4 Esp. 199. The act must be ad commune nocumentum. In Regina v. Webb, 1 Den. C. C. 338, the exposure' was within view of one person only, in a public house, and it was held not a common nuisance. A public house is as much a public place as an omnibus. [Martin, B. Both Regina v. Webb and Regina v. Orchard were decided upon the facts. The exposures then were intended to be exposures to one person only.] The second point is, whether this indictment, having omitted to state that the exposure was ad commune nocumentum, can be sustained. Many of the observations made upon the first point also apply to this. It must be to the public injury. [Lord Campbell, C. J. Supposing these words were essential, is it not cured by the 14 & 15 Vict. ch. 100, § 24, by which it is enacted that an indictment shall not be bad for want of a formal conclusion?] The only way in which this offence can be treated is as a common nuisance. If I am right in this, then the words are not merely formal, but of the essence of the offence, and therefore not curable by the statute. Parry, in support of the conviction, was stopped by the court. * Lord Campbell, C. J. The questions we have to decide are, whether the counts in the indictment are bad, and whether the 'evi- dence supports them; and I am of opinion that both counts are good, and that they are. abundantly supported by the evidence. Parke, B. The first question asked of this court is, whether an omnibus is a public place, so as to sustain this indictment. Now, I think it is a public place sufficiently for this purpose, so as to make ___ „___ _• » [Coleridge, J. And here there is an exposure of one of the defendants to the other.] Cresswell, J. Although the place in question is in Farringdon market, it is not a public place for the purposes of this indictment. Every man must expose his person ■who goes there for a proper purpose. Regina v. Watson, decides that the exposure to one person is not sufficient. Erle, J., concurred. LEADING CEIMINAL CASES. 455 Indecent Exposure — Public Place — Ad commune nocumentvm. an exposure to more than one person a public nuisance. Therefore, I answer .that question in the affirmative. The only remaining question is, "whether it is necessary that the counts of the indictment should conclude ad commune nocumentum. The act of parliament referred to is a complete answer to this question, and the conviction is therefore right. The other members of the court concurred. Conviction affirmed. It was held in The State v. Roper, 1 Devereux & Battle, 208, (1835,) that an indictment charging an indecent and scandalous exposure of the naked person to public view in a public place, is suffi- cient without alleging the act to have been committed in the presence of one or more of the citizens of the State. And in Grisham v. The State, 2 Yergef, 589, (1831,) the Supreme Court of Tennessee held that to sustain an indictment at com- mon law, for open and notorious lewdness, it need not be proved that the acts consti- tuting this offence were committed in the public streets, or under the immediate observation of divers spectators. In a recent case in the same State, The Slate v. Moore, 1 Swan, 136, (1851,) the indict- ment averred that the defendants " being scandalous and evil disposed persons," etc., " did live, use, and cohabit together as man and wife, in lewd acts of adultery and fornication, not being then and there law- fully married to each other," etc. Totten, J., in delivering the opinion of the court, said: "The indictment is bad, because it contains no averment that the acts consti- tuting the offence, were openly and pub- licly committed. In 4 Bl. Com. 64, it is said that ' open and notorious lewdness' is an indictable offence at common law : — as by frequenting houses of ill fame, or by some grossly scandalous and public inde- cency. So, in Grisham v. The State, 2 Yerger, 596, the court say that ' acts or conduct notoriously against public decency and good manners, constitute an offence at common law.' If the act or conduct is of such character as necessarily to be or become public or be generally known, that is such notoriety as will constitute the offence. And as a secret and single act of adultery or fornication does not constitute the indictable offence of lewdness, it is necessary for the sake of legal certainty, that words of notoriety be employed in its description. It is argued by the attorney-general, that as the adul- terous cohabitation of unmarried persons is a direct attack upon the marriage insti- tution, and in its results of the most inju- rious consequence to society, that it is in this, that the gravamen of the offence consists, and that no words of notoriety are necessary. But, although it be true, that in this consideration the nature and enormity of the offence do principally consist ; yet, it is also to be regarded as an offence against the jpublic decency and good morals. It is inrhis respect that the idea of notoriety becomes a necessary ingredient of the offence, and of course it must appear in its description. The case of The State v. Cagle and Boling, 2 Hum- phreys, 414, is no,t in conflict with this view of the subject, as words of notoriety were employed in the indictment of that case. Let the judgment be affirmed." As it is an offence against good*morals to expose one's own person publicly, so it is an indictable misdemeanor for a person to cause his servant to pass about in the public streets indecently naked. Britain v. The Stale, 3 Humphreys, 203, (1842,) or (as has been held) to publicly exhibit a stallion in the streets of a town. Nolan v. Mayor of Franklin, 4 Yerger, 163, (1833.) Sed quozre. The intent with which the act is done, is always material in an indictment for ex- posing the naked body to public view, and such intent is a question of fact for the 456 LEADING CEIMINAL CASES. Indecent Exposure — Public Place — Ad commune nocumentum. jury, under all the circumstances of the case. It is for the jury to find whether there was an intentional, wanton, and indecent exposure of the person, at such a time, and in such a place, and in suc^h a manner as to offend against public de- cency. Miller v. The People, 5 Barbour, 203, (1849.) In Commonwealth v. Haynes, 2 Gray, 72, (1854,) the indictment alleged that the defendant, "devising and intending the morals of the people of this Com- monwealth to debauch and corrupt," on the 30th of January, 1854, at Sherborn, " in a certain public building there situate, in presence of divers citizens of said Commonwealth then and there being, and within sight and view of the said citizens in and about said public building then and there passing and repassing, unlawfully, scandalously and wantonly did expose to the view of said persons present and so passing and repassing as aforesaid the body and person of him, the said Horace Haynes,naked and uncovered, for the space of one hour, to the manifest corruption of public morals and manners, and against the peace of said Commonwealth, and the form of the statute in such case made and provided." In thg^ Court of Common Pleas, the defendant pleaded guilty, and moved in arrest of judgment, " 1. Because it nowhere appears in the only count in the said indictment, and is nowhere alleged, with what intent the acts therein set forth were committed. 2. Because it is nowhere alleged in said indictment that the acts, therein alleged to have been committed by the defendant, were done to the great damage and common nuisance of all the citizens of the Commonwealth, there inhabiting, being and residing, &c. 3. Because said indictment is altogether uncertain and insufficient in law, and charges no offence with sufficient certain- ty." This motion was overruled, and the defendant alleged exceptions. Dewey, J., in delivering the opinion of the court, said : " This indictment suffi- ciently charges a criminal intent. The words in the introductory part of it, ' de- vising and intending the morals of the people to debauch and corrupt,' followed by the allegation that the defendant did the act, 'unlawfully, scandalously and wantonly,' taken in connection with the particular acts charged, sufficiently show a charge of criminal intent and purpose in the indecent exposure of himself in view of the people passing and repassing. The indictment would have been more full, and more in conformity with the pre- cedents, if it had contained a second allegation of the intent, succeeding the narration of the acts done by the defend- ant; but this would have been but a repetition of what was already alleged. That the material criminal intent may be, in a case like the present, thus found in the prefatory part of the indictment, seems to be assumed by Ellenborough, C. J., in his opinion in the case of Rex v. Philipps, 6 East, 473. The case of Miller v. The People, 5 Barbour, 203, is to the 'same effect. 2. " The further ground taken for arrest- ing the judgment is, that the indictment does not conclude ' to the common nuis- ance of all the citizens,' &e. The form of the present indictment in this respect is supported by the authority of 2 Chitty's Crim. Law, 41, and Archbold, Crim. PI. (5th Amer. ed.) 655. Although this form of conclusion has been questioned in the English cases, (Regina v. Holmes and Re- gina v. Webb,) cited by the counsel for the defendant, we are of opinion that it has been too long sanctioned by authority and practice to require us to arrest the judgment for that cause." In Rowbattel's case, 1 Lewin, C. C. 83, 227, the defendant was indicted for inde- cently exposing his person at the window of his house, in a public street at York. The counsel for the prisoner, called upon the prosecutor to elect upon which of several suggested instances of exposure he proposed to proceed. Parke, J., was of opinion, that the prosecutor might pro- ceed upon two instances, viz., one on each of two separate days, or two .separate instances on the same day, and for the following reasons, viz. ; the indictment contained two good counts, the first alleg- ing the act to have been done on the 13th of November, but, the day not being ma- LEADING CEIMINAL CASES. 457 Conspiracy — Defilement of Women. terial, they were at liberty to select one In some of the United States, " open other day. Then the second count charged and gross lewdness, and lascivious be- the offence to have been done " on the havior," is punishable by statute. For day and year aforesaid," (not the same decisions upon those statutes, see Corn- day, &c.,) which day and year aforesaid monwealth v. Catlin, 1 Massachusetts, 8 ; were the 13th of November, &c. ; ergo, Commonwealth v. Calef, 10 Massachusetts, they might prove a second act to have 152 ; Commonwealth v. Hunt, 4 Cushing, been done on that day. 49 ; The State v. Millard, 18 Vermont, This case is probably the one referred 575 ; Fowler v. The State, 5 Day, 81 ; Hin- to by Parke, J., in Regina v. Webb. But son v. The State, 7 Missouri, 244 ; Dameron in Regina v. Webb, as reported in Temple v. The State, 8 Missouri, 494. & Mew, C. C. 23, it is cited as Regina v. H. Roubegard. Rex v. Sir Francis Blake Delaval, William Bates, and John Fraine. 1 Wednesday, 22 June, 1763. Conspiracy — Defilement of Women. Where a music-master, in consideration of a sum of money, assigned his female apprentice to a gentleman, under pretence of her receiving lessons from him in music, but really for the purposes of prostitution, the court, upon application, granted a criminal information against the gentleman, the music-master, and the attorney who drew the assignment, for a conspiracy. On showing cause (in the last term, viz., on Monday, 16th of May,) why an information or informations should not be exhibited against the defendants, for certain misdemeanors ; and also upon Sir Fran- cis's producing Anne Catley in court, in obedience to an habeas corpus directed to him for that purpose. The charge against them was, that the defendants had joined in an unlawful combination and conspiracy, to remove this girl, an infant of about eighteen, out of the hands of the defendant Bates, (a musician) to whom she was bound an apprentice by her father (a gentleman's coachman,) without the knowledge or approbation of the said Catley, her father ; and to place her in the hands of Sir Francis, for the purpose of prostitution. For which purpose (as it was insisted,) she was discharged by Bates, her master, from the indentures of her apprenticeship to him, in consideration of £200 (the penalty of them,) paid to him by Sir Francis ; and was then bound, by the usual indentures of apprentice- 1 3 Burrow, 1434 ; 1 William Blackstone, 410, 439. 39 458 LEADING CRIMINAL CASES. Conspiracy — Defilement of Women. ship, to Sir Francis. And Mr. Fraine was the attorney who was concerned in the transaction, so far as to make all these several indentures, and also to draw up an agreement between Sir Francis and Bates, " that Bates should have the profits of an engagement or contract he had entered into for her singing at Marybone, and be secured against the non-performance of that contract." The girl was now notoriously kept by Sir Francis Delaval; and actually resided in his house, and publicly rode out on his horses, attended by his servants. As to the information, the court adjourned the consideration of the matter till the first day of the present term. For Lord Mansfield said, that if here really has been a conspiracy to seduce this girl, (which is the foot upon which this court are to take it up,) he and his brethren had some doubt " whether the father and mother were not concerned in it, as well as the rest." Therefore let the rule be enlarged till the first day of next term ; and let the father and mother, in the mean time, give an answer to the matters which are charged upon them in the affidavits that have been read on the part of the * defendants. As to the habeas corpus, his lordship said, that the three principal cases that have occurred since Queen Anne's time, that are applicable to the present case, were Mrs. Tuberville's case (Rex v. Ctarkson, et al. 1 Sir J. S. 444,) in Trin. 7 G. 1, in this court ; Frances Howland's case (Rex v. Mary Johnson, 1 Sir J. S. 579, and 2 Lord Raymond, 1334,) in Hib. 10 G. 1, B. R. And James Smith'' s case (Rex v. Pene- lope Smith, 2 Sir J. S. 982,) in Trin. 7, 8 G. 2, B. R. And he thought that what was done by the court in every one of them, was right; though he did not agree with the sayings that were reported in the books to have been made use of in determining them. In cases of writs of habeas corpus directed to private persons, "to bring up infants," the court is bound, ex debito justiiice, to set the infant free from an improper restraint; but they are not bound to deliver them over to anybody, nor to give them any privilege. This must be left tp their discretion, according to the circumstances that shall appear before them. There is a privilege redeundo, unless the court should see ground to declare the contrary. In the three particular cases which he had mentioned, all that was actually done, he said was right; though he did not agree with all that' was said. In the first of these cases (Rex v. Clarkson, et al.) the infant was a marriageable young lady, who lived with her guardian. A man claimed her as his wife ; she denied the marriage. The court could not try the marriage by affidavit; and they could not deliver her to'the man as her husband, without allowing the marriage. She chose to remain with her guardian ; and the court. UDon beine informed that the man LEADING CEIMINAL CASES. 459 Conspiracy — Defilement of Women. had a design to seize her, sent a tipstaff" home with her, to protect her. In the second case (Rex v. Mary Johnson,) the child was too young to judge for itself; she was not more than nine or ten, or, as some accounts say, six years old ; but certainly not old enough to exercise any judgment of her own. And there was a legal guardian appointed by the will of her father ; and therefore it was right to let the legal guardian take her, as she was too young to judge for herself. The guardian appointed, in that case, by the spiritual court, was nothing at all; for they appoint anybody guardian in that court, for the mere purpose of appearing. In the third case (Rex v. Pene- lope Smith) the child wanted but six weeks of fourteen. And that case was determined right, (barring the dictums that were used in it;) for the court were certainly right in refusing to deliver the infant to the father, of whose design in applying for the custody of his child they had a bad opinion. The true rule is, " that the court are to judge upon the circumstances of the particular case; and to give their directions accordingly." In the present case, there is no reason for the court to deliver, her to her father. She has sworn to have received ill usage from him before she was at all put out apprentice ; and while she was with Bates her master, it appears that her father seldom or never came near her, or ever gave her either advice or reprimand. It is even suspicious " whether the father and mother were not parties to the conspiracy ; " and " whether the father does not carry on this prosecution in hopes of extorting money from the defendants." Let the girl therefore be discharged from all restraint, and be at liberty to go where she will. And whoever shall offer to meddle with her redeundo, let them .take notice " that they do it at their peril." But I see no reason in this case, to send an officer with her to protect her, upon a mere apprehension or supposition that any- body will behave improperly upon the occasion. The affidavits of the girl's father and mother having been read yesterday, Lord Mansfield took them home to revise and consider them, (together with the rest of the affidavits formerly read,) till this morning. By which affidavits now read, the father seemed to me to have very fully exculpated himself from all suspicion of blame ; but the mother was acquainted with the amour between Sir Francis and her daughter, whilst she and her daughter lodged together in or near Covent-Garden, and before her daughter's going to Bath, as well as after her return, though she never acquainted her husband at all with her knowledge or suspicion of it. Lord Mansfield now delivered the opinion of the court. This is a motion for an information against the defendants for a conspiracy to put this young girl, (an apprentice to one of them,) into the hands 460 LEADING CRIMINAL CASES. Conspiracy — Defilement of Women. of a gentleman of rank and fortune, for the purpose of prostitution ; contrary to decency and morality, and without the knowledge or approbation of her father; who prosecutes them for it, and has now cleared himself of all imputation, and appears to be an innocent and an injured man. The fact, uncontroverted, is this, — a female infant, then about fifteen, was bound apprentice by her father to the defendant Bates, a music-master ; the girl appearing to have natural talents for music. The father became bound to the master in the penalty of £200 for his daughter's performance of the covenants contained in the indenture. She became eminent for vocal music, arid thereby gained a great profit to Bates, her master. During her. apprenticeship, being then about seventeen, she is debauched by Sir Francis Delaval, whilst she resided in the house of Bates's father; as Bates himself was a single man and no housekeeper. In April last, Bates, her master, indirectly assigns her to Sir Francis, as much as it was in his power to assign her over. And this is done, plainly and manifestly, for bad purposes. Bates at the same time releases the penalty to the father, but without the father's application or even privity ; and receives the £200 from Sir Francis, by the hands of his tailor, who is employed to pay it to Bates, and also enters into a bond to Bates, to secure to him the profits arising from the girl's singing this summer at Marybone. And then she is indentured to Sir Francis Delaval, to learn music of him ; and she covenants with him, both in the usual covenants of indentures of apprenticeship, and likewise in several others, (as "not to quit even his apartments,") &c. These articles between the parties are signed by all but the father; and a bond is drawn from him, in the penalty of £200 for his daughter's performance of these covenants (which he never executed.) And the girl goes and lives, and still does live, with Sir Francis, noto- riously, as a kept mistress. Thus she has been played over, by Bates, , into his hands, for this purpose. No man can avoid seeing all this; let him wink ever so much. I remember a cause in the Court of Chancery, wherein it ap- peared that a man had'formally assigned his wife over to another man ; and Lord Hardwicke directed a prosecution for that trans- action, as being notoriously and grossly against public decency and good manners. And so is the present case. It is true that many offences of the incontinent kind fall properly under the jurisdiction of the Ecclesiastical Court, and are appropriated to it. But if you except those appropriated cases, this court is the custos morum of the people, and has the superintendency of offences contra bonos mores; and upon this ground both Sir Charles Sedley and. Curl, who had been guilty of offences against good man- ners, were prosecuted here. However, besides this- thprp is in the LEADING CEIMINAL CASES. 461 Conspiracy — Defilement of "Women. present case, a conspiracy and confederacy amongst the defendants, which are clearly and indisputably within the proper jurisdiction of this court. And in the conspiracy they were all three concerned. Bates, the master, clearly knew of the connection- between Sir Francis and his apprentice, in February ; but he gave no notice at all about it to her father, till a considerable time after he knew it himself; and at least, neither tells nor hints to him any thing further than that she had been seen riding in the Park attended by a servant of Sir Francis Delaval's, and that she neglected her business and his instructions ; and recommended her mother's taking a lodging for her and lodging with her. In April, he enters into this transaction with Sir Francis, who is to pay him the penalty of the original inden- tures, and then to have the girl. Yet of all this he gives no notice to her father. Bates's own affidavit is highly improbable ; and though the girl swears, in her's, to exculpate Bates as well as Sir Francis Delaval, yet it is plainly discoverable from what she swears, " that Bates's account is not a true one." Bates therefore ought clearly to be included in the rule for an information. Then as to Fraine, the attorney, though I never heard any imputation upon him before, yet in this instance he has certainly acted inconsistently with the duty of his profession and that chastity of character which it is incumbent upon an attorney always to support. He has drawn and prepared all these instruments ; and the indentures whereby this girl, already bound to Bates, binds herself apprentice to Sir Francis Delaval, to be taught music by him ; and all the covenants contained in it ; and was privy to the compensation that Bates received from Sir Francis. So that it was impossible for him to be ignorant of the real intention of this transaction. He could not imagine that she really bound herself to Sir Francis to be taught music by him ; but must un- doubtedly have been conscious of the true purpose for which these deeds and writings were calculated. He therefore ought likewise to be included in the absolute rule for an information. Then as to Sir Francis himself, there can remain no doubt. Therefore let the rule be absolute against all three. 1 1 The counsel for the prosecutor, did not, upon the original motion, pray any rule against the tailor ; suspecting that he had acted rather under a kind of compulsion than ill intention or design. 39* 462 LEADING CEIMINAL CASES. Conspiracy — Defilement of Women. Kegina v. Mary Anne Mears and Amelia Chalk. 1 January 18, 1851. Conspiracy — Defilement of Women, An indictment charged that A. B. and C. D. did between themselves conspire, combine, confederate, and agree together, wickedly, knowingly, and designedly, to procure, by false pretences, 2 false representations, and other fraudulent means, one J. C, then being a poor child, under the age of twenty-one years, to wit, &c:, to have illicit carnal connection with a man, to wit, a man whose name is to the jurors unknown, contra formam staiuti. Held good, as disclosing an indictable offence at common law, and supported by the evidence stated in the case. The prisoners, Mary Ann Mears and Amelia Chalk, were tried at the Epiphany sessions for the town and county of the town of Southampton, held on the 7th of January, 1851, before Edward Smirke, Recorder, upon the following indictment, to which they had pleaded not guilty. Borough, town, and county of the town of Southampton. The jurors for our lady the queen, upon their oath and affirmation present, that Mary Ann Mears, late of the parish of Saint Mary, in the town and county of the town aforesaid, single woman, being a person of wicked and depraved mind and disposition, and contriving, and craftily and deceitfully intending to debauch and corrupt the morals of one Johanna Carroll, as hereinafter mentioned, and to seduce her into an infamous and wicked course of life, heretofore and after the passing of a certain act of parliament for the better preventing the heinous offence of procuring the defiling of women, to wit, on the 14th day of November, A. D. 1850, with force and arms, at the parish aforesaid, in the town and county aforesaid, did knowingly, dfeceit- fully, and unlawfully attempt and endeavor, as much as in her lay, to procure the said Johanna Carroll, the said Johanna Carroll then and there being a child under the age of twenty-one years, to wit, the age ' i 15 Jurist, 56 ; 4 Cox, C. C. 423 ; 2 Denison, C. C. 79 ; 1 Eng. Law and Eq. Rep. 581 ; Temple & Mew, C. C. 414. Before Jervis, C. J., Patxbson, J., Cress- well, J., Erle, J., and Martin, B. 2 The head note of this case as reported in Temple & Mew, C. C 414, is as follows : " A conspiracy to induce a young woman to submit her body to defilement, is an indict- able offence." This note, omitting the words " by false pretences, etc." states the law as accurately as the note in Temple & Mew. LEADING CRIMINAL CASES. 463 Conspiracy — Defilement of Women. of fifteen years, an orphan and a servant out of place, to have illicit carnal connection with a man, to wit, a certain man whose name is to the jurors aforesaid unknown, by then and there knowingly and unlawfully, falsely and fraudulently pretending and representing to the said Johanna Carroll that she, the said Mary Ann Mears, was the friend of the said Johanna Carroll, and knew her father and mother, and that if she the said Johanna Carroll would go home with her the said Mary Ann Mears, the said Mary Ann Mears would keep her until she the said Johanna Carroll could get a place, and that she the said Mary Ann Mears would herself try all she could to get her a place, and by then and there, under such false and fraudulent pre- tences and representations, taking her the said Johanna Carroll to the house of the said Mary Ann Mears, and keeping her there for a long space of time, and soliciting her and trying to induce her then and there to have illicit carnal connection with the said man, whereas in truth and in fact the said Mary Ann Mears was not the friend of the said Johanna Carroll, and the said Mary Ann Mears did not intend to take, and did not take the said Johanna Carroll home with her to keep the said Johanna Carroll till she the said Johanna Carroll could get a place, or till she the said Mary Ann Mears could obtain a place for her, but craftily and subtly, with the wicked design and purpose, by the said false and fraudulent pretences, repre- sentations, and means aforesaid, to procure the said Johanna Carroll to have connection with a man as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace of our lady the queen, her crown and dignity. And the jurors aforesaid, upon their oath and affirmation aforesaid, do further present, 1 that Amelia Chalk, late of the parish aforesaid, in the town and county afore- said, laborer, at the time of the committing of the said misdemeanor by the said Mary Ann Mears, as aforesaid, to wit, on the day and year aforesaid, at the parish aforesaid, at the town and county aforesaid, the said Mary Ann Mears to do and commit the said misdemeanor, wickedly, knowingly, and unlawfully did abet and assist, contrary to the form of the statute in such case made and provided, and against the peace of our lady the queen, her crown and dignity. That the said Mary Ann Mears and Amelia Chalk afterwards, to wit, on the day and year last aforesaid, with force and arms, at the parish aforesaid, in the town and county aforesaid, wickedly, designedly, and unlawfully did attempt and endeavor, by false pretences, false repre- sentations, and other fraudulent means, to procure the said Johanna Carroll, then being a child under the age of twenty-one years, to wit, of the age of fifteen years, to have illicit carnal connection with a man, to wit, a certain man whose name is to the jurors aforesaid unknown, contrary to the form of the statute in such case made and 464 LEADING CKIMINAL CASES. Conspiracy — Defilement of Women. provided, and against the peace of our lady the queen, her crown and dignity. That the said Mary Ann Mears and the said Amelia Chalk afterwards, to wit, on the day and year aforesaid, with force and arms, at the parish aforesaid, in the town and county aforesaid, did between themselves conspire, combine, confederate, and agree together wickedly, knowingly, and designedly to procure by false pretences, false representations, and other fraudulent means, the said Johanna Carroll, then being a poor child under the age of twenty-one years, to wit, of. the age of fifteen years, to have illicit carnal con- nection with a man, to wit, a certain man whose name is to the jurors aforesaid unknown, contrary to 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 following was the case proved in evidence in support of the indictment, so far as is material to the question reserved. The prosecutrix, Johanna Carroll, a girl aged fifteen, whose father and mother had been dead two years and upwards, had been put out to service by the guardians of the poor within the town and county of the town of Southampton. On Monday, the 18th November last, she left her last place, and not having got another, she applied to the land- lord of a public-house at Southampton for a bed for that night. The landlord was unknown to her when she applied. The prisoner Chalk was present, and the prisoner Mears joined them shortly afterwards. The landlord said he could not give her a bed that night, but referred her to Mrs. Mears, who said she would let her have a bed sooner than let her sleep out. The prisoners were at the time living in the same house, in the said town, and had no apparent means of subsistence except by prostitution and receiving men in the house. The two prisoners then took the prosecutrix home. In the course of conversation on their way and just after they got home, Mears, having'learnt from the prosecutrix who she was and that she wanted to get into service again, told her that she knew her father and mother, and that she would let the prosecutrix remain in her own house without paying anything till she could get a place, and that she (Mears) would also try to get one for her. The prosecutrix remained some days in the house, looking for a place and doing household work in the daytime, and sleeping with a little girl at night. Mears gave her food whilst there. On Tuesday evening the prisoners brought two men to the house, who stayed some time there, and drank with them. On Wednesday the two men again came and slept there, each with one of the prisoners. On Thursday morning the prisoner Chalk talked to the prosecutrix, LEADING CRIMINAL CASES. 465 Conspiracy — Defilement of "Women. and advised her to go out and get money along with her as she herself did, but the prosecutrix did not follow her advice. On that day three men came in the afternoon to the house, and after staying a short time went away. One of them returned later in the evening. Whilst he and the prosecutrix and both prisoners were together in a room of the house, the man, who was unknown to the prosecutrix, called Mears out for a few minutes. In their absence the prisoner Chalk told the prosecutrix that they had perhaps gone out to talk about her (the prosecutrix,) and to ask the man whether she and the man would go into the bedroom together. On the return of Mears and the man, Mears called her aside, and asked her whether she had any objection to go into the bedroom with the man. The prosecutrix refused, on which Mears said to her that it was the best way of getting a living. Chalk also urged her to go with the man, and Mears told her she would get some money from him if she did so. The prose- cutrix persisted in refusing, and the man after drinking with the women left the house late at night. Mears then abused the prosecu- trix, charged her with being shy, called her offensive names, and said that if she wanted to get her living she must get it as she did if s'he bided with her, and she threatened to turn her out without her clothes. The prosecutrix said she would go then, but Mears said she should stay till next morning. On Friday a child of the prisoner Chalk, who was lying dead in the house, was buried. Early on Saturday the prosecutrix left the house without being allowed to take back her clothes, and having no friends or relatives to go to, returned to the workhouse. The prison- ers, or one of them, had pawned part of the clothes, and Mears claimed to keep the rest to pay for the prosecutrix's lodgings, but eventually delivered them up to the inspector of police who had been sent to demand them. The prosecutrix had no knowledge of the course of life followed by the prisoners till the third day, but she owned that she suspected it on the second. There was no proof that the prisoners, or either of them, knew the parents of the prosecutrix, or that they or either of them ever tried to get any place as a servant for her. Several witnesses to prove the girl Carroll's previous habits and good character, and other circumstances, were called for the prosecution. The prisoners offered no evidence, and made no statement, in defence, nor were they defended by counsel. The above facts were left to the jury as evidence under all the counts, and the jury were told that they could not find both prisoners guilty under the first and second counts, nor either of them guilty under the last, unless they believed that they acted in concert and 466 LEADING CEIMINAL CASES. Conspiracy — Defilement of Women. with the common object of procuring the illicit connection alleged in the indictment, by the false pretences and representations or fraudu- lent means charged. The jury found both guilty on all the counts. The recorder passed sentence on each, but respited execution until the decision of the court upon the following questions, which he thought proper to reserve, namely : — 1st. Whether the above state of facts was evidence to go to the jury on all or any of the counts ? 2d. Whether the counts, or any of them, , disclose an indictable offence, and are valid in point of law ? The prisoners were committed to prison for want of bail. C. Saunders (with him W. M. Cooke) for the prosecution. This case was reserved by the recorder ex mero motu. The indictment is framed on 12 & 13 Vict. ch. 76, which enacts: " That if any person shall, by false pretences, false representations, or other fraudulent means, procure any woman or child under the age of twenty-one years to have illicit carnal connection with any man, such person shall be guilty of a misdemeanor." Now that statute is capable of two constructions. One is, that in order to complete the offence it is necessary that the carnal connection should actually have taken place ; and that would be the ordinary meaning. The other is, that any person who took steps to bring about that connection should be guilty of the offence ; but in this case the indictment proceeds upon the other construction, and is framed for an attempt to commit the offence. As to the false pretences, the words of this statute, "false pretences, false representation, and other fraudulent means" are much larger than those of 7 & 8 Geo. 4, ch. 29, § 53, which relates to the obtaining of money or goods by false pretences. Under the latter act it is essential to prove that the representations made were false in fact; and it has been decided that a mere promise of future conduct, however fraudulently made, is not within the act. Under this statute it is submitted that any fraudulent means resorted to for the purpose of inducement are within the statute ; and the enticing by promises is one of the principal mischiefs against which the act is directed. Here the false pretences alleged in the 1st and 2d counts are quite sufficient. [Jervis, C. J. The pretence by the defendants that they knew the girl's father and mother, is not negatived in the indictment. The real false pretence is that they would try to get her a place.] And that they were her friends. [Jervis, C. J. Aiders and abettors in misdemeanor are principals. I never before saw an indictment for misdemeanor charging an aiding and abetting as in this case.] No doubt Chalk might have been indicted as Drincioal LEADING CRIMINAL CASES. 467 Conspiracy — Defilement of Women. jointly with Mears, but there is no objection to the form here adopted. As to the 3d count, — if the object of the conspiracy is illegal, the means need not be set out. Whatever the prisoners did expressive of their meaning is evidence. (He was stopped by the court.) Jervis, C.J. The question reserved is — whether there is any good count — and any evidence to be left to the jury in support of it. It is unnecessary to discuss the 1st and 2d counts, and upon them we give no opinion, because we all think that the 3d is a good count ; the court being clearly of opinion that a conspiracy to solicit prostitution, being against good morals and public decency, is, independently of the statute, an indictable offence, and that there was evidence for the jury in support of it. In Burrow, 1434, (Dela- vaVs case,) an information was granted for a conspiracy to debauch, though the girl was a consenting party ; and there are several other cases mentioned in 2 Russell on Crimes, (London ed. 1843,) 686. Patteson, J. There is also the Lady Henrietta Berkeley's case. Conviction affirmed. The case of Rex v. Lord Grey, referred to by Mr. Justice Patteson, is reported in full in 9 Howell's State Trials, 127, (1682,) and as follows in 1 East's Pleas of the Crown, 460. " In the case of the Lord Grey and others, the information, which was at common law, charged that they unlawfully and wickedly, &c. by unlawful and impure ways and means, conspiring, practising, and intending the ruin and destruction of the Lady Henrietta Berkeley, then a virgin unmarried within the age of eighteen years, one of the daughters of George Earl of Berkeley, (the said Lady H. B. then and there being under the custody, government, and education of the said Earl,) unlawfully, to perfect and bring to effect their wicked intentions aforesaid, the said Lady H. B. to desert the said Earl her father, and to commit whoredom, for- nication, and adultery, and in whoredom, &c. to live with the said Lord Grey, then and before being the husband of Lady Mary, another daughter of the said Earl and sister of the said Lady II., against all laws divine and human, impiously, wick- edly, impurely, and scandalously to live and cohabit, did tempt, invite, and solicit ; and that the defendants, with force and arms, &c. unlawfully, unjustly, and without the leave and against the will of the said Earl B. in prosecution of such conspiracy, the said Lady H. B. then and there, about twelve at night, '&c. out of the dwelling- house of the said Earl, and out of his custody and government did take, carry, and lead away. And the said Lady II. B. from, &c. until, &c. in divers secret places with the said Lord Grey unlawfully, &c. to live, cohabit, and remain, did procure and cause; to the ruin of the said Lady H. B. and to the evil example, &c. There was no proof of any force at the trial ; for the lady was desirous to leave her father's house ; and all the measures that were taken for her departure, and afterwards for her concealment, were plainly con- certed with herself. The other persons concerned besides Lord Grey were his own servants, or persons acting by his command and under his control. Neither was there proof of any artifice used to prevail on her to depart from her father's house ; but only, as Lord C. J. Pemberton expressed himself to the jury, a solicita- tion and enticement of her to unlawful lust by Lord Grey. Indeed she herself, who was examined as a witness for the 468 LEADING CRIMINAL CASES. Forgery— Filling a Blank. defendants, disclaimed all other motives been held to be a conspiracy at common than her own free -will in the transaction, law. Anderson v. The Commonwealth, 5 None of the judges expressed any doubt Randolph, 627. And so has a confederacy of the law ; and the jury, with the appro- to assist a female infant to escape from her bation of the court, found all the defend- father's control, with a view to marry her ants guilty but one, against whom there against her will. Mifflin v. The Common- was no evidence. But no judgment was wealth, 5 Watts & Sergeant, 461. See ever given, as the matter was afterwards also, Respubliea v. Hevice, 2 Yeates, compromised." 114; The State v. Murphy, 6 Alabama, In America, a combination to effect the 765. seduction and abduction of a female has H. Rex v. John Minter Hart, otherwise Edward Blake. 1 December 15, 1836. Forgery — Filling a Blank. If a person having the blank acceptance of another, be ' authorized to write on it a bill of exchange for a certain limited amount, and he write on it a bill of exchange for a larger amount, with intent to defraud either the acceptor or any other person, this is forgery. What is or is not a false making of a bill of exchange, is a question of law. On an indictment for uttering a forged bill of exchange, the judge will hear evidence of all the facts which form parts of one continued transaction, relating to the uttering of the bill, and will not put the prosecutor to elect what particular fact he means to rely upon as the uttering, till the case for the prosecution is closed. Forgery. The 1st count of the indictment charged that on the 23d July, 1836, at the parish of St. George, Hanover-square, the prisoner " feloniously did falsely make and forge a certain bill of exchange, which is as follows : that is to say — £500. London, August 20, 1836. Two months after date, pay to my order the sum of five hundred pounds, value received. C. Taylor. To the Rev. C. H. Jenner, No. 1, Chesterfield-street, May Fair. with intent to defraud Charles Herbert Jenner." 2d count, for feloniously uttering, disposing, and putting off a3 true, the like bill, with a like intent. I 7 Carrington & Payne, 652: 1 Moodv. C. C. 652. LEADING CRIMINAL GASES. 469 Forgery — Filling a Blank. 3d count — that he, having in his possession a like bill of exchange, feloniously and falsely did make and forge thereon an acceptance thereof, with a like intent ; which forged acceptance is as follows : — " Accepted — Charles H. Jenner, at Bank of England." 4th count, for feloniously uttering, disposing of, and putting off a like forged acceptance of the said bill of exchange, with a like intent. 5th, 6th, 7th, and 8th counts like the preceding, only the intent stated to be to defraud John William Edwards. 9th and 10th counts like the 1st and 2d, but setting out the bill of exchange, with the acceptance written across it. 11th and 12th, like the # 9th and 10th, with intent to defraud John William Edwards. There were also four other counts, like the preceding four, but not setting out the forged instrument. It appeared that, on the 21st of July, 1836, an advertisement appeared in the Morning Post of that day, of which the following is a copy : — " MONEY TO LEND. " £5,000. A gentleman has this sum at his bankers' ; he feels desir- ous of lending immediately, either in one sum or in amounts riot less than £200, on personal security, at a low rate of interest, to parties requiring the same, either for short or long terms, without incurring the expense, delay, and exposure of a mortgage on funded, landed, or other property, or an application to friends or trustees; or any gentle- man requiring a sum of £60,000, or a smaller amount, on the deposit of his title deeds for an agreed period, can have the same at 4 per cent., without delay and with privacy. " Apply confidentially, by letters first postpaid, to Mr. Blake, No. 44 Haymarket, London." The Rev. Mr. Jenner, the prosecutor, who had read the advertise- ment, wrote a letter addressed to " Mr. Blake, 44 Haymarket," of which the following is a copy : — " Sir, — Perceiving by your advertisement in the Morning Post that you have money to advance on personal security, and being anxious to borrow £500 for one year, immediately, I should feel obliged by your informing me what interest you will require, and what expenses would be incurred by me in borrowing that sum. If you would take the trouble of writing me full particulars, I shall be obliged, and if they are such as I can agree to, I will come up to town to-morrow (Friday) afternoon. , "I am, Sir, your obedient servant, " Charles H. Jenner. " 1 Chesterfield-street, July 21st, 1836. 40 470 LEADING CEIMINAL CASES. Forgery — Filling a Blank. " A letter put into the two-penny post to-morrow morning before 8 o'clock, will reach me by 12, and I could arrive in town between 3 and 4. I leave town this afternoon. " Direct, Rev. C. H. Jenner, " F. Dykes, Esq., " Chiselhurst, Kent." On the next day Mr. Jenner went to the Queen's Head, Chisel- hurst, and there saw the prisoner, who did not then mention his name. Mr. Jenner then said, " Mr. Blake, I believe ; " the prisoner made no answer, but bowed. Mr. Jenner told him he wanted money. The prisoner asked what sum. Mr. Jenner said, £200, for one twelvemonth ; and some discussion arose as to Mr. Jenner's means of repaying it. The prisoner said he had the money, and appointed to meet Mr. Jenner the next day in London, and he was to have the use of the money at 5 per cent, interest, for a twelvemonth. Mr. Jenner, on the 23d, saw the prisoner, who took from his pocket-book a stamped piece of paper, and he wrote something on the upper corner of it, on the left hand, which Mr. Jenner could not then distinguish, and which he handed to Mr. Jenner, and requested him to write on it "accepted," "and his name, which Mr. Jenner did ; and also wrote on it, " at the Bank of England," the prisoner having requested him to make it payable there. Mr. Jenner had no account at the Bank of England, but intended to open an account there before his acceptance became due. When Mr. Jenner wrote his acceptance, he did not notice the writing which the prisoner put upon the bill, nor did he notice there was any writing there. The prisoner said he should leave Mr. Jenner, for some purpose which he stated. Mr. Jenner said, " then of course you will leave the check with me;" the prisoner said that was unnecessary, and said, " to show you there can be nothing wrong, there are the figures, denoting £200, written in the corner." At that time Mr. Jenner had his acceptance in his hand ; he looked at it in the corner, and he observed written in the corner " £200," which figures, denoting £200, Mr. Jenner stated in his evidence must have been written before Mr. Jenner wrote his acceptance. The prisoner then took the check away, and the parties were to meet at the Bank Coffee House in half an hour ; Mr. Jenner went there, but the prisoner did not come. Mr. Jenner stated in his evidence, that at the time he wrote the letter, in which he mentioned £500, he mentioned that as a nominal sum, wishing to know what the expense of that might be, not .having exactly made up his mind when he wrote what sum he wanted ; but it did not appear that he gave that explanation to the prisoner. Mr. LEADING CRIMINAL CASES. 471 Forgery — Filling a Blank. Jenner also stated in his evidence, that he never gave the prisoner any authority to fill up that paper for a greater sum than £200, but it did not appear that he made any such distinct declaration to the prisoner. Early in the month of August, the prisoner saw a person of the name of Edwards, and told him he had an acceptance of Mr. Jenner's for £500, which he wished him to buy; and at a subsequent time Edwards agreed to buy the bill for five shillings in the pound. He then saw it for the first time, and it was perfectly blank, with the exception of the acceptance ; and there was a stamp on it, but he noticed a stain in the left hand upper corner ; and on this being remarked to the prisoner, he said it was as he had received it. When Edwards agreed to give five shillings in the pound for the bill, it was to be drawn and indorsed. Curwood, for the prisoner. I submit; that as the showing of this paper to Mr. Edwards may be considered as an uttering, the counsel for the prosecution should elect whether they will prove this as the uttering, or state what uttering they intend to go upon, every uttering being a distinct felony ; and though previous or subsequent acts may explain the uttering which is the subject of the charge, still the charge must consist of one distinct act of uttering. Clarkson, for the prosecution. There are charges in this indict-: ment of forging and of uttering, and I propose to prove them by showing a series of circumstances. Littledale, J. It is not as if they proposed to give evidence of acts quite distinct from each other. I think we must hear all the facts, which form parts of one continued transaction, and we cannot put the prosecutor to any election till his case is concluded. It further appeared, that on the 13th August the prisoner and Edwards met, and the prisoner produced the acceptance in the same state that Edwards had seen it before. Edwards then paid him the money, £50, a bank note, and two checks, one for £25, and the other for £50 ; and Edwards was to pay him £50 more if the bill was paid at maturity, or in the event of his getting a fresh security. The prisoner then delivered the blank acceptance to Edwards, which he kept about ten days, and then he met the prisoner again, and gave him the blank acceptance to be drawn and indorsed ; and on the following day' the prisoner produced the blank acceptance, drawn and indorsed, only the name " C. Taylor" as drawer, and*" C. Taylor" as indorser; nothing else was then written. Edwards then advised the 472 LEADING CRIMINAL CASES. Forgery — Filling a Blank. prisoner to draw the body of the bill, which he did. Edwards made some observation on the bill being for £500. The prisoner produced the letter from Mr. Jenner of the 21st July, (before stated.) in cor- roboration that the bill was for £500. Edwards stated that he did not know the circumstances relating to the bill till it was delivered to him filled up. It was proved that an acid had been used on that part of the paper where the stain was, and that an acid applied there would have the effect of discharging ink ; but the persons who gave evidence as to the acid, did not prove what had been there before the acid was applied. Garwood, for the prisoner. I submit, in the first place, that the delivery to Mr. Edwards of the blank acceptance was not an uttering of a forged bill of exchange. Littledale, J. When it was first given to Edwards, it is quite clear that it was nothing at all more than the acceptance as written by Mr. Jenner. Cwrwood. That being so, I will now come to the filling up by the prisoner. I do not find any case like the present, and though this may have been, and perhaps is, a breach of trust and a fraud, still it may not be forgery. I am fully aware that if a man write over the genuine signature of another an instrument, (and I limit my admission to an instrument,) which he is not authorized to write, it is a forgery ; and the strongest instance which I am aware of on this subject is mentioned by Lord Coke, 3 Inst. 171. In that case a person had written a letter, and, as was usual at that time, when a person wanted to show respect to the individual he addressed, he put his signature at a distance below his letter, (sometimes five or six inches.) This signature the prisoner cut off, and wrote a release on the blank paper above it, and this was held to be forgery. However, the present case is different, as here the prisoner had authority from Mr. Jenner to write a bill of exchange ; and what the prisoner has done is, I submit, only a breach of the trust reposed in him, as he has written a bill for £500 instead of £200. I submit also that, to be a forgery, it must either be where the party has had no authority to draw the instrument at all, or where a complete instrument has been altered. The alteration of the 2 to the 5 in the figures, if made, was done before the bill was drawn, and so could not be altering a bill ; and all that the prisoner has done is, that he has deceived his employer by drawing for too much ; but still he had authority to draw a bill on the pro i ~ LEADING CRIMINAL CASES. 473 Forgery — Filling a Blank. Clarkson, for the prosecution. Forgery is the false making of any instrument to deceive another. Sir Edward East, in his Pleas of the Crown, lays down (2 East, P. C. 852,) that forgery " denotes a false making, which includes every alteration or addition to a true instru- ment, — a making malo animo of any written instrument for the purpose of fraud and deceit : " and (2 East, P. C. 855,) so, " making a fraudulent insertion, alteration, or erasure in any material part of a true instrument, although but in a letter, and even if it be afterwards executed by another person, he not knowing of the deceit, or the fraudulent application of a true signature to a false instrument for which it was not intended, or vice versd, are as much forgeries as if the whole instrument had been fabricated." I submit, that if a person has authority to make a bill of exchange for £200, and he, malo animo, and with intent to defraud, makes one for a larger sum, it is forgery. If a man write a bill over the genuine signature of another, that is forgery ; and why ? Because he has no authority to do so. Suppose a person has authority to draw a will, and to insert a legacy to himself for £500, and he inserted one for £5,000 instead, would not that be forgery ? Bolland, B. It is so laid down by the text writers. Clarkson. Sir Edward East says, (2 East, P. C. 855,) that forgery may be committed by a party making a false deed in his own name, if he antedates it with intent to defraud. I hope, therefore, that your lordship will leave it to the jury to say whether there was a false making here or not. Littledale, J. What amounts to a false making is matter of law. We think the case must proceed. Curwood addressed the jury for the prisoner. Littledale, J. (in summing up.) If- a person gives to another a blank acceptance, and at the time limits the amount either by writing upon it or otherwise, I give it as my opinion, with the concurrence of my brother Bolland, that if, in the rilling up of the acceptance, that amount be exceeded, with intent to defraud either the acceptor or any other person, that is in law a false making and a forgery. I lay this down to you at present, subject to the opinion of the judges, who will consider of this case hereafter. You will say whether the prisoner wrote this bill with intent either to defraud Mr. Jenner or Mr. Edwards; and I wish you also to inform me, whether the figures " £200 " were on the corner of the paper when it was taken away 40* 474 LEADING CRIMINAL CASES. Forgery — Filling a Blank. by the prisoner ; and also, whether the authority to fill up the bill was confined to £200. Verdict — Guilty. The jury adding, that they were of opinion that the figures denoting £200 were on the corner of the paper when it was taken away by the prisoner from Mr. Jenner; and also, that the authority to fill up 'the bill was confined to £200. Clarkson and Doane, for the prosecution. Curwood, for the prisoner. Before Lord Denman, C. J.; Tindal, C. J.; Lord Abinger, C. B.; Park, J.; Gaselee, J.; Vaughan, J.; Parke, B. ; Bolland, B. ; Alderson, B. ; Patteson, J. ; Williams, J. ; and Coleridge, J. Curwood, for the prisoner. The question is, whether a person having authority to draw a bill for £200, who, by an excess of authority, draws a bill for £500, be guilty of forgery. It is true that the figures " £200 " were previously on the corner of the paper ; but I submit that they were mere direction, and no part of the instrument itself; for if a bill Was in the body of it for two hundred pounds, and had the figures " £500 " in the margin, the party would only be liable to pay £200. With respect to the writing of the body of the bill itself, the distinction I take to be this, — that where a person has a right to make an instrument of a certain nature, he is not guilty of a forgery by making an instrument of that nature, though to an amount above that for which he was authorized to make it The present case is in circumstances new, and the nearest case that I can find, is that stated by the text writers, that if a person authorized to draw a will omit a legacy, it is no forgery ; but if he insert a' legacy of his own head, it is so. I am aware that it may be said, that in that case the party had authority to make the will, and merely exceeded his authority with respect to the legacy, and that this militates against my position. The case upon which this is founded, is Combe's case, which is reported by Nov, (Noy, Rep. 101,) and related to the will of Brackenbury, an usher of the king ; and it is there laid down, that the omitting a legacy is not forgery ; but if the devise had been to A. for life, the remainder to B. in fee, and he that writes the will omits the estate to A. for life, by which the fee is presently in B., that is forgery. The same case is also more fully LEADING CRIMINAL CASES. 475 Forgery — Filling a Blank. reported in Moore, 759, and it there further appears, that this was not the point on which the case turned ; and that the court also held, that filling up blanks while the testator was not of sane memory, was only a misdemeanor. Now, the first observation I would make on that case is, that it was decided in the Star Chamber, a court not bound by the strict rules of law ; ] and, therefore, as to a matter of law, not of high authority ; and I would further observe, that having decided that getting a man's signature to the filling up of blanks, while he is not of sane mind, is not forgery, they hold that a mere excess of authority is so. It is not said whether or not there was a previous direction by the testator for filling up the blanks ; but if there was, it could hardly have been held to be a misdemeanor. I should also submit that the authority of Combe's case is further weakened by the case of Sir John Marvyn, Dy. 288 (a). This case was decided, 12 Eliz. ; and Combe's case, 3 Jac. That was also a case in the Court of Star Chamber, and there, " it was moved for a 1 The judges of the Court of Star Chamber, were, the lord chancellor, lord treasurer, lord president of the council, the lords spiritual, temporal, and others, of the privy council, the principal judges of the realm, and such other lords of parliament as the king should name ; and the court could not sit for the hearing of cases under the number of eight at the least. Its days of sitting were every Tuesday and Friday in term, and the day after term. This court inflicted punishment by fine, imprisonment, pillory, loss or tacking of ears, stigmata in the face, &c. (4 Inst. 60, et seq.~) And Lord Coke adds, that the jurisdiction "extendeth not to any offence that concerns the life of a man, or the obtruncation of any member, the ears only excepted." In West's Simboleography, part 2, p. 337, et seq., will be found an account of the practice of this court, together with a collection of precedents, which are all in the English language, and in the same form as bills and answers in chancery at this day ; and among them is a bill (temp. Eliz.) for forging a bond. It is in the following form : — " To the queen's most excellent majesty — most humbly complaining, showeth unto your most excellent majesty that" [it here recites the stat. 5 Eliz. ch. 14, and states the manner in which the forgery was committed.] " In tender consideration whereof, and that your poor subject is without all remedy by the due course of the common laws of this realm, may it please your most excellent majesty, of your abundant grace and clemencies, to grant your majesty's most gracious writ of subpoena," to be directed to the said , commanding him personally to appear before the lords of your honorable council in your majesty's high Court of Star Chamber, to answer the premises, " and to stand and abide such further order and direction therein, as by the lords of your majesty's said council shall be thought meet and convenient." The defendant's answer is entitled " The answer of , one of the defendants, to the bill of complaint of , complainant." It commences with the defendant reserving to himself " all benefit of exception to the uncertainty, insufficiency, and other imperfections of the bill of complaint ; " and then, either denying the charge or stating the matter of defence, it concludes with praying to be dismissed, with costs. There is also in the same work, (p. 346,) a form of a demurrer to a bill in the Star Chamber, on the ground that it called on the defendant to answer as to a crime that might put his life in jeopardy. 476 LEADING CRIMINAL CASES. Forgery — Filling a Blank. doubt, if one who writes the will of a man lying mortally sick, insert a clause or article in the will after the testator is speechless and without memory, and he did not command the writer beforehand to put in that article or clause, whether this be a forgery of the will, and punishable by the stat. 5 Eliz. ch. 14 ? and it was resolved and agreed, by the best opinions there, that he is not, nor was it the inten- tion of the makers of the said laws." I would also observe, that in commenting on this statute, Lord Coke, 3 Inst. 170, falls into an error, as he incorrectly states that in Dyer it is said that this is not punishable at all. I submit that forgery is the false making, or the alteration of a complete instrument. Here the prisoner merely drew a bill of exchange for a greater sum than that for which he was authorized to draw it, he being authorized to use this very acceptance for the drawing of a bill of exchange, but to a smaller amount. Having thus disposed of the only case which bore against my client, I will now put it upon legal principje ; and the nearest is that of embezzlement by servants, who at common law were not guilty of larceny, though by an excess of authority they converted money to their own use, which they had authority to receive to the use of their masters ; and inasmuch as all felonious forgeries depend on statutes only, I submit, upon the true principles of criminal law, the words of those statutes ought never to be exceeded. Park, J. There was a case of a man who doubled down the stamp of a receipt, which was really to be given for interest, so that the stamped part of the paper was not written on ; and when the receipt was signed, he took it away, and wrote " a hundred," which was the principal sum, on the part of the paper which had been doubled down ; and in the next line, he added the words " principal and," so that when opened out it was a receipt for principal and interest, instead of being interest only. This was discovered at Nisi Prius by the extreme acuteness of Sir W. Garrow ; and the party I believe was afterwards executed for the forgery. Curwood. That, my lord, was an alteration of a complete receipt. The judges having considered the case, — Mr. Justice Williams gave judgment. John Minter Hart, you were convicted at the last session upon an indictment, charging that you forged, and also uttered, a bill of exchange for £500, with intent to defraud Charles Herbert Jenner. The case was argued before the judges by your learned counsel, Mr. Curwood, and, as the judges all thought, ably argued by him. The main topic he urged was in LEADING CRIMINAL CASES. 477 Forgery — Filling a Blank. substance this, that as you might have drawn a bill for ,£200, which would have been an innocent act ; the exceeding of your authority was at most a fraud only, and not a forgery. It was found by the jury that your authority was limited to £200 only ; and that being so, the judges are unanimously of opinion that your drawing the present bill for an amount beyond £200, was a false making, and a forgery. All the judges, not prevented by sickness, heard the argu- ment of your case, and they entertain no doubt that the verdict pro- nounced against you was right, and it must stand accordingly. The prisoner was afterwards sentenced to be transported for life. Regina v. Edward Wilson.' 1847. Forgery — Filling a Blank. A., authorized by B., his master, to fill up a check for a certain sum, fills it up for a greater sum. Held, a forgery, and that the 1 circumstance of the prisoner, alleging a claim on hjs master for the greater sum, as salary then due, was immaterial, even if true. Drawer's signature laid as John McNicole & Co., proved to be John McNicoll & Co. Held, no variance. The prisoner was tried before Mr. Justice Coltman, at the winter session of jail delivery, at Liverpool, 1847. The indictment in the first count charged, that on, &c, at &c, the said E. Wilson did forge a certain warrant and order for the payment of money, which said warrant and order for payment of money is as follows, that is to say : — No. ■ Liverpool, Dec. 8th, 1847. To the Cashiers of the Liverpool Borough Bank. Pay or bearer. Two hundred and fifty pounds. £250 John McNicole & Co. with intent to defraud one John McNicole. There were several other counts to which it is not materialiito advert. The prisoner was the clerk of John McNicole. A bill for £156 9s. 9d., for which Mr. McNicole was bound to provide, falling due on the 8th December, Mr. McNicole on that day signed a blank check, and 1 1 Denison, C. C. 284 ; 2 Carrington & Kirwan, 527. 478 LEADING CRIMINAL CASES. Forgery — Filling a Blank. gave it to the prisoner, directing him to fill the check up with the correct amount due on the bill (which 'was to be ascertained by- reference to the bill-book) and the expenses, (which would amount to about ten shillings,) and after receiving the amount at the Liverpool Borough Bank, to pay it over to a Mr. Williamson, in order that the bill might be taken up. Instead of doing so, the prisoner filled up the check with the amount of £250,' which sum he immediately received at the bank, and without paying any ,part of the money over to Mr. Williamson, retained the whole of it in his own posses- sion, in satisfaction of a claim for salary, which he alleged to be due to him, and in support of which he gave some evidence, but which his master, on his cross-examination, entirely denied to be due. On the day after the receipt of the money on the check, he sent in an account of his claim, giving his master credit for the sum received on the check. It was objected on behalf of the prisoner, that the signature of the prosecutor to the check being John McNicoll & Co., and [the signa- ture to] the check, as set out in the indictment, being John McNicole [& Co.] there was a variance. The learned judge, however, overruled the objection, being of opinion that the substituting of the letter e for I did not make it a different name. See Williams v. Ogle, 2 Strange, 889 ; Aleberry v. Walby, 1 Strange, 231 ; Rex v. Drake, 2 Salkeld, 660 ; Rex v. Beach, Cowper, 230 ; Rex v. Hart, 1 Leach, 145. It was further objected, that as the signature to the check was the genuine signature of Mr. McNicoll, and as the prisoner was intrusted to fill it up for a specified sum, the filling it up for a different sum, though it was a breach of trust, could not be considered as a forgery. The learned judge held, on the authority of the case of the. Queen v. Hart, 1 Moody, C. C. 486, and the Queen v. Bateman, Cox's Criminal Cases, 186, 1 that it was a forgery. 1 This case is reported in 1 Cox, C. C. 186, as follows : — CENTRAL CRIMINAL COURT. January Session, 1845. (Before Mr. Justice Patteson, and Mr. Justice Erle.) The Queen v. Bateman. Forgery — Evidence. Where a party receives a blank check signed, with directions to fill in a certain amount, and to appropriate the instrument to a certain purpose, and he fraudulently fills in a different amount, and devotes the check to other purposes, he commits forgery. LEADING CKIMINAL CASES. 479 Forgery — Filling a Blank. It was further urged that there was no proof of an intention to defraud Mr. McNicoll, but only to obtain from him a sum of money which the prisoner might honestly suppose to be due to him. But to sustain the charge, it is essential to negative every fact from which an authority to act as he has done might be presumed. The prisoner was indicted for forgery under the following circumstances. He was clerk to Messrs. Sewell and Cross, and had been in the habit of getting blank checks signed by the firm, and filling in the amount himself, to meet demands upon them. It was proved that on a certain day he brought the check in question to one of the partners, and requested him to sign it, stating at the time that he had been told by Mr._Sewell to pay certain rent which was due from Mr. Sewell to a Mr. Gardiner, but that the amount wasjiot ascertained. The check, when completed, was as follows : — " No. 7476. " London, Dec. 18th, 1844. "London and Westminster Bank. Pay to 1238 or bearer £100. " Sewell & Co." At the bottom was written " pay in notes ; " but neither this memorandum, nor the date, nor the amount, was filled in when it was signed. The words " and Co." were across the check originally. The name of the firm was written by the partner above mentioned, who stated that he never gave the prisoner any authority to receive cash for the check, or to appropriate it otherwise than for the rent. Clarkson, for the prosecution, opened the Case as clearly one of forgery. That where a party had authority to fill up checks under certain circumstances, and with certain limitations, and he chose to do so for purposes of his own, and quite beside such authority (which he was in a condition to prove was the case in the present instance,) the offence was undoubtedly committed. Before the evidence was gone into, Ballantine and Wilkins, for the prisoner, suggested that as there would be no question made as to the facts, it might be convenient at once to discuss the law of the case. Erle, J. We cannot, in a criminal case, take, any thing as admitted, and therefore the evidence must be gone into. In addition to the testimony given by the partner above referred to, it was then proved that the amount of the check had been received by the prisoner ; and the notes were traced to the possession of parties to whom the prisoner had paid them on account of certain gaming debts of his own. It was admitted by the prosecution that the rent due to Mr. Gardiner was much larger in amount than the sum for which the check was filled up. Neither Mr. Sewell nor Mr. Gardiner was called. Ballantine, on the case for the prosecution being closed, contended that there was no evidence to sustain a charge of forgery. How could a party be charged with forging an instrument which he had a lawful authority to make ?' Admitting that such authority was limited, still, in this instance, it had not been exercised to its full extent ; inasmuch as the amount actually filled in was less than he was permitted to insert. Of what part then of the check could the forgery be asserted ? It is true that there might be a subsequent misappropriation of the proceeds, but that could not be adduced 480 LEADING CRIMINAL CASES. Forgery — Filling a Blank. With reference to this point, the learned judge told the jury, that if they were satisfied that the prisoner was authorized only to fill up the check for the amount of the bill and expenses, and to pay the proceeds to Williamson, and that he filled it up for a larger sum, and applied the money, when received, to his own purposes, that was evidence for their consideration of an intention to defraud Mr. McNicoll, as alleged in the indictment. The jury found the prisoner guilty, but entertaining some doubt in support of the present charge, although it might be available under a different one. It is necessary to look to the precise period when the check was completed, and if the prisoner had authority at that time to act as he did, no subsequent conduct could make that a forgery which was not one in the first instance. _ Again, the evidence of Mr. Sewell and of Mr. Gardiner is absolutely essential to the support of any charge at all. We know nothing of what were Mr. Sewell's directions to the prisoner, except as far as he himself stated them to one member of the firm, and that statement is not at all inconsistent with his having implicitly obeyed his instructions in appropriating the money as he has done. Neither can the jury be satisfied in Mr. Gardiner's absence that the rent has not in fact been paid. Eele, J., to Mr. Clarkson. Without now expressing an opinion upon this point, I will ask you whether you are content to rest the case where it is, without calling these gentlemen ? Clarkson. I have sent for them, my lord, and expect them here every moment. Eele, J. I will wait then a short time for the chance of their arrival. The witnesses, however, did not arrive. Eele, J., observed : I think the prisoner must be acquitted. It is clear that he had authority to fill up the check in some way or another ; that was an authority derived from Mr. Sewell, and there is no evidence to show that his directions were not to get a blank check filled up for £100 and appropriate it as this has been. Moreover, it should have been shown that Mr. Gardiner did not authorize him to receive the money. He might, for any thing that appears in evidence, have gone to that gentleman, have tendered him the cheek, and got it subsequently cashed by his directions. On this ground, therefore, the charge fails. But as some doubt appears to exist as to the law in cases of this sort, it is my duty to state, that I look upon the principle as laid down by the prosecution to be perfectly correct. If a check is given to a person with a certain authority, the agent is confined strictly within the limits* of that authority, and if he choose to alter it, the crime of forgery is committed. If the blank check was delivered to him with a limited authority to complete it, and he filled it up with an amount different from the one he was directed to insert ; and if, after the authority was at end, he filled it up with any amount whatever, that too would be clearly forgery. Patteson, J. I quite agree with my learned brother, that if the prisoner filled up the cheek with a different amount, and for different purposes than those which his authority warranted, the crime of forgery ■"'«"'<" "■><» »nrimiV.*orllir ma Aa nut. LEADING CRIMINAL CASES. 481 Forgery — Filling a Blank. whether the conviction was right, the learned judge forbore to pass sentence on him, and requested the opinion of the judges thereon. On the 22d January, this case was considered by all the judges, except Rolfe, B., and V. Williams, J., who were absent. Coltman, J., said, he had felt some doubt whether the question of the reality of the prisoner's claim to the alleged amount of salary ought not to have been left to the jury. But he and all the judges agreed, that whether he had a claim or not, there was no shadow of authority thereby given to draw a check' for a larger sum than his master had expressly authorized ; and the drawing a check for a larger amount fraudulently, was forgery, on the authority of Regina v. Hart, 1 Moody, C. C. 486 ; and they held the variance immaterial, as the word remained the same. Filling in the body of a blank check to ■which a signature is attached, without any authority, is a forgery. The prisoners were indicted for uttering a forged check, and it appeared that one Townsend was in the habit of signing 'blank checks and leaving them with his clerk when business called him away from home ; one of these checks fell into the hands of the prisoners who filled up the blank with the words "one hundred pounds," and dated it; it was objected that the signature being genuine, it could not be said that the prisoners had uttered a forged instrument ; but Bailey, J., held that it was a forgery of the check. By filling in the body and dating it, it was made a perfect instrument, which it previously was not, and although it was not in point of fact made entirely by the prisoners, yet it had been held that the doing that which is necessary to make an imperfect instrument a perfect one, is a forgery of the whole. The learned judge was also of opinion that if the bankers had paid the check they might have recovered the amount from the prosecutor, as he was in the habit of leaving blank checks out, with his name written at the bottom. Wrights case, 1 Lewin, C. C. 135. See 2 Russell, Criminal Law, (London ed. 1843,) 322. Putnam v. Sullivan, 4 Massachusetts, 45, was an action on the case, by an indorsee against an indorser of a promissory note. A merchant intrusted his clerk with his blank indorsements, and a third party, by false pretences, obtained and used them. This fraudulent use of. them was held not to be a forgery, nor such a fraud as could discharge the indorser against the in- dorsee. H. 41 482 LEADING CEIMINAL CASES. Perjury — Corroborative Evidence. The United States v. Samuel R. Wood. 1 1840. , Perjury — Corroborative Evidence. On trial of an indictment for perjury in taking the owners' oatli under the Act of March 1, 1823, section 4, (3 Stats, at Large, 730,) it is not necessary for the prosecution to produce a living "witness to testify to the falsehood of the fact sworn to; if the jury believe the written evidence, contained in the defendant's letters, and in other documents, recognized by him as genuine, proves he made a false and corrupt oath, he may be convicted. The case is stated in the opinion of the court. Gilpin, (attorney-general,) for the United States. Maxwell, contra. Wayne, J., delivered the opinion of the court This cause has been sent to this court, upon a certificate of division of opinion between the judges of the Circuit Court for the southern district of New York. The defendant was iudicted for perjury, in falsely taking and swearing to the '' owners' oath, in cases where goods have been actually purchased ; " as prescribed by the 4th section of the Sup- plementary Collection Law of the 1st March, 1823. 3 Story's Laws, 1833. The indictment charged the perjury to have been committed on 20th April, 1837, at the custom-house, in New York, on the importa- tion of certain woollen goods, in the ship Sheridan, from Liverpool, shipped to the defendant by John Wood, of Saddleworth, England. There were two counts in the indictment. The first count charged the perjury in swearing to the truth of the entry of the goods, and averred that the actual cost of the goods was not truly stated in the entry; that it was known to the defendant that they cost more than was there stated, and that, on entering them, he intentionally sup- pressed the true cost, with intent to defraud the United States. The second count charged the perjury in swearing to the truth of the invoice produced by the defendant at the time of the entry ; and 1 14 Peters, 430 ; 13 Curtis's Reports of Decisions in the Supreme Court of the United States, 576. LEADING CRIMINAL CASES. 483 Perjury — Corroborative Evidence. contained similar averments as to its falsity and the intention of the defendant. In the progress of the trial, it appeared in evidence that the goods in question had been shipped to the defendant by his father, John Wood, of Saddleworth, England, in March, 1837 ; and that, in the invoice produced by the defendant at the time of entry, and referred to in the oath, the goods in question were represented to have been bought by the defendant of said John Wood. It also appeared, that for several years before, and for some time after the importation by The Sheridan, the defendant had been in the habit of receiving woollen goods from his father, which were entered in the custom-house in the city of New York, upon the oath of the defendant, as owner, and upon the production of invoices representing the goods to have been sold to the defendant by the said John Wood. It appeared from the testimony of the inspectors of the customs, that the packages designated for inspection, according to their exam- ination and judgment, were not valued in the invoices beyond the actual value of similar goods imported by other persons. No witnesses were produced on the part of the prosecution, to tes- tify to the actual cost of the goods in question, at the time and place when and where they were purchased. But the counsel for the United States, to prove the charge in the indictment, to wit, that the goods in question actually cost, to the knowledge of the defendant, more than the prices stated in the invoice, offered and proved an invoice book of John Wood, and thirty-five original letters from the ■ defendant, Samuel R. Wood, to the said John Wood, written be- tween April, 1834, and December, 1837; and, it was alleged on the part of the prosecution, that this proof disclosed a combination between Samuel R. Wood and John Wood, to defraud the United States, by invoicing and entering goods, shipped at less than their actual cost ; and also disclosed that this combination extended to the shipment by The Sheridan; and that the goods received by that vessel had cost, as defendant knew, when he entered the same, more than the prices stated in the invoice produced, and in the entry made by him. ► The counsel for the defendant objected to the competency of such proof to convict of the crime stated in the indictment ; and insisted that even if an inference of guilt could be derived from such proof, it was an inference, from circumstances not, sufficient, as the best legal testimony, to warrant a conviction. That the legal testimony required to convict of perjury in this case, was the testimony of at least one living witness to disprove the truth of the defendant's oath as to the actual cost of the goods, at the time and place of exportation. 484 LEADING CEIMINAL CASES. , * . Perjury — Corroborative Evidence. That until such proof was adduced, the documentary evidence produced by the counsel of the United States did not constitute the legal evidence upon which the defendant could be convicted of the perjury, charged in the indictment. The judges were divided in opinion, " whether it was necessary, in order to convict the defendant of the crime charged in the indict- ment, to produce, on the part of the prosecution, at least one living witness, corroborated by another witness, or by circumstances, to contradict the oath of the defendant." The rule upon which the defendant's counsel relies will be found in most of the elementary writers and digests of the law, very much in the same words. Blackstone in his Commentaries, vol. 4, p. 256, says : " The doctrine of evidence upon pleas of the crown, is in most respects the same as that upon civil actions. There are, however, a few leading points, wherein, by several statutes and resolutions, a difference is made between civil and criminal cases." Then, proceed- ing to state the differences made by some of the statutes in cases of treason, followed by a general remark or two, he observes : " But in almost every other accusation, one positive witness is sufficient ; " and afterwards, contesting the general accuracy of Baron Montesquieu's reflection upon laws being fatal to liberty, which condemn a man to death in any case upon the deposition, of a single witness, he adds : " In cases of indictment for perjury, this doctrine is better founded, and there our law adopts it, for one witness is not allowed to convict a man indicted for perjury, because then there is only one oath against another." In Viner, 16, Let. K. 328 : " Presumption is ever to be made in favor of innocence ; and the oath of the party will have regard paid to it till disproved. Therefore, to convict a man of perjury, probable or credible evidence is not enough ; but it must be a strong and clear evidence, and more numerous than the evidence given for the defendant, for else it is only oath against oath. A mistake is not enough to convict a man of perjury; the oath must not only be false, but wilful and malicious." 10 Mod. 193. In Hawkins's Pleas of the Crown, vol. 2, ch. 46, p. 91, " On an indictment for perjury, the evidence of one witness is not sufficient, because then there would only be one oath against another." Citing 10 Mod. 193, " To convict a man of perjury, there must be strong and clear evidence, and more numerous than the evidence given for the defendant." It does not appear to be laid down, that two witnesses are necessary to disprove the facts sworn to by the defend- ant; nor does that seem to be absolutely requisite. But at least one witness is not sufficient, and, in addition to his testimony, some other independent evidence ought to be adduced." LEADING CRIMINAL CASES. 485 Perjury — Corroborative Evidence. In Archbold's Criminal Pleading, 157, it is said: Upon an indict- ment for perjury there must be two witnesses ; one alone is not suffi- cient, because there is in that case only one oath against another. 10 Mod. 193. But if the assignment of perjury be directly proved by one witness,- and strong circumstantial evidence be given by another, or be established by written documents, this would perhaps be sufficient; although it does not appear as yet to have been so decided. Rex v. Lee, M. S. ; 2 Russell, 649, 7th Amer. edit. Also, if the perjury consist in the defendant having sworn contrary to what he had before sworn upon the same subject,*this is not within the rule mentioned ; for the effect of the defendant's oath in the one case is neutralized by his oath in the other ; and proof by one witness will therefore make the evidence preponderate. In 7 Dane's Abridgment, 82, citing Blackstone, it is said: " It has been decided, that one wit- ness is not allowed to convict a man indicted for perjury, because there is only oath against oath." " On a trial for perjury, the oath will be taken as true, until it can be disproved ; and therefore the evidence must be strong, clear, and more numerous, on. the part of the prosecution than that on the defendant's part ; for the law will not permit a man to be convicted of perjury, unless there are two witnesses at least." For which is cited 1 Bro. Ch. Rep. 419 ; Crown C. C. 625, 626. In the second volume of Starkie's Law of Evidence, it is said : " It is a general rule, that the testimony of a single witness is insufficient to warrant a conviction on a charge of perjury. This is an arbitrary and peremptory rule, founded upon the general apprehension that it would be unsafe to convict in a case where there is merely the oath of one man to be weighed against that of another. Nevertheless, it very frequently happens, in particular cases, that the testimony of a single witness preponderates against the limited testimony of many." In Part III. 399, the same writer says : " So in the case of perjury, two witnesses are essential ; for otherwise there would be nothing more than the oath of one man against that of another, upon which the jury could not safely convict." In Russell on Crimes and Misdemeanors, 648, 7th Amer. ed., it is said : " The evidence of one witness is not sufficient to convict the defendant on an indictment for perjury, as in such case there would be only one oath against another." 10 Mod. 193. But Russell gives several exceptions to the application of the rule, resting upon princi- ples clearly covering the conclusion to which the court has come upon the question before it. In Phillips's Evidence, the rule is also given as it is laid down in other writers ; and the case in 10 Mod. 193, is referred to. It may be found, too, repeated in many of the volumes of the English and 41* 486 LEADING CEIMINAL CASES. Perjury — Corroborative Evidence. American Reports, as well as in the case of The State v. Hayward, 1 Nott & M'Cord, 546, cited by the defendant's counsel. The cases collected in 13 Petersdorff's Com. Law, affirm the same rule. It must be conceded, no case has yet occurred in our own or in the English courts where a conviction for perjury has been had without a witness speaking to the corpus delicti of the defendant, except in a case of contradictory oaths by the same person. But it is exactly in the principle of the exception, which is by every one admitted to be sound law, that this court has found its way to the conclusion that cases may occur when the evidence comes so directly from the defendant that the perjury may be proved without the aid of a living witness. These citations have been made with the view of placing the position contended for by the defendant's counsel in its most positive form, and to show that the conclusion to which the court has come has not been without a due consideration of the rule. It is said to be an inflexible rule of the common law, applicable to every charge of perjury, that it cannot be changed but by the legis- lative power ; that until some statutory change is made, courts must enforce it ; that though other kind of evidence, and that relied upon by the prosecution in this case, may establish a case of false swear- ing, it will not suffice to convict for perjury ; in short, that a living witness is in every case indispensable. We do not think any change in the rule necessary. The question is, when and how the rule is to be applied, that it may not, from a technical interpretation, or positive undeviating adherence to words, exclude all other testimony as strong and conclusive as that which the rule requires. It is a right rule founded upon that principle of natural justice which will not permit one of two persons, both, speak- ing under the sanction of an oath, and presumptively entitled to the same credit, to convict the other of false swearing, particularly when punishment is to follow. But in what cases is the rule to be applied? To all, where, to prove the perjury assigned, oral testimony is exclusively relied upon? Then oath against oath proves nothing, except that one of the parties has sworn falsely as to the fact to which they have sworn differently. There must then be two witnesses, or one witness cor- roborated by circumstances proved by independent testimony. If we will but recognize the principle upon which circumstances in the case of one witness are allowed to have any weight, that principle will carry us out to the conclusion, that circumstances, without any wit- ness, when they exist in documentary or written testimony, may combine to establish the charge of perjury; as they may combine, altogether unaided by oral proof, except the proof of their authen- LEADING CRIMINAL CASES. 487 Perjury — Corroborative Evidence. ticity, to prove any other fact connected with the declarations of persons, or business of human life. That principle is, that circumstances necessarily make up a part of the proofs of human transactions ; that such as have been reduced to writing, in unequivocal terms, when the writing has been proved to be authentic, cannot be made more certain by evidence aliunde; and that such as have not bee/i reduced to writing, whether they relate to the declarations or conduct of men, can only be proved by oral testimony. If it be true, then, and it is so, that the rule of a single witness, being insufficient to prove perjury, rests upon the law of a presump- tive equality of credit between persons, or upon what Starkie terms, the apprehension that it would be unsafe to convict in a case where there is merely the oath of one man to be weighed against that of another ; satisfy the equal claim to belief, or remove the apprehen- sion by concurring written proofs, which existed, and are proved to have been in the knowledge of the person charged with the perjury when it was committed, especially if such written proofs came from himself, and are facts which he must have known, because they were his own acts; and the reason for the rule ceases. It can only then be an arbitrary and peremptory rule, as Starkie says it is, when it is applied to cases in which oral testimony is exclusively relied upon to prove perjury. And such we will perceive to have been the apprehension of this, rule; and if we will scrutinize its chronology, we cannot fail to see how truth has grown as cases have occurred for its application. At first, two witnesses were required to convict in a case of per- jury, both swearing directly adversely from the defendant's oath. Contemporaneously with this requisition, the larger number of wit- nesses on one side or the other prevailed. Then, a single witness, corroborated by other witnesses, swearing to circumstances bearing directly upon the imputed corpus delicti of a defendant, was deemed sufficient. Next, as in the case of Rex v. Knill, 5 B. & A. 929, note, with a long interval between it and the preceding, a witness who gave proof only of the contradictory oaths of the defendant on two occasions, one being an examination before the House of Lords, and the other an examination before the House of Commons, was held to be sufficient. Though this principle has been acted on as early as 1764, by Justice Yates, as may be seen in the note to the case of The King v. Harris, 5 B. & A. 937, and was acquiesced in by Lord Mansfield, and Justices Wilmot and Aston, we are aware that in a note to Rex v. Mayhew, 6 Carrington & Payne, 315, a doubt is implied concerning the case decided by Justice Yates ; but it has the stamp of authenticity, fr,om its having been 488 LEADING CRIMINAL CASES. Perjury — Corroborative Evidence. referred to in a case happening ten years afterwards, before Justice Chambre, as will appear by the note in 5 B. & A. 937. After- wards, a single witness, with the defendant's bill of costs (not sworn to) in lieu of a second witness, delivered by the defendant to the prosecutor, was held sufficient to contradict his oath ; and in that case Lord Den man says : " A letter written by the defendant, contra- dicting his statement on oath, would be sufficient to make it un- necessary to have a second witness." 6 Carr. & Payne, 315. All of the foregoing modifications of the rule will be found in 2 Russell, 648, 7th Amer. ed., and that respecting written documents is stated in Archbold, 157, in anticipation of the case in Carr. & Payne, 315. We thus see that this rule, in its proper application, has been expanded beyond its literal terms, as cases have occurred in which proofs have been offered equivalent to the end intended to be accom- plished by the rule. In what cases, then, will the rule not apply ? Or in what cases may a living witness to the corpus delicti of a defendant be dispensed with, and documentary or written testimony be relied upon to con- vict? We answer, to all such where a person is charged with a per- jury, directly disproved by documentary or written testimony spring- ing from himself, with circumstances showing the corrupt intent. In cases where the perjury charged is contradicted by a public record, proved to have been well known to the defendant when he took the oath : the oath only being proved to have been taken. In cases where a party is charged with taking an oath, contrary to what he must necessarily have known to be the truth, and the false swearing can be proved by his own letters, relating to the fact sworn to, or by other written testimony existing and being found in the possession of a defendant, and which has been treated by him as containing the evidence of the fact recited in it. Let us suppose a case or two, in illustration of the positions just laid down. A defendant, in two answers to a bill in equity, swears unequivo- cally to a fact, and as positively against it. A document is pro- duced, executed by himself, decisive of the truth of the fact. In such a case, can a living witness be wanted ; or could any number of living witnesses prove more certainly the false swearing, than it would be proved by the document and the defendant's contradictory oaths? Or, take the case of defendant being sued in equity, to recover from him the contents of a lost bond. In answer to a call upon him to say whether he had or had not made such a bond, he swears that he never had made such a bond. The bond is afterwards found and proved ; is not his answer, then, upon oath, disproved by LEADING CRIMINAL CASES. 489 Perjury — Corroborative Evidence. a circumstance, stronger than words can be, coming from the mouth of man ? Again, suppose a person, in order to obtain a right under a statute, is required to take an oath to a fact which is the mutual act of him- self and another, and which from its nature is unequivocal. He swears contrary to the fact. Subsequently, his letters, written before and after his oath, are found ; which disclose not only the real fact, but a general design to misrepresent facts of the same kind, and a booH*or other written paper is produced, bearing directly upon the fact, from its being the original of the transaction reduced to writing contemporaneously with its occurrence, and recognized by the defend- ant to be such, though it is in the handwriting of another ; will not the defendant's recognition of it, with the auxiliary evidence of the letters, without a living witness to speak directly to the corpus delicti of the defendant, justify the whole being put before a jury, in a case of perjury, for them to decide whether the defendant has sworn falsely and corruptly ? In such a case, if the person was called, in whose handwriting the book or other written paper was, it might happen that he had only been the recorder of the transaction at the instigation of one of the parties to it, without his ever having had any communication with the other respecting its contents. The witness then would only prove so much, without proving any thing which bore upon the charge of false swearing. But when the de- fendant himself has recognized the book or writing as evidence of his act, and such recognition is proved, there is no rule of evidence which requires other proof, beyond his admission, to prove the contents of the book or paper to be true. But suppose the book or written paper to be also in the handwriting of the defendant, and that several of his letters confirm the fact that he has sworn contrary to the con- tents of the first, as all the evidence comes from himself, we cannot doubt it would be right to place the whole before a jury, for it to judge what was the truth of the fact, and whether the defendant had sworn falsely and corruptly. We will now proceed to examine the case before us, to see if it fall within the principles and illustrations we have given. The defendant is indicted under the Act of Congress of 1st March, 1823, (3 Story, 1833,) for falsely and corruptly taking the .owners' oath in cases where goods have been actually purchased. It must be kept in mind, that this oath can only be taken in cases of goods imported from foreign countries. It places the importer, then, in a condition to commit fraud in the misrepresentation of the price he has given for the goods, with only an accidental possibility on the part of the United States ever being able to detect it by the evidence of the person from whom the importer has made the purchase. 490 LEADING CRIMINAL CASES. Perjury — Corroborative Evidence. The importer is required to swear that the invoice produced by him, contains a just and faithful account of the actual cost of the goods; and that he has not in the invoice concealed or suppressed any thing, whereby the United States may be defrauded of any part of the duties lawfully due on the goods, &c. The oath does not require from the owner the value of the goods, but the cost to him. There is nothing in it relating to the quality of the goods, but simply the cost or price paid by the importer, as owner. The defendant, in his entry, did it upon an invoice sworn to by him, to contain adjust and faithful account-of the actual cost; that there was nothing in it concealed or suppressed. He is charged with having sworn falsely in respect to the cost of the goods contained iu the invoice, by which he made his entry of them. To maintain the charge, the United States must prove that he paid a larger price. The best evidence, it is admitted, must be introduced to establish that fact. What is the best evidence in respect to its quality, as distinguished from quantity or measure; it being in the. former sense that the best evidence is required ? It is, that secondary or inferior evidence shall not be substituted foi evidence of a higher nature, which the case admits of. The reason of the rule is, that an attempt to substitute the inferior for the higher, implies that the higher would give a different aspect to the case of the party introducing the lesser. 1 Russell, 437. " The ground of the rule is a suspicion of fraud." But before the rule is applied, the nature of the case must be considered, to make a right application of it ; and if it shall be seen that the fact to be proved is an act of the defendant, which, from its nature, can be concealed from all others except him whose cooperation was necessary before the act could be complete, then the admissions and declarations by the de- fendant, either in writing or to others, in relation to the act, become evidence. It is no longer a question of the quality, but of the quantity of evidence, when it is said, as it is in this case, that his associate in the transaction should be' introduced. For instance, we will sup- pose that the letters of the defendant in this case speak of the cost of the goods in the invoice, to which the defendant swore, and that they show the goods did cost more than they are rated at in the invoice ; the quality of the evidence is of that character that it cannot be inferred that superior evidence exists, to make that fact uncertain. Unless such inference can be made, the evidence offered is the best evidence which the nature of the case admits. The evidence is good under the general principle that a man's own acts, conduct, and declarations were voluntary, are always admissible in evidence against him. So in respect to the invoice book of John Wood, containing an LEADING CRIMINAL CASES. 491 Perjury — Corroborative Evidence. invoice of the goods enumerated in the invoice, to which the defend- ant swore the owners' oath ; in the first of which the goods are priced higher in the sale of them to the defendant. If the letters show the book to have been recognized by the defendant as containing the true invoice, his admission supersedes the necessity .descriptions, has been very recently considered in the manifestly tending to the corruption of the case of Commonwealth v. McGarrigill, (not morals of youth, which said book was then reported,) in the Municipal Court -of the and there entitled," etc., setting forth the City of Boston, November T., 1855. The title of the book, but omitting a state- Rev. Sts.ch. 130, §10, enact : "If any per- ment of its contents, and alleging a rea- son shall import, print, publish, sell, or dis- son for the omission by the usual aver- 552 LEADING CRIMINAL CASES. Indictment — Averment Of Knowledge. ments. To. this indictment the defendant filed a general demurrer. Abbott, J. This is an indictmentunder the Rev. Sts. ch. 130, § 10, for selling a book containing obscene language, &c. The prisoner demurred to the indictment upon the ground, that it was nowhere al- leged that he knew that the book contain- ed obscene language. On examination, it appears that there is no allegation, in the indictment that the prisoner sold the book described, knowing its contents, or with an intent to corrupt public morals, and that it contains no equivalent allegations which might be taken necessarily to amount to knowledge on his part. If it had been alleged that the book was sold with a design and intent to corrupt public morals, then it might be well held that the design and intent necessarily included knowledge, and was equivalent to an express allega- tion to that effect, because no one can be held to intend and design to use certain means to attain certain ends, without a knowledge of the means used. This would be in accordance with the adjudged cases. Commonwealth v. Hulbert, 12 Metcalf, 446. But this indictment contains no such equiv- alent allegations; none which can in any way amount to a charge of knowledge on the part of the prisoner. The first question that arises upon this state of the pleadings is, whether knowl- edge is a necessary ingredient in the offence, because' if the crime is complete without it, by the mere act of selling books which are in fact obscene, although such fact may not be known to the seller, then, the allegation in the indictment is suf- ficient. The argument pressed is, that it was intended, on grounds of public policy, to make the selling of such books, whether their contents are known or not, punish- able, and that any one who undertakes to sell books must see to it, that he knows what he is selling, and that this is analo- gous to a class of cases under the revenue laws, where persons may be liable to for- feitures for the doing of acts in which they do not participate, and have no knowledge. But upon a careful examination of the whole subject, I think it is apparent that such is not the construction that should obtain here. Generally, intent, knowl- edge, is of the very essence of crime, and there must be very strong reasons shown to exist to take any case out of the appli- cation of this general rule. There cer- tainly appear to be no such considerations applicable to the case at bar ; and to hold that this offence may be committed by a blind man who sells books for a liveli- hood, and who happens, innocently, to sell an obscene publication, would be giv- ing a construction to the statute, manifest- ly harsh, and not required by the rules of law. Many other cases might be put where it is apparent, that the construction claimed would be equally harsh and un- just. Taking it then as settled, that knowl- edge is necessary to constitute the offence, is the indictment sufficient ? There is no more general, useful, logical, safe, and well-settled rule applicable to criminal pleading than this, that an indictment should state every fact and circumstance necessary to constitute the offence intend- ed to be described. 1 Chitty, Crim. Law, 228 ; Commonwealth v. Strain, 10 Metcalf, 521; 2 Gabbett, Crim. Law, 227; Arch- bold, Crim. PI. 41. That such is the gen- eral rule will not now be denied ; but it is claimed that an exception exists in case of certain acts the doing of which is for- bidden by statute, and that in such cases, it is sufficient to allege simply the doing of the acts complained of; and certainly there are expressions in some of the ele- mentary writers of authority, which sus- tain such a position. I apprehend, how- ever, that if any regard is paid to the logic of, or the general rules governing in crim- inal pleadings, that this exception must be held to apply only to those cases where the doing of the act made an offence, necessa- rily implies, and includes a knowledge of its criminal character, and also the criminal intent. With this qualification, the posi- tion is undoubtedly correct ; but it is cer- tainly against both authority and reason to extend it to those cases where the mere act itself is not sufficient unless the crimi- nal knowledge and intent exist. Nor can the argument prjevail, that in this case want of knowledge is a matter of defence. LEADING CRIMINAL CASES. 553 Larceny — Indictment — Evidence. to be shown by the prisoner. When knowledge is necessary to constitute the criminal knowledge is necessary to consti- offence in question, and that it being so, tute an offence, the burden of showing it it is essential that the indictment should is always on the government. Undoubt- either contain an express allegation of edly, in general, proof that a person sold such knowledge or something equivalent obscene books would be sufficient prima to it. facie evidence of knowledge, and the de- See also The State v. Brown, 2 Speers, fendant would be required to overcome it ; 129; Commonwealth v. Stout, 7 B. Mon- but still the duty would be on the govern- roe, 247 ; Rex v. Bunce, Andrews, 162. ment to prove the scienter, the mere pro- And as to what is a sufficient averment of duction of prima facie evidence not knowledge, see Commonwealth v. Kirhy, changing the burden of proof. Upon the 2 Cushing, 577 ; The State v. Carpenter, whole, testing this case by the well-settled 20 Vermont, 9 ; Rex v. Lawley, 2 Strange, rules of criminal law, and the reason and 904 ; Fitzgibbon, 122, 263. the logic of those rules, I am satisfied that H. Regina v. Bond. 1 January 19, 1850. Larceny — Indictment — Evidence. An indictment charged a prisoner with stealing several pieces of the current coin of the realm, and named all those coins in general circulation. The jury found him guilty of stealing some of the coins mentioned in the indictment, but they could not say which. Held, that a conviction could not be sustained. Per Wilde, C. J., Aldekson, B., Wight- man, J., and Cbessweliz, J. ; Erle, J., dissentiente. The prisoner was tried at the December session of the Central Criminal Court, before Mr. Justice Cresswell, by whom the follow- ing case was reserved. First, the indictment charged the prisoner with stealing seventy pieces of the current coin of the realm, called sovereigns, of the value of £70 ; 140 pieces of the current coin, called half-sovereigns, of the value of £70 ; and, in like manner, 280 crowns, 400 half-crowns, 400 florins, 400 shillings, and 400 sixpences, the property of I. G. Currie and Co., in their dwelling-house. Secondly. In another count he was charged as clerk and servant. The prisoner was a clerk in the banking-house of Isaac G. Currie and Co., and on the 17th of October, was employed as one of the 1 4 Cox, C. C. 231 ; 1 Denison, C. C. 517 ; 14 Jurist, 390 ; Temple & Mew, C. C. 242. This case is also reported in 3 Carrington & Kirwan, 337, but not to this point. 47 554 LEADING CRIMINAL CASES. Larceny — Indictment — Evidence. cashiers. There was evidence from which it might be inferred that he had on that day abstracted ,£70 in money from the bank, but there was no evidence to show the nature of any one piece of the coin taken. At the close of the case for the prosecution, it was objected that there was no evidence to show that the prisoner had taken any par- ticular description of coin, and that the jury could not, with propriety, find him guilty of stealing either one or the other in the alternative. In order that this question might be considered by the judges, I told the jury, that if they were satisfied that the prisoner had stolen a sum of money from his employers in their banking-house, consisting of some of the coins mentioned in the indictment, although they could not say which, they should find him guilty. The jury found him guilty, and I have now to request the opinion of the judges, first, whether the statement made by the prisoner was properly received ; and, secondly, whether the direction given to the jury was correct. C. Cress well. Parry Cfor the prisoner) would argue the latter question first. The evidence did not support the indictment, for there was nothing to show what specific money was stolen. It was always necessary that articles alleged to have been stolen should be accurately and particu- larly described, and that the proof should correspond with the alle- gation. This was shown conclusively by the 7 & 8 Geo. 4, ch. 29, §48, which renders it, in cases of embezzlement, unnecessary to spec- ify any particular coin. The exception establishes the rule. That rule, as laid down by 1 Russell on Crimes, 107, was, that the articles should be described with such certainty as would enable a jury to decide whether the chattel proved to have been stolen was the very same with that upon which the indictment was framed, as would show judicially to the court that it could be the subject-matter of the offence charged, and as would enable the defendant to plead his acquittal or conviction to a subsequent indictment relating to the same chattel. In 2 Hale, 183, it was said : " Where several things are stolen, it is necessary to state the number ; therefore, it is not sufficient to say, felonice furatus est aves et columbas out of a dove- cote, or young hawks out of a nest, without specifying the number. Nor that the prisoner stole twenty sheep and lambs, because it did not appear how many of- the one sort or how many of the other." [Erle, J. But, suppose he is alleged to have stolen ten hawks, and he steals nine, he must be convicted. It may be necessary to state number, but it need not be proved as laid. LEADING CRIMINAL CASES. 555 Larceny — Indictment — Evidence. Alderson, B. You must charge a specific offence. To say he stole doves, would be merely to say he was a dove-stealer.] Parry. In Reginav. Fry, Russell 04 Ryan, 482, the indictment alleged that the prisoner stole 101. in moneys numbered, and it was held insufficient. Some of the pieces of which that money consisted should have been specified, and should also have been proved. So in Regina v. Forsyth, Russell & Ryan, 274, an indictment, which charged the stealing of 100 articles of household furniture, was held bad. [Alderson, B. The counsel for the prosecution will say that the jury have found the prisoner guilty of stealing something mentioned in this count. Wilde, C. J. How are the jury to say " not guilty " upon this count generally, when they are quite clear he stole something that is contained in it ? Alderson, B. But the question is, can the prisoner be found guilty of stealing part unless the jury can say which part, and they have virtually said they cannot ?] Parry. Suppose the indictment charged a man with stealing a cow and a horse. The prosecutor had lost both, and it was clear that the prisoner had stolen one, but the jury could not say which. [Cresswell, J. Or suppose that a draper's shop had been broken into, and property stolen. The prosecutor could swear that pre- viously there were either six coats and five pairs of breeches, or five coats and six pairs of breeches, he could not tell which. Subsequent- ly there are but fiveljff each, and it is clear that either a coat or a pair of breeches has been stolen. Could there be a conviction under such circumstances ? Erle, J. It is surely the same crime whether he steals one or the other. Cresswell, J. But the jury might find him guilty upon that part of the indictment on which he was really innocent. Erle, J. They might find him guilty of the larceny mentioned in the indictment.] Parry. But the charge is not merely that the prisoner stole, but that he stole certain coins, and there is no specific proof of that pre- cise allegation. [Alderson, B. There is a count in murder on record, which alleged 556 LEADING CRIMINAL CASES. Larceny — Indictment — Evidence. that two blows were given by the prisoner, and that if the deceased did not die of the first he died of the second, and if not of the second, of the first. Cresswell, J. In that case there might be proof that he commit- ted both acts, the only doubt being as to which caused the death.] Parry. In Regina v. Kettle, 3 Chit. Crim. Law, 947 a, the pris- oner was indicted for stealing one bushel of oats, one bushel of chaff, and one bushel of beans. The evidence was that they were all mixed together when stolen, and it was held not to support the in- dictment. It should have been described as a certain mixture, con- sisting of one bushel of oats, etc. Aldeeson, B. I doubt the propriety of that decision. I cannot help thinking that, if a man steals wine and warter, he may be charged with stealing wine. The above principle would doubtless hold good, where the mixture was such as to produce a chemical change in the articles. Parry. Suppose two men are charged with murder, and it.is un- certain which of them is guilty, although one of them is clearly so. Such a case really occurred at Maidstone, and three persons were acquitted of murder, although it was pretty evident that one was guilty. Alderson, B, In such a case there could be no doubt about the propriety of an acquittal. If one man is innocent, a verdict against all would be palpably wrong. Here the prisoner is confessedly guilty of something which the indictment contains. Parry. How could the prisoner plead autrefois acquit or convict to a second indictment for the same offence, supposing the jury had returned such a verdict as this ? [Alderson, B. Where would be the difficulty of pleading autre- fois acquit ? He has been in jeopardy with regard to all that the in- dictment contains. Erle, J. Or autrefois convict, for the stealing is one act, and of that he has been convicted.] Parry. But the second jury could not say he has been guilty of stealing any one specific thing. Williams, J. The jury would have to say whether it was the LEADING CKIMINAL CASES. 557 Larceny — Indictment — Evidence. same specific offence, and that would be the subject of parol evi- dence. The prisoner would not be confined to the record alone. Suppose the goods are charged in the first indictment to be the prop- erty of a person unknown, parol evidence must then be adduced to show that they are the same goods as are mentioned in the second indictment. Parry. Suppose this conviction were held good, and the pris- oner should be afterwards indicted for stealing one of these sov- ereigns, how could he plead autrefois convict when, by the very terms of the verdict, the jury have never said that he was guilty of stealing sovereigns ? If he could plead autrefois acquit, or autrefois convict, in the alternative, the difficulty might be got over, but this of course he could not do. Erle, J. But surely what may be the particular chattel stolen has nothing to do with the offence. The stealing is what he is charged with. Suppose a man steals a coat, and in the pocket of it there is a pocket-book. If he is indicted for stealing the coat and convicted, could he not afterwards, if he were indicted for stealing the pocket- book, plead autrefois convict; the stealing was one act; of that he had been convicted, and surely he could not be punished a second time for the same act of stealing. Parry. It is difficult to see how he could plead autrefois acquit unless the pocket-book was included in the first indictment. Perhaps the difficulty in this case might have been obviated by stating the coins to have been certain pieces of the current coin of the realm to the jurors unknown ; but there is no such allegation. Huddleston, for the prosecution. As to the second point. No doubt, in the indictment it is necessary to state the charge specifically, and the reason assigned is, that the court may see that the goods are the subject-matter of larceny. The indictment here, therefore, is per- fectly good, and would have been bad if it had charged that the de- nomination of the coin was to the jurors unknown. But the offence has nothing to do with the particular coin or chattel. wl'he offence is the taking. But, however clear and precise the indictment may be, the evidence sufficient to support it may vary from its terms in several particulars, as in number, amount, &c. Now the jury say here that he is guilty of the charge in the indictment, but they can- not say specifically of which portion of it. Take, for instance, the case put of the coats and the trousers, the jury find him guilty of 47* 558 LEADING CEIMINAL CASES. Larceny — Indictment — Evidence. stealing something, but they cannot say what, but whatever it is it is in the indictment. Ceesswell, J. It is not the mere taking that is the offence ; it is the taking the coat or the trousers ; the same might be said in a case of murder, where the prisoner was charged with having killed A. and B., and the jury were to say he killed one, but they could not tell which. Murder is the offence there, as stealing is the offence here. Huddleston. There is no difficulty if we look to the reason of be- ing thus specific in the indictment, namely, to show that the goods alleged to be stolen are the stibject of larceny. Then, as to pleading autrefois convict there would be no difficulty, for suppose he is again charged with stealing the coat, such a verdict as this would support the plea, if it were proved to be the same taking, for that is the ma- terial averment. Cresswell, J.- But, after such a verdict as this, if the prisoner were indicted again for stealing one of the articles, which would you plead, autrefois convict or autrefois acquit ? because either plea would be equally applicable. Huddleston. No ; autrefois convict would be the proper plea ; be- cause, if both articles were taken at one time he would have been convicted of such taking. [Erle, J. In all cases it would be necessary to adduce parol evi- dence to show that the goods in the first indictment were the same as those in the second. Why, then, might not parol evidence be admissible to explain that the taking was the same as in the case of the pocket-book before mentioned. Surely, if he were indicted for stealing the pocket-book which was in the pocket of the coat which he had before been convicted of stealing, that would be a defence. Alderson, B. I think that he might be indicted again. Take the case of the coat and trousers, and suppose that the jury say he is guilty of stealing the coat, and not the trousers ; is the taking the same unlesPit is the taking the same thing ? It seems to be thought there is such a thing as an abstract taking, I do not think so. I think "taking" means taking something. Williams, J. Suppose there had been several counts in the in- dictment, each count containing a different denomination of coin, could he the,n have been convicted ? Wilde, C. J. There the jury could not find him guilty on any LEADING CRIMINAL CAgES. 559 Larceny — Indictment — Evidence. one count. They could not say he stole something that any specific count contained. Alderson, B. You must be prepared to carry your argument the length of saying that an indictment would be good, which said he stole a sovereign, or a half sovereign, or a crown, for that is what the jury have found.] Huddleston. The certainty required in an indictment is very differ- ent from what is required in evidence. See to what absurdities the doctrine contended for on the other side would lead. A man may have counted his money a short time before, and knows the amount of it, but does not recollect the specific coin. His servant robs him, and confesses the crime generally, but because he does not mention the coin, he escapes with impunity. Alderson, B. That was the identical case that the Embezzle- ment Act was intended to provide against, but it omitted to provide for cases of larceny. i Huddleston. In Regina v. Falkner, R. & E. 481, the prisoner was indicted for stealing sixty pennies, sixty halfpennies, &c. The depo- sitions charged him with robbing the prosecutor of copper money, not saying what, and before the magistrate the prisoner made a statement that he was guilty, and that was proved at the trial. The judges held that the evidence was sufficient to support a conviction. Wilde, C. J. There is a very short account of that case ; and I think that the inference to be drawn from it is against you. The main point there was as to the sufficiency of the confession, without any further evidence of the robbery, and therefore it is possible that some evidence was adduced to show that the prosecutor had either a penny or a halfpenny, though the fact is not reported. And if such evidence was not given, it seems strange, if there was any thing in the point, that it should not have been taken either by the counsel or the court. Huddleston. Suppose a man were indicted for murder, and there were several counts, each charging a different mode of death, could there be any objection to a general verdict ? Alderson, B. In the case of Regina v. Good, who was tried for murder, the mode of death was laid in thirty-five different ways, but neither Lord Denman, nor I, ever dreamed that it was not necessary for the jury to say on which count they thought he was guilty. 560 LEADING CKIMINAL CASES. Larceny — Indictment — Evidence. Huddleston. Regima.v. Grove, R. & M. 447, although a conviction for embezzlement, is in favor of the prosecution in this case. Parry (in reply). Regina v. Chapman, 1 C. & K. 119, and Regina v. Lloyd Jones, 8 C. & P. 288, would seem to throw some doubt upon the case of Regina v. Grove, even if it were applicable here. On the 27th April, 1850, Mr. Baron Aldeeson delivered the fol- lowing judgment : — There were two questions in this case. On the first, the Court, Wilde, C. J., Wightman, J;, Cresswell, J., Eele, J., and myself, are all agreed. On the other question my brother "Erie differs from the rest of the court. The indictment charged the prisoner with stealing seventy sovereigns, one hundred and forty half-sovereigns, and so on, enu- merating (it may be conceded) all possible descriptions of coin. The direction to the jury given in order to raise the question was in sub- stance, that even if they would have been unable to say whether the prisoner had stolen any one coin of the enumerated species — if that class of coin had been the only coin alleged to have been stolen — still if they were quite satisfied that he had stolen some one or other of the coins mentioned in the count, they should find him guilty. We think this direction was wrong. The count, including all the species of coin, must be treated exactly as if it was a set of counts, each charging one species alone. And if so, we think it clear that the jury could not find a man guilty, unless they could say affirma- tively that he was guilty of stealing some definite thing, described in one of the counts. And the same rule must, we think, apply if they are all included in one count. Suppose a conviction under this charge, and a subsequent indictment for stealing sovereigns. How is the prisoner to plead and prove that he has been before convicted of that offence ? All the proof he could then give, if this verdict stand, would be either that he has been convicted of stealing sover- eigns, or half-sovereigns, or crowns, or some other species of coin. We think this cannot be just to a prisoner. On the other hand, if he has been convicted of the definite crime of stealing sovereigns, and acquitted of the rest of the charge, he has his future defence, either on the plea of autrefois convict, or autrefois acquit as to the whole charge in this indictment. But on this charge and the verdict founded thereon, it is impossible to say whether he is convicted or acquitted of any particular portion of this count or not. He is certainly not convicted of the whole. Whether it may be desirable for the legis- lature to interfere, and to enact in larceny of money, as they have already done in embezzlement, that a general statement of a larcenv LEADING CEIMINAL CASES. 561 Larceny — Indictment — Evidence. of moneys numbered to a specified amount shall be sufficient, is quite a different question, as to which we do not express any opinion. But the fact, that in embezzlement, an act of Parliament was found necessary for this purpose, seems to us strongly to show what, but for that act of Parliament, was the universal law on this subject ac- cording to the text-books and previous decisions. For these reasons the majority of the court think the conviction wrong. Erle, J. I regret to find myself differing from the rest of the court as to the second question reserved at the trial. I think that the direction of the learned judge was correct, and the prisoner rightly convicted. The indictment was good upon its face, and the prisoner was found guilty of the. crime there charged against him. That crime was the stealing of certain pieces of the current coin of the realm, and the indictment proceeded to specify various sorts of coin ; the verdict was that he did steal several pieces of the current coin of the realm, mentioned in the indictment; but that the jury were un- able to say positively what precise coins were taken. But of the felonious taking they were quite, certain, and that the felonious tak- ing was a taking of some of the current coins of the realm set out in the indictment. It therefore seems to me, that all the essential in- gredients of the crime are found by the jury as facts, and that is all that is necessary to warrant a conviction. If this be not so, it would seem that the criminal law of this country furnishes a person, who is clearly proved to have committed a felony? with the certain means of escape ; and that too, by the machinery of that very criminal pro- cedure, which was originally constructed solely as a means to an end, namely, the effectual attainment of justice. If this verdict can- not be sustained, the indictment must be in someway defective; and yet, as it probably could not be framed otherwise, it follows that in a case of this kind no good indictment could be framed, which seems an absurdity, and therefore not in conformity with the rules of the criminal law of England. Regina v. Spicer, 1 Denison, C. C. 82 ; has distinguished the genus and the spe- 1 Carrington & Kirwan, 699, which was cies by a separate classification, and there- not referred to in the argument, seems to by treat them as specifically different, show that the thing stolen need not now The principle of that decision seems to be alleged in the indictment, with so great apply to indictments for stealing coin ; a degree of certainty as was formerly and to render it needless to aver the pre- deemed requisite; and that if the specific cise species of coin stolen. For as sheep thing, alleged to be stolen, is described in (the genus) is held to include lamb (the the indictment by a generic term, which species), it seems difficult, on grounds of clearly comprehends it, the indictment is reason, to show that coin (the genus) does good ; and that, even though the statute, not include sovereign, half-sovereign, etc., under which the indictment is preferred, (the species). In Regina v. Spicer, ubi 562 LEADING CRIMINAL CASES. Larceny — Indictment — Evidence. supra, the lamb, as proved, was deemed no variance from the sheep as laid ; and it was in effect held, that under that indict- ment, a verdict would be good, which found the prisoner guilty of stealing some animal of the sheep genus, though the jury were unable to determine the particular species. It therefore seems well worth considering whether an indictment would not be good, which in one count describes the money generally as pieces of the current coin of the realm of the value of 1. ; and in another as pieces, etc., of the value of L, the nature and value of which said several coins is to the jurors unknown. In Regina v. Sharp, 2 Cox, C. C. 181, Rolfe, B., recommended that indictments charging robbery 1 of coin should not state the description of the coin, but only so many "pieces of cop- per coin,'' or "copper money," of the value, etc. In the principal case the difficulty, per- haps, lay rather in the form of that par- ticular indictment, than in the law of lar- ceny, or the rules of criminal procedure. For as the prisoner was not charged with stealing coin generally, but with stealing coin of a particular description, and since the description of the coin could not be rejected as surplusage, it became material to prove it as part of the charge. Rex v. Johnson, 8 Maule & Selwyn, 552, per Le Blanc, J. So in Regina v. Spicer, ubi supra, if the indictment had charged the stealing of a sheep called a ewe, proof of a lamb would, it seems, not have sustained a conviction. If, however, it be held, that an indictment charging a stealing of coin generally is bad, it will be high time for the legislature to put the law of larceny on the same footing as the law of embez- zlement. Quaere, whether an act of Par- liament was " necessary " there, as inti- * mated in the judgment in the principal case ? Arguments drawn from the pass- ing of modern enactments are often falla- cious. Unnecessary acts are not unfre- quently passed. It might be contended from the wording of stat. 11 & 12 Vict, ch. 46, § 3, that prior to that statute, if two persons were jointly indicted for felo- nious receiving, one alone could not have been convicted. Indeed it has sometimes been so supposed, .but erroneously. An act of Parliament has been passed to meet this case. By statute 14 & 15 Vict, ch. 100, § 18, it is provided that in* every indictment in which it shall be necessary to make an averment as to any money, or any note of the Bank of England, or any other bank, it shall be sufficient to describe such money or bank-note simply as money, without specifying any particular coin or bank-note; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin, or of any bank-note, although the particular species of coin of which such amount was composed, or the particular nature of the bank-note, shall not be proved. , LEADING CRIMINAL CASES. 563 Blasphemy — Evidence — Bible Burning. Regina v. TkE Rev. Vladimir PeVcherini. 1 1855. Evidence — Practice — Res gestce — Declarations by persons engaged in Unlawful Acts — Crown Witnesses not making Informations — Statements by accused. Statements made in the absence of the accused by persons engaged in an unlawful act are not evidence against the accused who had given directions for such act, unless it appear that all the parties were engaged on such act with a common unlawful object. There is no rule which excludes the evidence of crown witnesses who have not made in- formations. Statements made by the accused not accompanying or connected with acts complained of, can under no circumstances be given in evidence for him to show his intention. The prisoner was indicted for wilfully and knowingly burning and causing to be burned cer- tain authorized versions of the Holy Scriptures. The heap of books, amongst which it was alleged were the copies in question, was burned by direction of the traverser. It was proposed to give in evidence a statement (not in the, prisoner's hearing) made by a boy who was one of a crowd round a fire, and was engaged in throwing books- into the blaze. There was no evidence of this boy having been, retained by the traverser, or of his having received any directions on. the subject. Held, that such statement was not admissible as part of the res gestae, and did not.come with- in those classes of cases, as riots and conspiracies, in which such statements would be evi- dence, as it did not appear that the accused and the person whose statement was offered in evidence were engaged in an unlawful act with a common unlawful object. A witness was called for the crown who had not made an information, and it was sought by the prisoner's counsel to shut out such evidence on the ground of such information not having been made. Held, there was no rule to admit such evidence under the circumstances. The counsel for the prisoner sought to give in evidence statements and directions of the accused in sermons previous to the burning of the books in question, for the purpose of showing that he had only called in immoral publications to be brought in to be burned. Held, not admissible. In this case the traverser was indicted for haying contemptuously and blasphemously' burned and destroyed, and caused to be burned and destroyed, a certain authorized version of the Holy Scriptures. There were several counts in the indictment, which as they are material, will appear in the charge of the learned judge to the jury. The traverser pleaded not guilty. The Attorney- General, the Solicitor- General, the Hon. J. Plunket, Q. C, Corballis, Q,. C, and Hegtagh, appeared on behalf of the Crown. i 7 Cox, C. C. 79. Dublin Commission Court, Green Street, before Crampton, J., and Greene, B. 564 LEADING CRIMINAL CASES. Blasphemy — Evidence — Bible Burning. O'Hagan, Q. C., Sir Colman O'Loghlan, Q. C, J. A. Currcm, Coffey and Kernan were counsel for the traverser. From the evidence for the prosecution, it appeared that the trav-> erser, who was a member of the order of Redemptionist Monks, and formed one of a mission who had been preaching and engaged gen- erally in the cure of souls in the neighborhood of Kingstown, had on the morning of the 5th of November last, about 8 a. m., engaged ia couple of boys with wheelbarrows, to take a quantity of books and printed papers from the traverser's lodgings to the yard of the chapel at Kingstown. Several boys accompanied the barrows and entered the lodgings, for the purpose of assisting to remove the books and papers. The traverser opened the door, and brought the boys into the room where the books, &c, were lying under a table. There was another of the Redemptionist fathers present, and also a servant, who assisted in taking the barrows, and handing the books to the boys. The witness as to this part of the case did not open any of the books, bu^ from the exteriors was able to say, there were amongst them a History of England, and also a book with a black raised cover, gilt at the edges, which he thought was a Testament. There was, however, no printing at the sides or on the back. "Witness had seen other copies of the Bible, and thought from its appearance, that the last-mentioned book was a small copy of the Bible. This, how- ever, was merely a conjecture of witness. "When the barrow was loaded, the traverser desired the boys to take them to the chapel-yard and wait there for him. When the: traverser came, the books were thrown on the ground, and he desired them to be lit (burned), which was accordingly done. Witness was wheeling his barrow out of the way, and by the time he came back to where the books lay, they had been set fire to. After the fire was lit, the traverser went away in the direction of the chapel, and returned in about twenty minutes ; traverser stood for a time at a distance of about thirty yards from the fire, looking towards it, and after remaining about five minutes went away. Witness knew John Hamilton, and saw him at the fire. Hamilton was not one of the boys who went to the traverser's lodgings and assisted in carrying away the books. Several other witnesses were called to corroborate the above state- ments. George Brown, examined by the Solicitor-General, lives at Kings- town. On the morning in question, on returning from delivering bread at the wharf, saw a crowd at the chapel-yard, looked in through the rails, and saw books, &c. burning. Saw George Messent throw- ing books into the fire. Saw John Hamilton ; he had a'book in his hand, which he tore in two and threw into the fire. LEADING CRIMINAL CASES. 565 Blasphemy — Evidence — Bible Burning. The Solicitor- General. We propose giving in evidence what John Hamilton said on that occasion, as part of the transaction. We have the traverser directing books to be burnt, the burning takes place, and what is said by the persons engaged under his directions in this work, is evidence. In Lord George Gordon's case it was held, that the cry of the mob might be received in evidence against the prisoner, as part of the transaction of whioh he had been the origin. There is another class of cases in which this evidence is admissible, namely, conspiracies, where verbal expressions accompanying or explaining acts of persons other than the accused, but connected with him, are admissible, even though the accused party was not present at the time. Hardy's case, 24 How, St. Tri. 452, establishes this rule. Take also the cases of riot, where in carrying out a particular unlaw- ful object, the expressions of the persons engaged accompanying these acts are admissible against others of the party, even though not shown to have been within their hearing. He also - cited Regina v. Hardwicke, 11 East, 585. O'Hagan, Q. C, was stopped by the court. [Crampton, J. If there had been established here a common ob- ject, that of burning books of a particular description, then every- thing said by the parties engaged, accompanying acts, would be admissible. We have not here made out in evidence that common object which would make those cases cited applicable. In the Man- chester case, Rex v. Hunt, 3 B. & Ad. 574, a placard, which was at a distance, was received in evidence against Hunt, because there was a common unlawful object proposed by the prisoner and those en- gaged with him. In this case we want that necessary element of a common unlawful object, to make the declaration of this boy Hamil- ton evidence. Greene, B. I quite concur in the view taken by my brother Crampton. Hamilton is not connected in any way with the trav- erser. He is not one of the boys originally employed ; he first appears when the burning was going on, and under those circum- stances it is impossible to make his statements evidence against the traverser. Crampton, J. If there were any evidence that the traverser coun- tenanced him, it would be different.] Other evidence was given to show that fragments and leaves of Bibles partly burned were picked up by persons in the neighborhood of the fire. Rebecca Whittle called and sworn. 48 566 LEADING CRIMINAL CASES. Blasphemy— Evidence — .Bible Burning. CPHagan, Q. C, objected to this witness being examined. We submit the crown has no right to produce a witness who has not made an information. There is a rule on the Munster circuit that unless a witness appears unexpectedly, and it is shown that the evi- dence of such witness should be excluded, it is not fair to an accused person that a witness should lie by or be kept back without making an information, and thus deprive a prisoner of means of cross-exam- ination, or of making inquiries. Mr. Justice Perrin, as I am informed, is in the habit of excluding such testimony, unless it can be shown why informations were not made, and his reason is, that otherwise the prisoner would be deprived of the benefit of the act which enti- tles him to copies of the informations. Crampton, J. I have been acting on a contrary rule for twenty- one years. I can pay no attention to any case not reported in print Coffey. It was understood on the circuit that Mr. Justice Perrin's ruling was according to the practice in England. [Crampton, J. I think you must be under a mistake. We cannot adopt such a rule. Greene, B., concurred.] The case for the prosecution having closed, O'Hagan, Q. C, addressed the jury for the traverser, and called James Coffey, who stated that he had been present at several ser- mons preached by the traverser in Kingstown chapel; recollected a sermon of his about immoral publications. The Attorney- General. If it is proposed to give evidence of what the traverser stated about this matter, I object to it as inadmissible. Crampton, J. It is quite impossible to receive such evidence. O'Hagan, Q. C. It is a material part of the charge that the trav- erser knowingly caused the Bibles to be burned, and thereupon, for the purpose of showing his intention in getting books together, I have a right to give in evidence his directions to the parties who brought in the books. [Crampton, J. I do not know on what principle a man's own declarations can be given in evidence for himself. LEADING CRIMINAL CASES. 567 Blasphemy — Evidence — Bible Burning. Greene, B. His own statements cannot be evidence in his favor on any principle I know of.] dHagan, Q. C. The, statement of the traverser was, that the books in question were brought in under the directions of the trav- erser. We do not propose to give any evidence of declarations sub- sequent to the transaction which would be open to the suspicion of being framed for this trial. It is with the view of showing what books were intended to be collected. Crampton, J. If a man makes a declaration accompanying an act, it is evidence ; but declarations made two or three days, or a week, previous to the transaction in question, cannot be evidence, otherwise it would be easy for a man to lay grounds for escaping the consequences of his wrongful acts by making such declarations. O'Hagan, Q. C. After the opening of the crown, this objection takes us by surprise. In The Queen v. Duffy, my recollection is that speeches of the accused made months before were received, for him to show his intention. [Greene, B. We consider this evidence quite inadmissible. It may be true that declarations accompanying acts are admissible to show the intention at the time. The question of intention is cer- tainly a very material one in the present case, but it is to be inferred from legal evidence of facts, and not from antecedent declarations by the traverser himself, upon occasions distant from and antecedent to the transaction. It is very true, as observed by the last counsel, that whatever Father Petcherini said to Duff, and to which Duff deposed, is admissible and material, because it is part of the trans- action to which Duff deposes. But the question now is, whether the court are to admit, in evidence, declarations or sermons of the trav- erser on former occasions unconnected with the subject-matter of this trial. I say unconnected in point of time, not accompanying but antecedent to the transaction. I am utterly at a loss to conceive upon what principle such evidence is admissible, or where the line is to be drawn, if such declarations made by accused parties in their favor — made no matter at what period of time antecedent to the transaction. I am quite unaware of any principle or authority that would warrant the introduction of such evidence. Crampton, J. I entirely concur with my brother Greene in hold- ing such evidence utterly inadmissible. From Mr. O'Hagan's state- ment I expected that such might be offered, and I therefore took an opportunity of looking into the matter yesterday evening, and satis- 568 LEADING CRIMINAL CASES. Blasphemy — Evidence — Bible Burning. fied my mind beyond a possibility of doubt that such evidence is admissible to show intention in only one -class of case. That is, when there is an inquiry in a bankruptcy matter as to what was the - intention of a man absenting himself, or doing some one of those things which, when made in contemplation of bankruptcy, amount to an act of bankruptcy. Declarations- of such a person have been received to show intention in issues raised between third parties, because these declarations were made at the very, moment of the act, explaining the act itself, accompanying it, and therefore pars rei ges- tce ; we must thereupon reject this evidence.] O'Hag-an, Q. C, after consultation, said, that the counsel for the traverser would not call any witnesses, and requested their lordships to take a note of his having tendered evidence to the effect stated. The Attorney- General said that under these circumstances he would waive the right of the crown to a reply. Greene, B., in charging the jury, made the following observations on the indictment, and the law involved in the case: The indictment in this case charges the traverser with having contemptuously, irrev- erently, and blasphemously burned and destroyed, and caused to be burned and destroyed, a certain copy of the authorized version of the Holy Scriptures, and with having so done with intent to bring the sacred Word of God, as contained in the authorized version of the Scriptures appointed to be read in the Established Church of Eng- land and Ireland, into disregard, hatred, and contempt. In the sec- ond count he is charged with having in the like manner burned and caused to be burned, a copy of the Holy Scriptures, commonly called the Holy Bible, with the intent of bringing same into hatred and contempt amongst the people of this country. He is further charged with having procured to be burned a certain copy of the New Tes- tament with like intent; and in another count he is charged not with actually casting and throwing into the fire the Sacred Scriptures, but with causing and procuring same to be cast and thrown into the fire. There are two or three other counts which allege the intent to have been not to bring into contempt the authorized version of the Holy Scriptures, but to bring religion (that is the Christian religion) into discredit ; and in two other counts there is the same charge, with no very material alterations, to which therefore it will not be necessary to call your particular attention. Although this case has occupied a great deal of time, and given rise to much discussion, it does not appear to me to present any feature of a difficult character, so far as relates to the law on the subject. With respect to the law LEADING CRIMINAL CASES. 569 Blasphemy —Evidence —Bible Burning. of the case, there can be no doubt that the charge imputed upon this indictment to the traverser is one of a grave and serious nature, and amounts by the law of the land to a criminal offence. It has been truly stated to you that the Christian. religion is part and parcel > of the law of this land. Any publication, or any conduct tending to bring Christianity or the Christian religion into disrespect, or expose it to hatred or contempt, is not only committing an offence against the majesty of God, but is in violation of the common law of the land. Among the ways in which that offence may be committed is by exposing the Word of God, or any part of it, to obloquy or ha- tred. The highest authorities have laid down the law in that way, both ancient and modern. It is now for you, with these observa- tions, to consider, first, whether you are satisfied in the way that I have described to you, that any copy of the Holy Scriptures, or any Bjble of the authorized version, was in point of fact burned. Next whether you have any reasonable doubt that the traverser knew it and sanctioned it. He could not have sanctioned it without know- ing it ; and if you are satisfied, beyond reasonable doubt, that he did know it, and did sanction it, then it will be your duty to find him guilty of a participation in the fact, which, as I have said, does not imply the actual burning with his own hands, but the authorizing of it. But if you have a reasonable and conscientious doubt, then un- questionably it is your clear duty to give him the benefit of that doubt. With regard to the third question, it appears to me it fol- lows, as of course, that the intention of that act could only be to bring into contempt the authorized version of the Holy Scriptures. .48' 570 LEADING CRIMINAL CASES. Pleading double — Disclosure by Banker. Ke Strahan, Paul and Bates. 1 October Session, 1855. Pleading double — Disclosure by Banker. In criminal cases a defendant cannot plead a special plea in addition to the general issue. Semble, under the 7 & 8 Geo. 4, ch. 29, § 52, a disclosure of any illegal act to which the stat- ute relates, must, to be rendered available as a protection, be made tonajide, and must not be a mere voluntary statement made for the express purpose of screening the person mak- ing it from the consequences of his acts. The defendants were indicted under the 7 & S Geo. 4, ch. 29, § 52, for that they, being bankers and agents to John Griffiths, and being entrusted by him with certain bonds for safe custody, without any authority to pledge or make away with them, did sell and con- vert the same to their own use. Other counts, for negotiating, trans- ferring and pledging the same, and also for conspiracy. On being arraigned, the defendants pleaded not guilty. Sir F. Tliesiger then applied, on behalf of the defendant Strahan, that he might be allowed to plead a special plea in addition to the general issue. By the 52d section of the statute upon which the prisoners were indicted, it was enacted, that " no banker, merchant, broker, factor, atttorney, or other agent as aforesaid, shall be liable to be convicted by any evidence whatever as an offender against this act, in respect of any act done by him, if he shall at any time pre- viously to his, being indicted for such offence, have disclosed such act on oath, in consequence of any compulsory process of any court of law or equity, in any action, suit or proceeding which shall have been bond fide instituted by any party aggrieved, or if he shall have disclosed the same in any examination or deposition before any commissioners of bankrupt." A disclosure had been made, and it was the intention of the prisoners to give it in evidence, but a question might arise whether that could be done under the general issue, and therefore it was thought necessary to make an application that a special plea might be put upon the record. Alderson, B. Is there any authority for saying you can plead double in such a case as this ? The right to plead double is given by the statute of Anne, but criminal cases are expressly excepted. I think there is a reported case against you. i 7 Cox, C. C. 85. Central Criminal Court. Before Aldekson, B., Martin, B., and Willbs, J. LEADING CRIMINAL CASES. 571 Pleading double — Disclosure by Banker. Sir F. Thesiger could not produce any case in support of the application ; but he understood that such a course had been allowed. Aldeeson, B. It would be error on the record if we were to allow two inconsistent pleas. If a prisoner pleaded a declaratory plea, it used to be thought that when the issue was decided against him he had a right to plead over ; but I recollect that in one case the point was looked into by Mr. Justice Williams and myself, and we decided that it was not a matter of right for a prisoner to be allowed to plead over. It is in the discretion of the court whether such a course should be permitted or not; and in the case in question, after judg- ment given against the prisoner, he was not allowed to plead over, but at once received sentence. 1 Willes, J., concurred. It appeared_in evidence that previously to the year 1854 the pros- ecutor had deposited with the prisoners, as his bankers, 5,000 Danish bonds for safe custody. In March, 1854, the bonds were taken from their place of deposit by the prisoners, and pledged with certain per- sons as a security for the advance of a large sum of money. In June, 1854, 5,000 other Danish bonds were purchased by the prisoners, to replace those which they had pledged. That in April, 1855, the last mentioned bonds were also taken from their place of deposit, and pledged in like manner with the former ones. In June, 1855, the prisoners were duly adjudged bankrupts. On the 25th of June a meeting was held for the choice of assignees. The bankrupts appeared at that meeting, and by their counsel applied to be examined, and that they might be allowed to make 'statements with regard to the disposal of the securities that had been intrusted to them by their customers. The commissioner at first declined to allow any examination to be taken, as no creditor desired it, but he subsequently allowed a statement to be put in, and the bankrupts were permitted to depose to its truth, after which the de- position was signed by the commissioner. There was a joint declar- ation made and signed by the bankrupts. It was dated the 25th June, and was as follows : — " The above-named bankrupts solemnly depose and declare that the statement now handed in by us to the official assignee under our bankruptcy is a true statement of the matters and facts therein con- tained, and contains a correct and true account of all and every bond 1 The case referred to was probably Regina v. Faderman and others, 4 CoX's Crim. Cas. 859. 572 LEADING CRIMINAL CASES. Pleading double — Disclosure by Banker. and security which have been sold, pledged, or otherwise converted by us, or either of us, or by our direction or authority." The separate statement of Strahan was this : " The account now filed in court contains a true account of all securities of my cus- tomers at any time pledged or converted by me, and the particulars can be found in the banking books, viz., a green stock-book and ledger." Paul's statement was the same. That of Bates was in these words : " The account now filed in court contains a true account of all the securities of the customers of our firm at any time pledged or converted by any of the partners thereof, and the particulars can be found in the banking books, namely, a green stock-book and ledger." The account referred to was put in and read in part. Among other things, it stated that the 5,000 Danish j5 per cents, of the pros- ecutor bought by them (date not specified) were deposited with Messrs. Overertd and Co. on the 13th April, 1855. It appeared that on the statements and the account being put in, the solicitor for the fiat examined each bankrupt as to the truth of the statement and of the account. Byles, Sergeant, in addressing the jury, submitted several points of law for the consideration of the court. First — Was what took place in the Court of Bankruptcy such a disclosure as was contemplated by the act. It seemed to have in view not only a compulsory exam- ination, but also a voluntary, or even what might be called an offi- cious deposition. If the bankrupt underwent an examination, or made a deposition under any circumstances, the act would seem to protect him. But this was not a merely voluntary or officious state- ment, because by the declaration necessary to be made under the Bankruptcy Act a bankrupt was bound to make a full disclosure of all his property and effects. Here, however, the bankrupts were actually examined by the solicitor to the fiat. Then, again, it would seem that the statement made by the bankrupts, coupled with the account to which it referred, merely disclosed the dealing in April, 1855, with the substituted Danish bonds, whereas the indictment charged the pledging the original ones in March, 1854 ; but the state- ment referred the assignees to the books, which thereby became incorporated with it, and by them it would appear that the original bonds were disposed of at the time in question. The Attorney- General, in % reply, submitted that inasmuch as the charge in the indictment referred to the first disposal of Dr. Griffiths's bonds, any disclosure with regard to the subseauent disDosal of the LEADING CRIMINAL CASES. ,• 573 Pleading double — Disclosure by Banker. substituted bonds would not bring the defendants within the pro- tection of the act. And, further, that a voluntary statement, made under the circumstances detailed in evidence, was not such a dis- closure as the statute contemplated. Aldeeson, B. (in summing up.) If the defendants disposed of the original securities, any subsequent disclosure with respect to the sale of the substituted securities can be no answer to the charge. It is a disclosure of that which is no offence as an answer to something that is one. The statute is, no doubt, singularly worded, and its framers probably never dreamed that any such question would arise upon it as had been broached in the present case. But even if the disclosure had related to the subject-matter of the indictment, I am of opinion that it would not have been available. It never could have been intended that a person, by voluntarily disclosing any act, could evade the penalties of the misdemeanor to which such act had rendered him liable. People cannot thus be allowed to play fast and loose with the criminal law, now rendering themselves liable to be transported for fourteen years, and then by a mere process, got up for the purpose, voluntarily absolving themselves from the conse- quences of their acts. I have thought it right thus to express my opinion on this point, although it scarcely arises in the case, and in that opinion my learned brothers beside me concur. The Attorney-.General, Bodkin, and Poland for the prosecution. Sir F. Thesiger and Ballantine for Strahan. Sergeant Byles and Hawkins for Sir J. Paul. E. James, Q. C, and Parry, for Bates. 574 • LEADING CRIMINAL CASES. Indictment — Allegation of Property — Surplusage. Regina v. John Radley. 1 June 23, 1849. Indictment — Allegation of Property — Surplusage. An indictment charged a larceny of " two pieces of the current silver coin of the realm called shillings, of the goods and chattels of A. B." Held, that though " goods and chattels " was an incorrect description of money, those words might be rejected as surplusage, and that then there was a sufficient allegation that the money belonged to A. B. At the adjourned Epiphany Quarter Sessions, holden at Chelms- ford, in and for the county of Essex, John Radley was convicted of felony, subject to the opinion" of the judges upon the following case : — The indictment against him alleged that "John Radley, late of the parish of Stifford, in the county of Essex, laborer, on the 3d day of February, A. D. 1849, with force and arms, at the parish aforesaid, in the county aforesaid, two pieces of the current silver coin of this realm called shillings, of the value of two shillings, of the goods and chattels of Samuel Fitch, then and there being found, feloniously did steal, take and carry away, against the peace of our lady the Queen, her crown and dignity." It was objected that the indictment was defective in not stating to whom the shillings alleged to be stolen belonged, the words " of the goods and chattels of Samuel Fitch," being insensible as applied to money. The court respited the judgment in order that the opinion of the judges might be taken upon the validity of the objection. No counsel were instructed to argue the case ; but it stood for argument on the 30t.h of April following, and was considered by the judges, Wilde, C. J., Rolfe, B., Cressvvell, J., Piatt, B., and Williams, J. Cur. adv. vult. Wilde, C. J., now delivered the judgment of the court. The pris- oner in this case was convicted at the last Epiphany Sessions at Chelmsford, for having stolen two shillings from Samuel Fitch, when a case was reserved for the opinion of the judges upon an objection to the indictment. The indictment charged the prisoner with having stolen two pieces of current silver coin of the realm called shillings, of the value of two shillings, of the goods and chattels of Samuel i 3 Cox, C. C. 460; Temple & Mow, C. C. 144; 2 Carrington & Kirwan, 974: 1 Denison, C. C. 450. LEADING CRIMINAL CASES. 575 Indictment — Allegation of JProporty — Surplusage. Fitch. It was objected on the part of the prisoner that the indict- ment is inconsistent and bad in charging the shillings, the current coin of the realm, to be goods and chattels ; and as that is the prop- erty stolen, and no other property is alleged to be stolen, described under the terms " goods and chattels," the indictment cannot be sus- tained. This case has been considered, and we are of opinion that the objection cannot be sustained, and that the indictment is sufficient. It may be true that money does not correctly come within the tech- nical definition of goods and chattels. Rex v. Gup, 1 Leach, C. C. (4th ed.) 241, and Rex v. Morris, 1 Leach, C. C. (4th ed.) 109 ; as is also stated in Foster's Crown Law, 79 ; * but it is unnecessary to enter into the consideration of that question. This indictment charged the prisoner with having stolen two pieces of the silver coin of the realm called shillings, which is an accurate description of the property stolen. We think in reading the indictment the words ■ " goods and chattels " ought to be rejected as surplusage ; then as the charge in the indictment is that the prisoner stole two pieces of cur- rent silver coin of the realm of the value of two shillings of Samuel Fitch, which is a sufficient allegation that the coin stolen was the property of Samuel Fitch, we think it is immaterial that the current coin of the realm was afterwards inaccurately described as goods and chattels ; the conviction therefore is proper. Conviction affirmed. See contra, Long's case, Cro. Eliz. 490, -without any intendment to the contrary ; cited in Hawk. P. C. lib. 2, ch. 25, § 71. and here it may be that this piece of linen William Long was indicted at Norwich, was not the goods and chattels of A. N. of the felonious stealing of a piece of linen at the time of the taking of them, but by cloth. The indictment was removed by him let out, or delivered, or pledged to certiorari and several exceptions taken, another ; and it ought to have been shown The 1st and 2d were overruled. The 3d whose bona et catalla they were, &c. was as follows : " Because the indictment And the court held it to be a material ex- is quod felonice furatus fuit quondam peci- ception for the reasons aforesaid ; and for am panni linei cujusdam A. N. Sfc. and that cause the indictment was discharged doth not say de bonis et catallis cujusdam by the whole court, Oawdy absente, and A. N., as the common form of the prece- restitution awarded to the party for his dents is, and therefore ill ; for an indict- goods seized for that cause." The indict- ment ought to be certain to every intent, ment there was in the precise form ol^lic 1 Fost. Cr. L. 79. "But it hath been very rightly holden that money is not within the act (10 & 11 Will. 3, ch. 23, &c.) the words being 'goods, wares, and merchan- dises ; ' for although the word goods may in a large sense take in money, and often doth, yet being connected with wares and merchandises, the safer construction of so penal a statute will be to confine it to goods ejusdem generis, goods exposed to sale;" and reference is there made to 1 P. Wms. 267, 3 P. Wms. 112 ; and to a case of Geo. Grimes, indicted at Maidstone Lent Assizes, 1752, upon stat. 24 Geo. 2, ch. 45. (See Regina v. Grimes, 2 East P. C. G46. See also Regina v. Leigh 1 Leach C. C. 50 ; Regina v. Thomas Mills, ib. 43.) 576 LEADING CRIMINAL CASES. Receiving Stolen Goods — Manual and Constructive Possession. indictment in the present case after reject- delivering the opinion of the Court, said : ing the words " of the goods and chattels." Although bank notes or bills may not, But in Massachusetts, the doctrine of the perhaps, be properly termed goods and principal case has been very recently af- chattels, in an indictment, yet in the pres- firmed, notwithstanding the remarks of ent case the words, " gf the 'goods and Dewey, J., in Commonwealth v. Williams, 2 chattels," may be rejected as surplusage, Cushing, 587. Eastman v. The Common- and the remaining words in the indict- wealth, 3 Gray, (not yet published.) The ment will constitute a sufficient charge of indictment charged that the defendant, larceny. So 'are the English decisions, " one bank bill of the denomination of one Rex v. Moriis, 1 Leach, C. C. (4th ed.) hundred dollars and of the value of one 109 ; Regina v. Radley. And they con- hundred dollars, one gold half eagle of the form to our own decisions in analogous value of five dollars, and one wallet of the cases. Commonwealth v. Simpson, 9 Met- valueof fifty cents, of the goods and chattels calf, 138; Commonwealths. Bolkom, 3 of one A. B., then and there from the per- Pickering, 281. See also Commonwealth son of the said A. B. feloniously did steal, v. Mosely, 2 Virginia Cases, 154. take and carry away, etc." Metcalf, J., in H. Regina v. Thomas Smith. 1 June 2, 1855. Receiving Stolen Goods — Manual and Constructive Possession. The prisoner was indicted for receiving a watch, knowing it to have been stolen. It appeared in evidence that the prosecutor, whilst in company at night with a prostitute at a public house where the prisoner and one H. and several other persons were, had the watch in question taken from his person, and charged the prisoner with stealing it ; but upon a par- tial search by a policeman, it was not found. The prosecutor and the girl soon after went to a room in another house, which room was rented by her of the prisoner. After they had been there together about an hour the prisoner came to them, and asked the prosecu- tor if he had not lost his watch, and what he would give to have it back 1 The prosecutor said, " I would give a sovereign." The prisoner then said, that if the prosecutor would let the girl go with him he would get it back. The prisoner and the girl then went to a room in a house where the prisoner lived, in which room H. was. There was a table in the room, and, although there was no watch on the table when they entered the room, a watch was a few minutes afterwards seen on the table, which one of the witnesses said, must have been placed there by H. The prisoner told the girl to take the watch and get t sovereign. She took it to her room to the prosecutor, and in a few minutes the pris- r and H. came to that room, and H. asked for the reward. The prosecutor gave H. half a crown ; the prisoner and H. left without the prisoner saying any thing or receiving any thing. Before the trial H. absconded. The Recorder told the jury that, if they be- lieved that when the prisoner went to the girl's room and spoke about the return of the watch, and took the girl with him to the house where the watch was given up, he knew that the watch was stolen ; and, if they believed that the watch was then, with the cog- nizance of the prisoner, in the custody of a person over whom the prisoner had absolute control, so that it would be forthcoming if the prisoner ordered it, there was evidence to i 33 Eng. Law and Eq. Rep. 531 ; G Cox, C. C. 554. Before Campbell, C. J., Alderson, B. Eble, J., Platt, B., and Crowder,- J. LEADING CRIMINAL CASES. 577 Receiving Stolen Goods — Manual and Constructive Possession. justify a conviction. The jury found a verdict of guilty ; and, in answer to the Recorder, stated their belief that though the watch was in the hand or pocket of H., it was in the absolute control of the prisoner. Held, 1 , That the direction to the jury was right. 2. That the conviction was right, and that there was ample evidence to support it. 3. That manual possession or touch™ unnecessary in order to sustain such a conviction ; but it is sufficient if there is a control by the receiver over the goods. 4. That a person having a joint possession with the thief may be convicted as a receiver. 5. That a conviction for receiving is good, although a conviction for stealing would have been supported by the same evidence if the jury had so found. The following case was reserved for the opinion of the Court of Criminal Appeal by Mr. Edwin James, Q. 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 feloniously receiving a stolen watch, the property of John Nelson, knowing the same to have been stolen. It was proved that John Nelson, the prosecutor, between eleven and twelve o'clock on the night of the 12th of April in this year, was in a public-house called the Globe, in Edward street in the said borough ; he was in company 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 apartment in the Globe Inn when the prosecutor and Charlotte Dun- can entered ; while the prosecutor was drinking in the Gld^3, 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 present all the time. Soon after the loss of the watch the prosecutor and the girl Charlotte Duncan went together to Charlotte Duncan'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 your watch ? " The pros- ecutor said : " Yes." The prisoner then said : " What would you give to have your watch back again ? " Prosecutor said : " I'd give a sovereign." Prisoner then said: ^ Well, then, let the young wo- man 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. 49 578 LEADING CRIMINAL CASES. Receiving Stolen Goods — Manual- and Constructive Bossession. 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 staled 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 Char- lotte Duncan to take the watch and go and get the sovereign. She took it to the room in 17 Thomas street, to the prosecutor, and in a few minutes the prisoner and Hollands came to thaj 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 any thing," nor did the witnesses see him receive any money. Hol- lands absconded before the trial. The Recorder told the jury that, if they believed that when the prisoner went into the room 17 Thomas street, and spoke to the prosecutor about the return of the watch, and 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 prisoner 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's 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 second day of June, 1855, before Lord Campbell, C. J., Alderson, B., Erle, J., Platt, B., and Crowder, J. No counsel appeared for the crown. Creasy, for the prisoner. The direction under which the verdict was returned was wrong in point of law. First, there was no suffi- cient proof of possession by the prisoner, and the Recorder was not justified in leaving it to the jury to consider whether the watch was in the prisoner's absolute control. Secondly, if Hollands's possession is to be treated as the possession of the prisoner, there is no proof that the watch was stolen by any one. Thirdly, the evidence uoints LEADING CRIMINAL CASES. 579 Eeceiving Stolen. Goods — Manual and Constructive Possession. rather to a stealing than a receiving by the prisoner. With respect to the possession^ the watch by the prisoner, it was clearly never in his manual possession, nor can it, upon the facts, be said, that it was ever constructively in. his possession. Assuming the watch to have been stolen by some one, and that one to be Hollands, it was throughout in the possession of Hollands, and not in the possession of the prisoner; nor can it be said that a constructive possession arose from any control which the prisoner could have over Hollands, who was a man of full age. In Regina v. Wiley, two thieves were seen to come at midnight out of a house belonging to the prisoner's father. One of the thieves carried a sack containing the stolen goods, 'the other thief accompanied him, and the prisoner preceded them, carrying a lighted candle. All three went into an adjoining stable belonging to the prisoner, and shut the door. Policemen en- tered the stable, and found the sack lying on the floor, tied at the mouth, and the three men standing round it as if they were bar- gaining, but no particular words were heard. In that case it was held by eight judges to four, that on this evidence the prisoner could not be convicted of receiving stolen goods ; inasmuch as, although there was evidence of a criminal intent to receive, and of a knowl- edge that the goods were stolen, yet the exclusive possession of them still remained in the thieves, and therefore the prisoner had no pos- session, either actual or constructive. So here, supposing the watch to have been stolen by Hollands, there was nothing to shovv a re- ceiving by the prisoner from Hollands, and the prisoner's statement merely shows that he thought he had the means of inducing the person who had stolen the watch to give it up. In Regina v. Wiley, Patteson, J., says : " I do not think it necessary that in order to con- stitute a man a receiver he should touch the goods, or that, under certain circumstances, a party having a joint possession with the thieves, may not be convicted as a receiver, but I think, to make a person liable as a receiver, the goods must be under his conbul." Parke, B., in his judgment in the same case, says: " ItUlems to me that there must be a distinction made between receiving the stolen goods and receiving the thief." The finding of the jury in this case amounts to this, that the physical possession was in Hollands, and that there was no actual possession by the prisoner. Then, is there any thing to show a constructive possession by him ? Hollands placed the watch on the table, but it remained in his personal possession all the time, and never was in the posses- sion of the prisoner at all. [Alderson, B. Is there not evidence here of a joint possession by the thief and the prisoner ? If you admit that, you are out of court. 580 LEADING CRIMINAL CASES. Receiving Stolen Goods — Manual and Constructive Possession. Erle, J. Can you extract a definite principle on that very vaguest of all vague matters ; what is the meaning of the word possession ?] The only way to do that is by an exhaustive process showing what is not a possession. Proving that a person is present with a corrupt purpose, when stolen property is lying about, is not a receiv- ing. Here the prosecutor taxed the prisoner with the theft, and indeed, supposing there to be possession, and taking the finding of the jury that the watch was under the absolute control of the prisoner to be correct, the recent possession is proof of stealing and not of receiving. In 2 Russ. on Crimes, 247, it is laid down that upon an indictment for receiving stolen goods, there should be some evidence to show that the goods were in fact stolen by some other person, and recent possession of the stolen property is not alone sufficient to sup- port such an indictment, as such possession is evidence of stealing and not of receiving ; and for this the decision of Patteson, J., in Rex v. Densley, 6 Car. & P. 399, is cited ; and in Rex v. Sarah Gordy, Gloucester Lent Ass. 1832, cited 2 Russ. on Cr. 248, Littledale, J., says : " In a case on the early part of the circuit, the only evidence was recent possession, and the counsel for the prosecution urged that that was evidence of receiving, but I held that it was not. I hold it essential to prove that the property was in the possession of some one else before it came to the prisoner." Then does not all the evidence in this case point to a theft by the prisoner, and not a receiving by him after the theft was committed by some other person ? There is no evidence of receiving unless you take the evidence which is said ,to show possession, and that points to a stealing and not to a receiving. 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 well as to the dicta of learned judges, manual possession is unnecessary. If we were to hold a contrary doctrine, many receivers must escape with imp^ity. 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 pro- ceeds. Then, was not there ample evidence to justify the jury in coming to the conclusion 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 conclu- sion, 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 LEADING CRIMINAL CASES. 581 Receiving Stolen Goods — Manual and Constructive Possession. watch remained in his exclusive possession, and that the prisoner acted as his agent in restoring the watch to the prosecutor; but the jury have come to a different conclusion, and I think they were jus- tified 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 employer. In this case, Hollands may have been so employed by the prisoner, and the watch may have been under the prisoner's control, and if so, there was evi- dence of a possession both by Hollands and the prisoner. ™ Alderson, 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. Erle, J. The doubt in these cases has arisen as to the meaning of the word " receive," which has been supposed to mean manual possession by the receiver. In Regina v. Wiley, Patteson, J., says that a manual possession, or even a touch, is not essential to a receiv- ing, but that there must be a control over the goods by the receiver. Here the question of control was left to the jury, and they expressly found that though the watch^vas in Hollands's 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 case, the jury might well find that Hollands was the thief and the prisoner the receiver. Crowder, J. I also think that both the direction and the convic- tion were right. There was sufficient evidence that Hollands was the^hief. 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 sufficient to support their verdict, and the conviction was right. Conviction affirmed. 49* 582 LEADING CRIMINAL CASES. Receiving Stolen Goods — Manual and Constructive Possession. Regina v. Wiley. 1 November 26, 1850. Receiving Stolen Goods — What amounts to a Receipt — Manual and Constructive Possession. A., B., and C. were jointly indicted for stealing and receiving some fowls. It was proved that A., carrying a sack containing stolen fowls, went with B., at half-past four in the morning, into the house of C.'s father ; that in about ten minutes' time A. (still carrying the sackflp came out at the back door with B., preceded by C. with a lighted candle ; that C. was the only member of the family up in the house ; that the three went together into a stable on the same premises ; that the police went into the stable after them, and found the sack lying on the floor, and the three men standing round it as if bargaining. The bench told the jury, that the takingof A. and B. with the stolen goods by C. into the stable over which he had the control, for the purpose of negotiating abojit the buying of them, he well know- ing the goods to have been stolen, was a receiving them within, the meaning.of the statute. The jury convicted A. and B. of stealing the fowls, and C. of receiving the fowls, knowing them to have been stolen. Upon a case, stating the above facts, the, question asked being whether the conviction of C. was proper : — Held, by a majority of the judges (eight to four,) that the conviction was wrong. The majority were of opinion that C. did not receive the fowls, as they all along remained in the manual possession of A. and B., and were neper under C.'s control, and it was not the intention of A. and B. that C. should have them, except on the contingency, which never happened, of his completing a bargain for them. The minority held, that as C. cooperated with A. and B. in the common purpose of carrying the fowls into the stable, he had a joint possession with them, and that as he knew that the fowls were stolen, and assisted in the removing them for the purpose of negotiating about the purchase, he had a possession with a wicked purpose, and therefore might properly be convicted as a receiver. , The opinion of the judges was requested on the following case : — At the General Quarter Sessions of the Peace for the County of Northumberland, holden by adjournment at the Moot Hall of the same county, in the castle of Newcastle-upon-Tyne, in the same county, on the 26th of February, A. D. 1850, Bryan Straughan, George Williamson, and John Wiley, were jointly indicted for steal- ing and receiving five hens and two cocks, the property of Thomas Davison. It was proved, that on the morning of the 28th of January, in the same year, about half-past four, Straughan and Williamson were seen to go into the house of John Wiley's father, with a loaded sack, that was carried by Straughan. John Wiley lived with his father in the said house, and was a higgler, attending markets with a horse and cart. Straughan and Williamson remained in the house i 20 Law J. Rep. (n. s.) M. C. 5 ; 15 Jurist, 134 ; 4 Cox, C. C. 412 ; 2 Denison, C. C. 37 ; Temple & Mew, C. C. 367. , LEADING CEIMINAL CASES. 583 Receiving Stolen Goods — Manual and Constructive Possession. about ten minutes, and then were seen to come out of the backdoor, preceded, by John Wiley with, a candle, Straughan again carrying the sack on his shoulders, and to go into' a stable belonging to the same house, situated 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 protruding. The bag, when opened, was found to contain six hens, two cocks, and nine 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 " that he did not think he would have bought the hens." The jury found Straughan and Williamson guilty of stealing the poultry laid in the indictment, and John Wiley guilty of receiving the same, knowing it to be stolen. The bench told the jury that the taking of Straughan and Wil- liamson, with the st<#en 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 hini within the meaning of the statute. The question for the opinion of the court was, if the conviction of Wiley was proper. Otter, for the prisoner. The conviction is wrong. The direction of the chairman of the Quarter Sessions does not lay down a correct rule. Wiley ought not to have been convicted unless he had posses- sion of the property. He never did receive it at all within the mean- ing of the stats. 3 W. & M. c. 9, the 22 Geo. 3, c. 58, and the 7 and 8 Geo. 4, c. 29, s. 54. Wiley's leading the thieves into the stable was no receipt of the stolen property by him. The thieves retained the actual possession of the property all the time. There cannot in law be a joint possession by the thief and receiver. The thief, it is sub- mitted, must have parted with the possession to another person, to constitute the latter a receiver. The Queen v. Parr, 2 Moo. & R. 346. If a thief says to a friend, " I have here a stolen watch, will you buy it ? " and the friend answers, " Come home to my house with it, and sleep there, and we will talk about it in the morning," and the thief goes to his friend's house, and sleeps there with the watch in his pocket, the owner of the house, it is submitted, could not be convicted as a receiver. [Lord Campbell, C. J. Suppose a thief brings a large hamper to a friend's house, and tells him it contains stolen goods, and asks 584 LEADING CRIMINAL CASES. Receiving Stolen Goods — Manual and Constructive Possession; permission to leave it in the house all night, could not the owner of the house be convicted as a receiver?] If the thief left the hamper, he would be liable; but not so if the thief remained with the hamper all the time. The fact of the bar- gain being made in Wiley's father's stable, cannot affect Wiley's lia- bility as a receiver any more than if it were made on a common or in a field. [Lord Campbell, C. J. Suppose the policemen had come in just after the bargain ha*d been concluded, and before the fowls had been handed over to Wiley, do you contend that in that case Wiley could not have been convicted as a receiver ?] The conclusion of the bargain, it is apprehended, would have made no difference, if the possession of the property had not been delivered to Wiley. The Queen v. Hill, 1 Den. C. C. 453 ; s. c. 18 Law J. Rep. (n. s.) M. C. 199, shows that when goods are sent by a common car- rier, consigned to a particular party, although by law the consignee of goods so sent has a potential possession as soon as they are deliv- ered to the carrier,. yet the consignee cannot be convicted as a receiver without an actual delivery to him. What is sufficient as a receipt for civil purposes is not enough to affect a person with criminal lia- bility as a receiver. In Farina v. Home, 16 Mee. & W. 119 ; s. c. 16 Law J. Rep. (n. s.) Exch. 73, it is said, by Parke, B., that a teceipt is "the delivery of the possession of the goods on behalf of the vendor to the vendee, and the receipt of the possession by the vendee." If Wiley had refused to give the price the thieves asked for the fowls, they would have been able to have taken them away. Wiley cannot be made criminally liable for a receipt which would not have been suffici,ent under the Statute of Frauds. It may also be observed, that the house and stable were not in the possession of Wiley, but of his father. [Lord Campbell, C. J. Suppose Wiley had said, " Let me feel the fowls," and had taken them into his hands, could you contend that he would not then have had the possession?] Perhaps not ; but here he never had the fowls in his hands, or the power to take them into them. He intended to obtain possession, but the bargain being incomplete, he never did obtain it. Wiley never had any manual possession of the goods, and it is quite clear that the thieves never intended that he should -have them, until the price was agreed upon and the bargain completed. The thieves had such a possession that they might have maintained trespass ; Purnell v. Young; 3 Mee. & W. 288 ; s. c. 7 Law J. Rep. (n. s.) Exch. 80 ; Aslmore v. Hardy, 7 Car. & P. 501 ; or brought an indictment for larceny against any one who should have stolen the property from them. The King- v. Wilkins, 2 Leach, C. C. 582. LEADING CKIMINAL CASES. 585 Receiving Stolen Goods — Manual and Constructive Possession. Liddell, for the Crown. There is sufficient evidence stated in the case to warrant the conviction. In East's P. C. 765, it is thus laid down : " As to what general evidence shall be held to constitute a receiver under the statutes of William and AnneJ and€2 Geo 3, c. 58, it is to be observed,^that the words are in the disjunctive, " receive or buy." Therefore, it follows that, in order to constitute a receiver generally so called, it is not necessary that the goods should be actu- ally purchased by him, neither does it seem necessary that the re- ceiver 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 so as to favor the thief, or without lawful authority express or to be implied from the circumstances." The same position is upheld in The King v. Davis, 6 Car. & P. 177. The King v. Richardson, Ibid, 335, shows that a man may be a receiver without having any interest or profit in the stolen property. The law of delivery and acceptance, under the Statute of Frauds, has no bearing on the pres- ent question. The receiving the thieves into the house, in the first instance, was sufficient to warrant the conviction. 4 Wiley had a con- structive possession, by reason of his assisting the thieves in carrying the. sack, inio the stable. Either an actual or constructive possession is sufficient to render a man a receiver. His carrying the candle, to help the man who carried the sack, amounts to the same thing as if he had carried the sack himself. There may be an actual possession without manual possession. If a person receive stolen goods into his possession in any manner malo animo, he may be convicted as a receiver. Rex v. King, Euss. & R. 332. The expression " have in possession," which is nearly equivalent to the term " receive," is de- fined in the interpretation clause of the stat. 2 Will. 4, c. 34, s. 21, relating to the possession of counterfeit coin to mean " having in any place as well as having in personal possession," and persons who had no personal possession of counterfeit coin have been convicted under it as having it in their possession. The Queen v. Rogers, 2 Moo. C. C. 85. The Queen v. Gerrish, 2 Moo. & R. 219. Oiler replied. After retiring to consult for a short time, the judges returned and delivered their opinions seriatim. , Martin, B. I am of opinion that this conviction is wrong. The question turns upon the construction of the stat. 7 and 8 Geo. 4, c. 29 s. 54, and on the meaning to be put upon the word "receive," used in that section. The true rule for the construction of a statute is, as Parke, B., lays down in Becke v. Smith, 2 Mee. & W. 191 ; s. c. 6 Law J. Rep. (n. s.) Exch. 54, " to adhere to the ordinary meaning 586 LEADING CRIMINAL CASES. Keceiving Stolen Goods — Manual and Constructive Possession. of the words used and to the grammatical construction, unless that is at variance with the intention of the legislature, or leads to any- manifest repugnancy." The question is, What was meant by the word "receive," as applied to this case ? It appears that two men stole some fowls, put them into a sack, and ,brought them into the- house of "Wiley's father, for the purpose of selling them to Wiley ; that they all three went out of the house into the stable, the thieves carrying the sack, and Wiley preceding them with a candle ; that the stable door was shut, and that the policemen on opening it found the sack on the ground and three men standing round it as if bargaining. Upon this case 1 am of opinion that Wiley never did receive these articles. I entirely agree that the question arises upon the possession. There was no property in these fowls in any of them. The men who stole the fowls had them in their possession, and intended to hold them hostilely to Wiley, and never intended to let him have them, unless some bargain were made between themselves and Wiley for, the purchase of them. , I think that, in the ordinary acceptation of the word " receive,'' Wiley could not be said to have received this property, and that, therefore, he ought not to have been convicted. • * Talfourd, J. I also am of opinion that this conviction was wrong. The question turns entirely upon the meaning to be put upon the word " receive" in the statute. Neither Wiley nor the thieves had any property in the stolen goods ; but the parties asserting the pos- session are the two thieves, and the position of Wiley was such as to exclude the notion of his having the possession, as he was engaged in trafficking for the purchase of them. The whole matter seems to me to have been only inchoate. Williams, J. I am of opinion that the conviction was right. I think that the case was made out against Wiley, if it were made out that he had possession of the fowls with a corrupt and wicked mind. There is no doubt that he knew that the fowls were stolen. The only question is, whether he had the possession of them. Now, the three men had a common purpose of carrying the fowls to the stable. In order to effectuate that common, purpose, it was necessary that one of the party should have manual possession of the goods, and accordingly one of them had, but not Wiley. Nevertheless, as the act was done in the execution of the common purpose, they were all, in my judgment, agents one for the other in the execution of that common purpose, and the possession of the one was the possession of the other. Wiley therefore had, I think, such a possession as to justify his being convicted as a receiver of the stolen property. LEADING CRIMINAL CASES. 587 , Receiving Stolen Goods — Manual and Constructive Possession. Platt, B. I am of opinion that the conviction was wrong. In order to constitute Wiley a receiver, I think that it was necessary to show that the goods were in such a position as to be in his dominion as between him and the thieves, and exclusive of that of the thieves. It is urged, that while Wiley was lighting them with the candle, and the sack was being carried into the stable, they all three had a joint possession. But I think that no such construction ought to be put upon that circumstance, as no bargain was begun at the time ; and the thieves retained the possession and control over the goods. It seems to me too much to say that a party can be treated as guilty of receiving stolen goods who only contemplated receiving them if the bargain were completed. Erle, J. I am of opinion that the conviction is right, and on two grounds. The first ground is because Wiley cooperated with the thieves in removing the goods into the stable, which was under Wiley's control, for the purpose of more securely effecting a bargain, respecting them. Now, if Wiley had taken part in the actual carry- ing of the goods, there would have been no doubt, I believe, in the minds of many of my brothers but that he would have been rightly convicted. But he lighted a candle, and preceded the thieves, while they carried the sack; and I think that in so doing he cooperated with them so as to render himself liable to be convicted as a re- ceiver. I come to "this conclusion on the principle of law that a per- son who assists a thief in removing to a place of safety goods which the latter has already removed from the owner's premises, cannot be convicted of larceny ; but it seems to me that the person who so co- operates is a criminal, and that the law would reach him as a ' receiver. The other ground on which I think that this conviction may be sustained is, that I attach a wider meaning to the word " re- ceive" than has been given to it by some of my brothers. The rules respecting property which have relation to civil rights seem to me tp have no application here. Several statutes have been passed to ren- der an accessory after the fact more open to punishment than he was at common law. I think that the word "receive, with respect to stolen goods, should be construed with reference to the word " harbor " applied to the thief. If a man harbors the stolen goods, knowing them to be stolen, for the purpose of aiding the thief, he is liable under the statute as a receiver. If he is the owner of a stable, and authorizes thieves to deposit stolen property on the premises, he would be liable in like manner ; and it seems to me that he is not the less liable bedause the thieves remain there also. If they bring the property there with his consent, he is, I think, guilty of receiving it. The earlier statutes did not contemplate that there must be any 588 LEADING CEIMINAL CASES. Receiving Stolen Goods — Manual and Constuuctire Possession. bargain or transfer of the goods to a man to constitute him a receiver. In the 29 Geo. 2, c. 30, it was made an offence to leave the window, door, or shutter of any premises open at night for the purpose of offering a thief a place of deposit for any stolen lead, or other metal. In East's P. C. 765, it is expressly laid down, " that it is not necessary that the goods should be actually purchased by him, nor 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." So in 2 Russ. on Crimes, 247, the fol- lowing expression of Taunton, J., in summing up to the jury in The King v. Richardson, is adopted : " If the prisoner receive^ the prop- erty 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. It is a receiving within the meaning of the statute." On both these grounds I am of opinion that the conviction is right. I may add, that on the second ground I take into my consideration the facts stated in the case which are not adverted to in the summing up. Cresswell, J. I agree with my brothers Erie and Williams in holding that this conviction is right. I take it that the direction em- bodies all the circumstances under which the men went into the stable. Now, "Wiley brought a light, preceding the thieves, as they carried the sack. He, therefore, was assisting them in carrying the goods into the stable. If the goods had been sat aside by the other two, but had not been finally removed from the premises of the owner, and Wiley had gone with them to assist in removing them from the place where tlrey were left, and had carried a candle to assist in removing them, he would without doubt have been guilty of an asportation and larceny. He must, therefore, have had a joint pos-. session. But if we merely substitute a place of deposit for the prem- ises of the owner, and suppose that Wiley assisted in like manner in removing the goods from that place, there must, in this case, also, be a joint removing by them all. In the very act of removing the goods into the stable, for the purpose of negotiating for the purchase of them, I think that Wiley became a receiver of them within the meaning of the statute. If it were necessary, I should be inclined to concur with my brother Erie, in giving a larger interpretation to the word " receive" than some persons put upon it. But it does not, I think, become necessary to do so for the determination of this case. Maule, J. I think that the conviction is wrong. Coleridge, J. I also think that the conviction is wrong. If the direction of the bench to the jurv hp construed strictlv. it nerhans LEADING CRIMINAL CASES. 589 Eeceiving Stolen Goods — Manual and Constructive Possession. might limit us in deciding whether Wiley was properly convicted as a receiver to a consideration of this state of facts, that Wiley led the thieves into the stable, with a guilty knowledge that the goods were stolen, for the purpose of bargaining for them. But I think it far better to consider the question with referen.ce also to the taking the goods to Wiley's father's house. Wiley then was proved to have been in the house with the thieves, who had the goods in their pos- session, and to have helped them, with the goods in their possession, to a place under his control ; and he did this with a knowledge that the goods were stolen, and with the purpose of buying them under a contingency which never happened. It is not the case of a joint possession, in my view of it. In my opinion, " receiving " must im- port possession, actual or constructive. I cannot find either here. I think, therefore, that the conviction is wrong. It is of great importance that in the administration of the criminal law we should proceed upon broad principles of construction, intelligible to common understand- ings. Patteson, J. I think that the conviction is wrong. I do not think it necessary, that in order to constitute a man a receiver it is neces- sary that he should touch the goods, or that under certain circum- stances a party having a joint possession with the thieves may not be convicted as a receiver ; but, I think, to make a person liable as a receiver, the goods must be under his control. Now, here the goods remained all along in the manual possession of the thieves. All that Wiley did was to conduct the thieves to a place where he proposed to bargain for the purchase. How far the circuinstance of their being found with the sack lying on the floor between them might affect him as a receiver, I cannot inquire, for the chairman put the question upon the taking the thieves into the stable. But I am inclined to think that that fact would not have been sufficient to fix Wiley as a re- ceiver, for it was not intended that the goods should be taken by him until the bargain had been completed. Alderson, B. I agree with the majority of the judges in holding this conviction wrong. There was nothing to show that the goods ever were out of the manual possession of the thieves. If the prop- erty had ever been out of their possession while in the house with Wiley, and Wiley had afterwards joined with them in removing the goods to another place, he might, I think, have been found guilty as a receiver. But there is nothing to prove that the sack was ever removed from the back of Straughan during all the time, nor is there any thing to show any previous concert between Wiley and the thieves. Wiley intended to bargain for the fowls, and to take the 50 590 LEADING CRIMINAL CASES. Receiving Stolen Goods — Manual and Constructive Possession. possession of them if the bargain was completed. There must be, in all cases, some dividing point as to when the receiving commences, but in this case, I do not think that the dividing point was reached. The summing up of the Bench gave, in my judgment, an inaccurate rule for the direction of the jury. Parke, B. I am of opinion that the conviction was wrong. We must consider only the precise point submitted to us, and not specu- late what the evidence might have proved in the opinion of the jury, had the case been properly submitted to them. I think that the word " receive " in the statute is to be understood, in its ordinary accepta- tion, as meaning either actual or constructive receipt. The taking Straughan and Williamson into the stable did not, in my opinion, give any possession to Wiley, for the two former never intended to- part with the goods ; nor was it meant that Wiley should have the posses- sion of them, except, as my brother Coleridge put it, on the contingency of his becoming a purchaser. The sole question is, whether the lead- ing the thieves into the stable was a receiving of the goods. Now, it seems to me, that there must be a distinction made between receiving the stolen goods, and receiving the thief. It is not, I think, a receiving of the stolen goods if you receive the thief with the stolen goods. The receiving the men with the sack into the stable, is not more a receiving of the stolen goods, than the receiving a thief, who, to the party's knowledge, has a stolen watch in his pocket, is a receiving of the watch. Lord Campbell, C. J. I think that the conviction was right. In my opinion, there is a receiving within the meaning of the statute, whenever a person knowing that goods are stolen has possession of them for a bad purpose. It is immaterial whether he claims any property in them. We are to look simply, to whether there was a possession malo ariimo. In this case there was no manual possession by Wiley, but there may be a possession without a manual possession. The sack containing the fowls was brought to Wiley's father's house, and Straughan, Williamson, and Wiley 'entered into the common purpose of carrying the sack from the house to the stable over which Wiley had the control. That was an illegal purpose. For the execu- tion of that purpose, Wiley, I am of opinion, was in possession of the goods. There was no intention, indeed, on the part of the thieves, of parting with the property to Wiley ; but he entered with them into the common purpose of carrying the sack into the stable. Though Straughan carried the sack on his back, Williamson must be taken to have had as much a possession of the sack as Straughan ; so also Wiley, it seems io me, was as much in the possession of it as Wil- LEADING CEIMINAL CASES. 591 Forgery — Engraving part of a Note — Meaning of words " purporting to be part." liamson. It is true that Wiley did not touch the sack, but he carried the candle to light the man who carried it. If he had assisted Straughan in actually carrying the sack, there would then have been a clear joint possession; but it cannot, I think, matter that Straughan alone carried the sack on his shoulders, and the others assisted him. It seems to me that there was what amounts at common law to a joint possession in all three, while they were carrying the sack to the stable. Though it was denied at the bar, it has been decided that there may be a joint possession by the thief and receiver. We are asked, I take it, to give an opinion upon the whole transaction. It seems to me that when the sack lay on the floor of the stable, it was in the pos- session of Wiley quite as much as of the thieves. It cannot be said, that there is no possession by a receiver unless the thief intends to part with the possession permanently. There was, in my judgment, evidence from which the jury were justified in coming to a conclusion that Wiley was guilty of receiving the stolen property. I therefore think that the conviction was right ; but as the majority of the judges are of a contrary dpinion, the entry must be that the party convicted ought not to have been convicted. Conviction reversed. Regina v. James McKay Keith. 1 April 28, 1855. Forgery — Engraving- part of a Note — Jty earning of words "pur- porting to be part." The prisoner cut out the centre part of a one-pound note of the British Linen Banking Com- pany and took the ornamental border to an engraver, representing that he wanted to have a plate made of this border, intending to fill up the centre with the title of some oil or cos- metic, of which the firm in whose employ he represented himself to be were the vendors. A plate was accordingly made and delivered to him, when he was immediately appre- hended with the plate in his possession, and was tried and convicted upon an indictment framed up"on the 18th section of the 11 Geo. 4, and 1 Will. 4, ch. 66 : — Held, that by the word " note," is not meant merely the obligation or writing, but the whole paper, or thing which circulates as a note ; and therefore the border, or ornamental mar- gin, is part of a note within the meaning of the statute. ' Held also that the engraving need not show upon the face of it that it purports to be part of a genuine note, but that a comparison may be made with a genuine note in order to see whether it does or does not purport to be part of that note. The following case was reserved by Coleridge, J. : — The prisoner was tried before me at the last Warwick assizes on an indictment framed upon the 11 Geo. 4, and 1 Will. 4, ch. 66, § 18. 1 6 Cox, C. C. 533 ; 29 Eng. Law and Eq. Rep. 558. 592 LEADING CEIMINAL CASES. Forgery — Engraving part of a Note — Meaning of words " purporting to be part." Upon the facts submitted to the jury he was, subject to the following ' question, rightly convicted. I passed sentence on him, but having doubts whether on one point the charge could be sustained, I re- served that question for the opinion of the judges. The prisoner being possessed of a one-pound note of the British Linen Banking Company, had cut out the centre part, on which the whole of the promissory note was written, and taken the ornamental border to Kynaston, a printer at Birmingham, representing that he wanted to have a plate made of this border, intending to fill up the centre with the title of some oil or cosmetic, of which the firm in whose employ he represented himself to be were the vendors. Ky- naston was not an engraver, and toldjiim that he (Kynaston) must employ another hand to execute the Royal Arms of Scotland and the Britannia, which formed part of this border, to which the prisoner assented. Accordingly, an engraver of the name of Umfreville was applied to, who perceived at once the prisoner's real purpose, and having caused through the police a communication to be made to the banking company, undertook the work with their authority and made a plate, an impression from which I annex to this case, which was delivered to the prisoner, and he was apprehended with it in his possession. The words of the section are as follows : " If any person shall en- grave, or in anywise make upon any plate whatever, any bill of exchange or promissory note for the payment of money, or any part of any bill of exchange or promissory note for the payment of money, purporting to be the bill or note or part of the bill or note of any per- son or persons, body corporate, or company carrying on the business of bankers (other than and except the Bank of England), without the authority of such person or persons, or body corporate or com- pany," &c. I doubted whether a plate having on it merely the'Royal Arms of Scotland and the Britannia, although placed as they are found in a complete promissory note of the banking company, satisfied these words, and request the opinion of the judges thereon. 'No counsel appeared for the prisoner. Bittleston for the prosecution. This conviction is right. The only doubt entertained by the learned judge at the trial was whether the averment that the part of the note which the prisoner had engraved purported to be part of a note of the British Linen Company was proved; and it is submitted that the evidence. on that subject was sufficient to support the finding of the jury. In order to constitute an offence under the section in question, it is not necessary that the part engraved by the prisoner should be so much of the note as will ft LEADING CKIMINAL CASES. 593 Forgery . — Engraving part of a Note — Meaning of words " purporting to be part." show upon the face of it that it is part of the note of the particular banking company. If that were so, nearly the whole of the note must be engraved before the offence would be complete. It is enough if it is a part so engraved as to be capable of completion, and such that if completed, the whole would purport to be a note of the com- pany to any person acquainted with their notes, or having the oppor- tunity of comparison. The matter was very much discussed in Re- gina v. Faderman, 4 Cox, C. C. 359. There the indictment was framed upon section 19 of the same statute, 1 Will. 4, ch. 66, and it charged the engraving of " several parts of an undertaking for pay- ment of money purporting respectively to be parts of one of the for- eign undertakings for payment of money " of the Empire of Russia ; and fac similes of these several parts were engraved upon the indict-' ment; one of them consisted of a scroll and wreath, with words within the border ; and. the indictment was demurred to for 4his (amongst other reasons), that the undertaking itself, of which the matters engraved were alleged to be part, was not set out, nor any translation of it, so that the court might be enabled to see on the face of the record whether the parts set out did purport to be parts of the genuine instrument. That demurrer was argued before Alder- son, B., Cresswell, J., and Williams, J., and they overruled the de- murrer. In delivering judgment, Alderson, B., said : '' It will be in the first place desirable to ascertain what is the meaning of the words ' purporting to be a bill or part of a bill ? ' and it appears to us that we must construe it in this way: If it be a complete bill or note, then it must appear on the face of it to be what it is alleged it purports to be; but that word, when it is used with reference to part of a bill or note, cannot be construed in the same manner, for part of a bill cannot purport to be any thing ; when applied to a part, it must mean that it is part of a bill or note, which, if complete, would pur- port to be what is described in the act. This is the only reasonable construction that can be put upon the statute. When a prisoner is charged with forging part of an instrument, we must be satisfied not from merely looking at the indictment, but by proper averments and by extrinsic proof, that the instrument, when complete, would be what it is stated to be." And in the course of the argument Alderson, • B., put this very case : " How under any circumstances could we tell without extrinsic evidence, whether it is part of a foreign note or not ? The case of Regina v. Goldstein, Russ. & Ry. 473, and the other cases cited, were those in which complete instruments were forged. Take the case of the forgery of the figure of Britannia on an engraved plate, how could it be made to appear on the face of the indictment without evidence that it was part of a genuine note ? It must be proved by witnesses, and the jury must find it." 50* 594 LEADING CRIMINAL CASES. Forgery — Engraving part of a Note — Meaning of words " purporting to be part." In the present case the manager of the bank produced a genuine note, and the jury compared that with the engraving, and found that it purported to be part. The prisoners defence was that he had copied the designs from the note, but for an innocent purpose ; which was, however, negatived by the jury. Crompton, J. Can'the figure of Britannia be said to be part of the note ? Bittleston. It is part of the indicia of the note ; one of the marks by which the note is known and obtains currency. If these could be engraved with impunity, one of the greatest difficulties in the way of making forged notes would be removed. ?ollock, C. B. We are all 0/ opinion that this conviction is quite right. (His lordship read the words of the section.) Now, picking out the words applicable to this case, they run thus — that, if any person shall engrave, or in anywise make upon any plate whatever any part of any bill o'f exchange or promissory note for the payment of money purporting to be part of the bill or note of any company carrying on the business of bankers, &c, he shall be guilty of the offence. Now the prisoner in this case had procured to be engraved upon a plate only the arms of Scotland, which appear at the head of a genuine promissory note of the British Linen Banking Company, and the figure of Britannia, which is in the margin on the left hand side of the company's genuine note ; and the question is, whether he is guilty of the offence described in this statute. I am of opinion that he is. It has been suggested that these pictures do not form any part of the note ; and if the word' " note " is to be taken as applying only to that which gives the legal obligation to the m- strument, they certainly are not part of the note, because they are not part of the formal words expressing the obligation. But I think the statute uses the word " note " in its .popular sense, meaning the thing as it is in fact; and> as I threw out in the course of the argu- ment, it seems to me that if it were made an offence to deface or tear a promissory note of a banking company, that offence would be com- mitted by tearing or defacing any part of the piece of paper on which the note is printed — I should say even the blank part — not even containing any of the ornaments or indicia whereby the note is ordi- narily known. Then the next question is, does it purport to be part? If the engraving had been put upon an invoice or the back of a card, and- so engraved that it could never be used as part of a note, it would not purport to be so ; but, if that is not the case, then it must LEADING CRIMINAL CASES. 595 Forgery — Engraving part of a Note — Meaning of words " purporting to be part." be ascertained by comparison with the genuine note ; and upon, the comparison it would be a question for the jury, whether it did pur- port to be part ; and in this case the jury must be considered to have found that, and I think they have rightly so found. In another part of the same section, there is a provision against any imitation of the subscription to the note ; the words are " resembling, or apparently intended to resemble," as to which it is clear that the apparent or intended resemblance can only be ascertained by comparison ; and if it may be done for the one purpose, there is no reason why it should not be done for the other. Does this engraving then purport to be part of a note of the British Linen Company ? Giving tp the term " note " its proper signification, I think clearly it does. Having reference to the position in which the arms of Scotland and the Bri- tannia are engraved upon the plate, no person looking at that plate and comparing it with a genuine note, could entertain any doubt that the engraving purported to be part of the genuine note. Parke, B. I am of the same opinion. The object of the statute is to prevent the engraving upon plates of bank-notes or parts of bank-notes, which may be used for the purpose of forgery ; and hav- ing reference to this object, it appears to me that every thing must be deemed to be part of a note, which helps to give it eurrency'as a note of the particular banking company, and not the mere words of obligation, which show what the nature of the instrument is. If we were to hold otherwise, we should certainly give great facilities for forgery. The next question is, whether, to bring a case within the statute, the part engraved must purport upon the face of it to be part of a genuine bank-note; and I think that that could not have been intended ; because, in almost all cases, if you looked only at the part engraved, you would not be able to' discover that it was part of a bank-note. The indictment must certainly describe the part en- graved as purporting to be part of the note of. a particular banking company ; but if it were necessary, in proving that allegation, to show that the part engraved, looked at by, itself and without com- parison with a genuine note, would appear to be part of the note, no case could be brought within the statute, unless very nearly the whole of the genuine note was imitated. A person might engrave very nearly the whole of a note without being, liable to punishment under this statute, and the very object of it would be thereby de- feated. In the latter part of the same clause, there is a provision of a similar kind, in which, however, the word " purporting " is not used; but it is made an offence to engrave any words "resembling or apparently intended to resemble, any subscription " to a promis- sory note ; and the question under that part of the clause would be, 596 LEADING CRIMINAL CASES. Forgery — Engraving part of a Note — Meaning of words " purporting to be part." whether the words engraved were apparently intended to resemble the genuine signature. How could that be ascertained ? Only by com- paring it with the genuine signature; In like manner, when the question is, whether the thing engraved purports to be part of a genuine promise sory note, you must compare it with the genuine note to ascertain whether it does purport to be part or not. And I think the case is within the statute, if upon such comparison t,he forged engraving does appear to be an imitation of any part of the note, whether the obligatory part or riot. To give the forged note currency at all, it must have upon it, not merely the obligatory words, but also the usual orna- ments which appear upon the face of a genuine note ; and if there is such a portion of the note engraved, as when compared with the genuine note, will clearly appear to be an imitation and to purport to be part of it, then I think the offence is made out. If only a sin- gle dot or line had been engraved, that would probably not be suffi- cient to satisfy the jury that even upon a comparison it purported to be part of the note ; but, in the present case, the royal arms of Scot- land and the figure of Britannia, placed in the same position in which they are found in a genuine note, appear without doubt upon comparison to be imitations of the ornaments on a genuine note, and purport to be part of such note. Coleridge, J. After a good deal of doubt, I have now come to a clear opinion that this conviction is right. The question is of a twofold nature — first, what is the meaning of the word " purport ; " secondly, how are we to arrive at the conclusion whether any instru- ment purports to be another. Now, an instrument can only purport to be that which it more or less accurately resembles; and that resemblance must be on the face of the instrument. A person may intend to make an instrument resembling another ; but may execute it so imperfectly as to fail in carrying out his intention. The defi- nition of the term " purporting " is the same, whether it is applied to the whole or to part of an instrument. When produced, the whole instrument or the part of it must bear upon the face of it some resemblance to the thing intended to be imitated, otherwise it cannot purport to be either the whole or the part, as the case may be. Then the next consideration is, how are you to arrive at the fact^-how are you to determine whether one instrument does purport to be an- other ? First, take the case of an entire instrument. If the whole note has been engraved, I am to determine whether that purports to be the whole note of a particular banking company. In order to do that I must in some way have acquired a knowledge of the genuine instrument ; I must either have in my own mind a previous knowl- edge of it, or must compare the forged engraving with a genuine LEADING CRIMINAL CASES. 597 Forgery — Engraving part of a Note — Meaning of words " purporting to be part." note, — that is, I must have recourse to extrinsic evidence. I confess I do not see how it is possible, even with regard to a whole note, to determine whether it purports to be the note of a particular banking company, without comparing the two. And if that be so, why should not the same method be adopted in determining the same question as to a part? Why may I not take the part engraved, and then look at the same part in the genuine instrument for the purpose of determining whether the part engraved purports to be part of the genuine instrument, — whether so much has been- engraved as will enable me to say, upon comparison, that it purports to be part? That was all that was done in this case. The jury, putting together the genuine note and the part engraved upon the plate, were satis- fied that the latter purported to be part of the genuine note. Crompton, J. I also have" had considerable doubt in this case, whether the prisoner could properly be convicted of engraving part of a promissory note purporting to be part of the promissory note of a particular banking company. I doubted both whether a orna- ment at the side could be considered part of the note, and also whether it purported to be part. But, upon consideration, what weighs upon my mind is this — that unless we give to the word " purporting" a more extended meaning than it generally bears, this statute will be ineffectual in many respects, as has been already pointed out ; and upon the whole, therefore, I think that the statute must be supposed to mean that the part engraved must purport to be part of the genuine instrument to a person who is acquainted with the appearance of a genuine note, or to a person comparing the two. As to the other point also, I am not satisfied that this may not be said to be part of the note. I suppose the word " note," in this section, must mean that which is the bank-note in the popular sense, including every thing which appears upon the piece of paper on which the promissory note of the banking company is written ; and that it is not confined to those parts which constitute in the ordinary legal sense the promissory note of the company. Crowder, J. I entertain no doubt at all that this conviction is correct. This case is clearly within the mischief against which the statute was directed ; and I think that it comes also within the pre- cise words of the section. The argument has chiefly turned upon the effect of the word '.'purporting;" and, as to that, it is clear to- me that, before we can ascertain whether an instrument purports to be an instrument of any particular kind, we must resort to extrinsic evidence ; and whether the engraving is of the whole or only of part of the instrument, there must be evidence of the genuine instrument 598 LEADING CRIMINAL CASES. Indictment — Pleading — Allegation in the Disjunctive. • submitted to the eyes of the jury to enable them to determine that question. . The object of the* statute certainly was to defeat any of the various contrivances and devices whereby the forgery of bank- notes may be accomplished ; and when the enactment refers to part of a note, it means, in my opinion, a part of that which circulates as a note. The plate engraved by the prisoner, when compared with a genuine note of the British Linen Company, appears to have upon it part of that which circulates as such a note, and therefore it pur- ports to be part. Conviction affirmed. Commonwealth v. Robert Grey & wife. 1 1854. Indictment — Pleading - — Allegation in the Disjunctive. A complaint or indictment averring an unlawful sale of " spirituous or intoxicating liquor," is bad for uncertainty, even after a plea of nolo contendere. 4 A complaint, made to a justice of the peace, alleged that the defendants, on the 18th of June, 1854, at Canton, " without any au- thority or license therefor duly had and obtained according to law, did sell spirituous or intoxicating liquor to one Patrick G. White," &c. The defendants, being found guilty by the justice, appealed to the Court of Common Pleas, and there pleaded that they would not contend with the Commonwealth, and this plea was received by the court. They then moved in arrest of judgment, " because said complaint does not charge the violation of any statute of this Com- monwealth, substantially in accordance with the requirements of law." Mellen, C. J., being of opinion that the question of law arising upon this motion was so doubtful as to require the decision of this court, reported the case, with the consent of the defendants. . E. Wilkinson, (District Attorney,) for the Commonwealth. B. Sanford, for the defendants. Metcalf, J. It is a general rule, that an indictment, information, or complaint, must not charge a party disjunctively, so as to leave it uncertain what is relied on as the accusation against him. 2 Hawk, c. 25, § 58. 1 Chit. Crim. Law, 231. 1 Stark. Crim. PL (2d ed.) 245. 1 2 Gray, 501. LEADING CRIMINAL CASES. 599 Indictment — Pleading — Allegation in the Disjunctive. Thus an indictment, which averred that S. made a forcible entry into two closes of meadow or pasture, was held to be bad. Spear's case, 2 Rol. Ab. 81. So of an information which alleged that N. sold beer or ale without an excise license. 'The King v.' North, 6 Dowl. & Ryl. 143. See also Rex v. jfroriey, 1 Y. & Jerv. 221 ; Ex parte Pain, 5 B. & C. 251; Rex v. Sadler, 2 Chit. R. 519 ; Davy v. Baker, 4 Bur. 2471. When the word " or " in a statute is used in the sense of " to wit,'' that is, in explanation of what precedes, and making it signify the same thing, a complaint or indictment, which adopts the words of the statute, js well framed. Thus it was held, in Brown v. Common- wealth, 8 Mass. 59, that an indictment was sufficient, which alleged that the defendant had in his custody and possession ten counterfeit bank bills or promissory notes, payable to the bearer thereof, and purporting to be signed in behalf of the president and directors of the Union Bank, knowing thenv to be counterfeit, and with intent to utter and pass them, and thereby to injure .and defraud the said pres- ident and directors ; it being manifest from St. 1804, c. 120; § 2, on which the indictment was framed; that " promissory note " was used merely as explanatory of " bank bill," and meant the same thing. So in The Slate v. Gilbert, 13 Verm. 647, an information was held suffi- cient, which alleged that the defendant feloniously stole, took and carried away a mare "of a bay or brown color;" the court saying that the colors named in the information were the same. And if spirituous liquor and intoxicating liquor were the same, and the word "intoxicating" had been. used in St. 1852, c. 322, as a mere explana- tion of the word " spirituous," the complaint in the present case would have been rightly drawn. But the two words are not synony- mous. All spirituous liquor is intoxicating ; yet all intoxicating liquor is not spirituous. In common parlance, spirituous liquor means distilled liquor ; and such, we believe, is its meaning in the statute. Fermented liquor, though intoxicating, is not spirituous. A complaint or indictment on the statute should charge the defend- ant, either with selling spirituous liquor, or with selling intoxicating liquor, or with selling spirituous liquor and intoxicating liquor. The latter form is usually adopted; and it is well settled that it is a proper form, and that proof of the defendant's having sold either spirituous liquor or intoxicating liquor, as well as proof of his having sold both, will support the indictment. 1 East, P. C. 402. Angel v. Commonwealth, 2 Virg. Cas. 231. The Stale v. Price, 6 Halst. 203. As the complaint against these defendants leaves it uncertain whether they are charged with having sold spirituous liquor, or intox- icating liquor which is not spirituous, we must hold it, upon the au- thorities above cited, to be insufficient to sustain a judgment. Judgment arrested. 600 .LEADING CRIMINAL CASES. Indictment — Commencement — " The Jurors for,'' etc. Broomisv. Regina. 1 I « June 18, 1848. . Indictment — Commencement — " The Jurors for," etc. 1 i ' ' By the caption of an indictment, it appeared that " upon the oaths of twelve 'jurors, good," &c, " then and there sworn and charged to inquire for our said Lady the Queen," &c, "it was presented in manner and form following : that is to say." Then followed the indictment, thus : " Middlesex. The jurors of our Lady the Queen upon their oat]| present," &c. Held, upon error to the Exchequer Chamber, that, by taking the caption with the indict- ment, it sufficiently appeared that the -presentment was by jurors for the Queen. Error from the Court of Queen's Bench on the record of a con- viction of the plaintiff upon an indictment for a common assault. The record set out the proceedings, and the caption of the indictment was in the usual form, stating the jurors to be jurors '■'•for our Lady the Queen ; " but the commencement of the indictment was as fol- lows : " The jurors of our Lady the Queen, upon their oath, present, etc." The error assigned was, that the jurors were improperly styled " jurers of our Lady the Queen." Carrington, for the plaintiff in error. First, the law knows of no such office as "jurors of our Lady the Queen." Regina v. Turner, 2 Moo. and Rob. 214, may be cited on the other side. There Parke, B., overruled the objection, on motion in arrest of judgment, saying that " the jurors " meant the jurors mentioned in the caption. He seems, however, to have considered the case open for a writ of error. And the caption cannot be incorporated : the jurors mentioned in the indictment are not identified with those mentioned in the caption. In 2 Hale's PI. C. 167, Part II., ch. 23, it is said that it must appear that the presentment is by persons onerati et jurati ad inquirendum pro domino rege,&cc. With this agrees 4 Hawk. PL Cr. 76, (ed. 7), B. ii., c. 25, s. 126. Corner, contra, was stopped by the court. Parke, B. The first objection is cured by the caption ; or, rather, when the caption is read with the indictment, there is no objection. Coltman and Cresswell, Js., and Alderson, Rolfe, and Platt, Bs., concurred. Judgment affirmed. . . . _» i 12 Queen's Bench Rep. 834; 3 Cox, C. C. 49. In the Exchequer Chamber. Error from the Queen's Bench. INDEX. ABATEMENT. Respondeat Ouster.] A defendant in an indictntent for a misdemeanor cannot plead over to the charge after a plea in abatement for a misnomer, on which issue is taken and found against him. Rex v. Gibson, 322. ACCOMPLICE. 1. Conviction on Uncorroborated Testimony of.] It is not a rule of law, but of practice only, that a jury should not convict on the unsupported testimony of an accomplice. There- fore, if a jury choose to act on such evidence only, the conviction cannot be quashed as bad in law. Regina v. Stubbs, 545. 2. The better practice is for the Judge to advise the jury to acquit, unless the testimony of the accomplice be corroborated, not only as .to the circumstances of the offence, but also as to the participation of the accused in the transaction ; and when several parties are charged, that it is not sufficient that the accomplice should be confirmed, as to one or more of the prisoners, to justify a conviction of those prisoners with respect to whom there is no confirmation. lb. ACTION. Right ofmerged in a felony.] See Merger. AD COMMUNE NOCUMENTUM. When necessary in the conclusion of an Indictment.] See Indecent Exposure. ADULTERER. Delivery of Money, etc., by Wife to Adulterer .] See Larceny. ADULTERY. 1. Indictment] An indictment which alleges that P. M., on a certain day, and at a certain place, "did commit the crime of adultery with one M. S., by then and there having car- nal knowledge of the body of said S., she the said S. then and there being a married wo- man, and having a husband aliVe," is not sufficient to support a conviction. These alle- gations do not show, with certainty, that M. S. was not the wife of P. M. Moore v. The Commonwealth, 519. 2. It is not necessary, in an indictment against an unmarried man for adultery with a mar- ried woman, under the Rev. Sts. of Massachusetts, ch. 130, § 1, to aver that he knew, at the time when the offence was committed, that she was a married woman. Nor is it neces- sary to prove such knowledge on the trial. Commonwealth v. Elwell, 549. 3. Parties.] Parties to the crime of adultery may be jointly indicted, lb. 51 602 INDEX. ANIMALS. In what cases Larceny may be committed of them:] See Larcett t. APPEAL. Does not lie for the Prosecution.] See p. 425. ARREST. 1. Without a Warrant.] A private person is not justified in arresting, or giving in charge of a policeman, without, a warrant, a party who has been engaged in an affray, unless the affray is still continuing, or there is reasonable ground for apprehending that he intends to renew it. Price v. Seeley, 143. 2. A plea, justifying an arrest for an affray without warrant, ought to contain a direct aver- ment that there was an affray or a breach of the peace continuing at the time of the arrest, or a well-founded apprehension of its renewal. ' lb. 3. A plea o'f justification to an action of trespass for assault and false imprisonment, — after stating that defendants were in lawful possession of a yard, and were there erecting a wall by their servants ; that plaintiff entered the yard, and upon the wall, and made a great noise, disturbance, and affray, ill-treated defendants, threw down their servants so em- ployed, and obstructed the erection of th'e wall, in breach of the peace ; then averring a requisition by defendants to' plaintiff to depart, and his refusal and continuance; where- upon defendants and their servants gently removed him, and he violently resisted, and assaulted one of defendants in so doing, — proceeded thus : That plaintiff then and imme- diately afterwards, arfd just before the said time when, &c, again broke and entered the yard and got upon the wall, and again made a great noise, disturbance, and affray therein, and threatened to assault, insulted, and ill-treated and showed fight to defendants; and then again forcibly obstructed the further erection of the said wall, and threw down part thereof, &c.,'in breach of the peace; whereupon defendants, having- view of the offences and misconduct of plaintiff last aforesaid, in order to prevent such breach of the peace, &c, then and there gave charge of the plaintiff to a police constable, who then saw the miscon- duct of plaintiff, to take him before a justice, and the policeman took him before a jus- tice. Held, that these were sufficiently positive averments of a continuing breach of the peace from the commencement until the plaintiff was given in charge, or amounted to a necessary implication of a well-founded apprehension that it would be renewed. lb. 4. Void Warrant.] A void process affords no protection to the officer serving or attempting to serve the same. Process may be void as to the parties, but voidable only as to the officer. The State v. Weed, 164. . 5. Where a process or warrant is regular and legal in its frame, bearing upon its face all the legal requisites to make it perfect, both in form and substance ; and it appears to have been issued by a court or magistrate having jurisdiction of the subject-matter, and of the person of the respondent, the officer will be protected in its service, notwithstanding any error or irregularity in the previous issuing of the same, or any imposition practised upon the court in obtaining it. 26. 6. In the service of criminal process, an officer is not to be influenced or governed by the purposes, designs, or objects of complainants, but by his precept; and if the process be regular and legal upon its face, and within the jurisdiction of the magistrate to issue, the officer will be protected in its service, although the complainant had illegal designs in causing it to be issued, and although the officer knew that the warrant had been procured by the complainant to accomplish improper and illegal.objects. lb. 7. An officer will be protected in the service of process, regular and legal upon its face, and within the jurisdiction of the magistrate to issue, although the foundation of the complaint on which the warrant issued be false and groundless. He is not to look beyond his pre- cept, lb. 8. A person resisting an officer in the service of such process, is liable to indictment. lb. 9. For a Felony.] Where a felony has actually been committted, a constable, or even a pri- INDEX. 603 AEREST, continued. vatc person, acting bond file, and in pursuit of the offender upon such information as amounts to a reasonable and probable ground of suspicion, may justify an arrest. Samuel v. Payne, 157. 10. By Officer.] A peace officer may justify an arrest on a reasonable charge of felony, with- out a warrant, although it should afterwards appear that no felony had been committed ; but a private individual cannot. Ledwith v. Catckpole, 158. ASSAULT. See Indecent Assault. A TRUE BILL. An indictment need not be certified by the foreman of the grand jury to be " a true bill,' and the omission of those words is not a cause for an arrest of judgment. The State v. Freeman, 202. BAIL. Character of Persons offered.] In the case of a bailable misdemeanor, bail, if otherwise suffi- cient, ought not to be refused on account of the personal character or opinions of the party proposed. Eegina v. Badger, 236. BASTARDY PROCESS. Whether Civil or Criminal.] See p. 25. BIGAMY. Indictment for.] See p. 522. BILL OF.EXCEPTIONS. See Exceptions. BLASPHEMY. See Regina v. Petcherini, 563. BREACH OP THE PEACE. See Abkest. BURDEN OP PROOF. 1. Never changes.] If the defence to an indictment for an assault and battery be a justifica- tion or excuse arising out of the transaction itself, such as a prior assault, the burden of prov- ing such defence is not shifted upon the defendant by mere proof of the blow, even with a dangerous weapon. Commonwealth v. McKie, 347. 2. In such case if the jury have reasonable doubts whether the blow was given under such circumstances as amount to a justification in law, they ought not to convict, lb. 3. In any criminal charge, if the defendant relies upon no separate, distinct, and independent fact, but confines his defence to the original transaction on which the charge is founded, with its accompanying circumstances, the burden of proof never shifts, but remains upon the government throughout the whole case to prove the act a criminal one. lb. BURGLARY. 1 . Breaking] The pulling down the sash of a window which has no fastening, and is only kept in its place by a pulley weight, is a sufficient breaking to constitute burglary. Rex v. Haines, 524. 604 INDEX. BURGLARY, continued. 2. It is equally a breaking, although there is an outer shutter which is not closed and fas- tened, lb. 3. Lifting the flap of a cellar usually kept down by its own weight, is a sufficient breaking for the purpose of burglary. Rex v. Russell, 525. 4. Breaking out of a Dwelling-House.] The getting the head out through a skylight, is a suffi- cient breaking out of a house to constitute burglary. Rex v. MKearney, 540. CANON LAW. See p. 420. CAPTION. See Indictment. CHEATING. See Crimes. CIVIL INJURIES. What are, or are not.] See Ceimes. 4. CIVIL LAW. See p. 420. CIVIL REMEDY. When merged in a Felony.] See Mergee. COMMENCEMENT OE AN INDICTMENT. See Indictment. CONSPntACY. 1. Indictment.] In an indictment for a conspiracy to do an act, which is a well-known and recognized offence at common law, the object of the conspiracy may be described by the general terms by which it is familiarly known ; if the alleged purpose be the doing of an act which is not unlawful in itself, but which is to be effected by the use of unlawful means, those means must be particularly set forth ; if it be the doing of an act, which is not an offence at common law, but only by statute, the purpose of the conspiracy must be set forth in such a manner as to show that it is within the terms of the statute. Common- wealth v. Eastman, 264. 2. When a conspiracy is plainly and technically alleged, the acts done in pursuance of it need not to be set out; or, if set out, they need not be proved. lb. 3. It is not a sufficient statement of the offence, in an indictment for a conspiracy to cheat, to allege that the defendants conspired together to cheat and defraud P. S. S. of his goods ; ' or to acquire and get into their possession the goods of P. S. S., under color and pretence of buying the same ; or to get possession of the goods of P. S. S., upon trust and credit, and then to remove and transport them out of the Commonwealth, lb. 4. The words " cheat and defraud" do not necessarily import any offence, either by statute, or at common law ; and, therefore, an indictment for a conspiracy, in which the object 1s alleged to be to " cheat and defraud," must set forth in detail such further allegations as will show the object to be an offence, either bv statute or at common law. lb. INDEX. 605 CONSPIRACY, continued. 5. Defilement of Women.] Where a music-master, in consideration of a sum of. money, as- signed his female apprentice to a gentleman, under pretence of her receiving lessons from him in music, but really for the purposes of prostitution, the court, upon application, granted a criminal information against the gentleman, the music-master, and the attorney who drew the assignment, for a conspiracy. Hex v. Delaval, 457. . 6. An indictment charged that A. B. and C. D. did between themselves conspire, combine, confederate, and agree together, wickedly, knowingly, and designedly, to procure, by false pretences, false representations, and other fraudulent means, one J. C., then being a poor child, under the age of twenty-one years, to wit, &c, to have illicit carnal connection with a man, to wit, a man whose name is to the jurors unknown, contra formam statuti. Seld good, as disclosing an indictable offence at common law, and supported by the evidence stated in the case. Regina v. Mears, 462. CONTRACT. Breach of — not Indictable.] See p. 10. CONVICTION. Proof of the Day of] Although the entire period over which the assizes extend in one place is, by the contemplation of law, and for some purposes, one legal day, the particular day on which a prisoner's conviction took place may, when necessary, be shown ; and the rec- ord does not operate as an estoppel so as to shut out evidence of the actual day on which the prisoner was convicted. Whitaker v. Wisbey, 205. CORPORATIONS. 1. Nonfeasance.] A corporation aggregate maybe indicted for a misfeasance as well as a nonfeasance. Eegina v. Great North of England Railway Co. 134. 2. An incorporated railway company may be indicted for cutting through and obstructing a. highway by works performed in a course not conformable to the powers conferred on the company by act of parliament. . lb. 3. Liable to an Indictment.] ,A corporation aggregate may be indicted by their corporate name for disobedience to an order of justices requiring such corporation to execute works pursuant to a statute. And, if such indictment be preferred at assizes or sessions, where parties cannot appear by attorney, the proper course is to remove it into this court by certiorari, and compel appearance by distress infinite. Regina v. Birmingham and Glou- cester Railway Co. ] 27. 4. On motion to quash such indictment, as not maintainable against- a corporation, the court refused to quash, but directed them to demur, reserving leave to them, if judgment should be given against them on the demurrer, to plead over. lb. COUNTERFEIT BILLS AND COIN. See Evidence. CRIMES. Distinction between— and Private Injuries.] An offence to be indictable, must be one that tends to injure the public. Defrauding one person only, without the use of false weights, measures, or tokens, and without any conspiracy, is, at common law, only a civil injury, and not indictable. Rex y.Wheatly, 1. - CRIMINAL NEGLIGENCE. • See Negligence. 51* 606 INDEX. DEAF AND DUMB PERSON. A Competent Witness.] See p. 424. DELUSION. See Insanity. DEMURRER. Respondeat Ouster.] A prisoner indicted for felony under the stat. 12 Vict. ch. 12, may, after demurring to the indictment, if his demurrer be overruled, plead over to the felony. Re- gina v. Duffy, 326. See Abatement. * DRUNKENNESS. Where a person is insane at the time he commits a murder, he is not punishable as a mur- derer, although such insanity be remotely occasioned by undue indulgence in spirituous liquors. But it is otherwise, if he be at the time intoxicated, and his insanity be directly caused by the immediate influence of such liquors. United States v. Drew, 113. ERROR. See Whit of Eekob. ESTOPPEL. By Record.] Although the entire period over which the assizes extend in one place is, by the contemplation of law, and for some purposes, one legal day, the particular day on which a prisoner's conviction took place may, when necessary, be shown ; and the record does not operate as an estoppel so as to shut out evidence of the actual day on which the prisoner was convicted. Whitalcer v. Wisbey, 205. EVIDENCE. 1. Of Guilty Possession.] To prove the guilty knowledge of an utterer of a forged bank- note, evidence may be given of his having previously uttered other forged notes, knowing them to be forged. Rex v. Whiley, 185. 2. Variance by Proof of two Persons of the same Name.] Upon an indictment for an assault upon E. E., it is sufficient to prove that an assault was committed upon a person bearing that name, although it appear that two persons bore the same name, E. E. the elder, and E. E. the younger. Rex v. Peace, 226. See Insanity. Regina v. Petcherini, 563. EXCEPTION IN A STATUTE. When to be stated in Pleading.] See Indictment. EXCEPTIONS. Bill of, whether it lies in Criminal Cases.] See p. 436. EAC SIMILE. See Indictment. FELONY. Merger of a Civil Remedy in.] See M™~™, INDEX. 607 FEME COVERT. Liability of] See Makribd Women. FERiE NATUEiE. Animals that are, not the subject of Larceny.] See Laeceny. FIGURES. When allowable in an Indictment] See Indictment. FOREMAN OF THE GEAND JURY. Whether or not Indictments should be signed by.] See p. 204. FORGERY. 1 . Engraving part of a Note — Meaning of words " Purporting to be part."] The prisoner cut out the centre part of a one-pound note of the British Linen Banking Company, and took the ornamental border to an engraver, representing that he wanted to have a plate made of this border, intending to fill up the centre with the title of some oil or cosmetic, of which the firm in whose employ he represented himself to he were the vendors. A plate was accordingly made and delivered to him, when he was immediately apprehended with the plate in his possession, and was tried and convicted upon an indictment framed upon the 18th section of the 11 Geo. 4, and fWill. 4, ch. 66 : — Held, that by the word "note," 'is not meant merely the obligation or writing, but the whole paper or thing which circu- lates as a note ; and therefore the border, or ornamental margin, is part of a note within the meaning of the statute. Held, also, that the engraving need not show upon the face of it that it purports to be part of a genuine note, but that a comparison may be made with a genuine note in order to see whether it does or does not purport to be part of that note. Regina v. Keith, 591. 2. Uttering Forged Receipt.] The showing of a forged receipt to a person with whom the defendant is claiming credit on account of that receipt, is an uttering within stat. 1 1 Geo. 4, and 1 Will. 4, ch. 66, § 10, although the defendant never voluntarily parts with the possession of it. Regina v. Radford, 397. 3. Where the prisoner placed a forged receipt, for poor-rates, in the hands of the prosecutor, for the purpose of inspection only, in order, by representing himself as a person who had paid his rates, fraudulently to induce the prosecutor to advance money to a third person : — Held, that this was an uttering within 1 Will. 4, ch. 66, $ 10. Regina v. Ion, 400. 4. Filling a Blank.] If a person having the blank acceptance of another, be authorized to write on it a bill of exchange for a certain limited amount, and he write on it a bill of exchange for a larger amount, with intent to' defraud either the acceptor, or any other per- son, this is forgery. Rex v. Hart, 468. See Indictment. FRAUD. What is Indictable.] See Crimes. FRAUDULENT* CONVEYANCE. 1. For any offence within stat. 13 Eliz. ch. 5, § 3, the offender may be proceeded against by indictment. Regina v. Smith, 191. 2. In such an indictment it is not necessary to set out the specific facts which constitute the fraud. lb. GOODS AND CHATTELS. An Incorrect Description of Money.] See Laeceny. 608 INDEX. GUILTY KNOWLEDGE. " Horn proved.'] See Evidence. GUILTY POSSESSION. Evidence of] See Evidence, HUSBAND AND "WIFE. See Maekied Women. Witness. IMPULSE. See Insanity. INDECENT ASSAULT. If a master takes indecent liberties with a female scholar, without her consent, though she does not resist, he is liable to be punished as for an assault. Bex v. Nichol, 513. INDECENT EXPOSURE. 1. An indictment charging the defendant with having indecently exposed himself in a cer- tain public and open place, in the presence oj: one person only, cannot be sustained, whether that person be a female or not. Regina v. Watson, 445, note. 2. The prisoner was indicted for an indecent exposure in an omnibus, several passengers being therein. The indictment contained two counts; one laid the offence as having been committed in an omnibus, and the other in a public highway. Neither of the counts concluded ad commune nocumentum. Regina v. Holmes, 452. Held, that an omnibus was sufficiently a public place to sustain this indictment. 26. Held, also', that the 14 & 15 Vict. ch. 100, § 24, was an answer to the objection that the counts should have concluded ad commune nocumentum. lb. 3. An indictment charged two defendants with indecent exposure of their persons in an open and public place : — Held, that an urinal, with boxes or divisions for the convenience of the public, and situated in an open market, was not a public place, within that allegation. Regina v. Orchard, 453, note. 4. An indecent exposure in a place of public resort, if actually seen only by one person, no other person being in a position to see it, is not a common nuisance. Regina v. Webb, 442. 5. The averment in an indictment, "in the sight and view of B.," does not mean that B. actually saw it, but only that he might have seen it had he chanced to look. lb'. 6. Quaere, whether an averment in an indictment " that A., unlawfully, &c, did expose and exhibit, &c, in the presence of B. and divers others, &c, then and there being, &c," is sufficient in arrest of judgment ? 26. INDICTABLE OEPENCES. What are, or are not.] See Chimes. INDICTMENT. 1. Commencement of.] By the caption of an indictment, it appeared that, " upon the oaths of twelve jurors, good," &c, "then and there sworn and charged to inquire for our said Lady the Queen," &c, " it was presented in manner and form following : that is to say." Then followed the indictment, thus : "Middlesex. The jurors of out Lady the Queen upon their oath present," &c. INDEX. 609 INDICTMENT, continued. Held, upon error to the Exchequer Chamber, that, by taking the caption with the indict- ment, it sufficiently appeared that the presentment was by jurors for the Queen. Broome v. Regina, 600. 2. Conclusion of.] The words " ad commune nocumentum," when necessary. See Indecent Exposure. 3. Exception in a Statute.] If there be any exception contained in the same clause of the statute which creates the offence, the indictment must show negatively, that the defendant, or the subject of the indictment, does not come within the exception. If the exception or proviso be in a subsequent clause or statute, or although in the same section, yet if it be not incorporated with the enacting clause, by any words of reference, it is, in that case, matter of defence for the other party, and need not be negatived in the pleading. Com- . monwealth v. Hart, 250. 4. For Murder — Dimensions of Wound.] An indictment for murder, which states wounds as contributing to the death, need not state their length, depth, or breadth. Rexv.Mosley, 58. 5. Figures.] It is error in an indictment to express numbers or dates by Arabic figures or Eoman numerals ; they must be written in words at length, except when the indictment, as in forgery, professes to set forth the exact tenor or a fac simile of any instrument. Berrian v. The State, 500. 6. Averment of knowledge when necessary in an indictment. Commonwealth v. Elwell, 549. 7. Written Instruments.] It is a general rule of pleading in civil as well as in criminal cases, that, where a charge is brought against a defendant, arising out of the publication of a written instrument, the instrument itself must be set out in the writ or indictment. Com- monwealth V. Wright, 296 ; Wright v. Clements, 312. & An indictment for a libel must not only contain, but it must also profess to set out, the very words of which the alleged libel is composed, that is to say, a transcript of the libel- lous publication, or of that part of it, which is the subject of the indictment. lb. 9. Marks of quotation, used in an indictment for a libel, to distinguish the libellous matter, are not sufficient to indicate that the words thus designated are the very words of the alleged libel, lb. 10. The words, " according to the purport and effect, and in substance," in an indictment for a libel, do not import that the very words are set out. 76. 1 1 . The word " tenor," imports an exact copy, and that it is set out in words and figures, lb. 12. An indictment for a libel alleged, that the defendant published, &c, an unlawful and ma- licious libel, according to the purport and effect and in substance, as follows : — The words between libel and as follows, cannot be rejected as surplusage. 26. 13. Need not be certified to be " a true bill." The State v. Freeman, 202. 14. Whether or not should be signed by the foreman of the grand jury. See p. 204. 15. Principal and Agent.] An indictment against the principal need not allege that the act was done by him through the agency of his servant. See p. 249. See Adultery ; Bigamy ; Fraudulent Conveyance ; Larceny ; Indecent Exposure ; Obscene Books, Prints, etc. INFANTS. 1. Criminal Liability of] A child ten years of age may be guilty of murder if he knew he was doing wrong. Rex v. York, 68. 2. The confessions of a child ten years of age are admissible against him, if there be no other objection except infancy, lb. 610 INDEX. INSANITY. 1. Capacity.] A party indicted is not entitled to an acquittal on the ground of insanity, if, at the time of the alleged offence, he had capacity and reason sufficient to enable him to distinguish between right and wrong, and understood the nature, character, and conse- quences of his act, and had mental powers sufficient to apply that knowledge to his own case. Commonwealth v. Sogers,. 87. 2. Delusion.] "Where the delusion of a party is such, that he has a real and firm belief, of , the existence of a fact which is wholly imaginary, and under that insane belief he does an act which would be justifiable if such fact existed, he is not responsible for such act. lb. 3. Nor is a party responsible for an act done under an uncontrollable impulse, which is the result of mental disease. 76. 4. Evidence.] Where professional men, who have long been conversant with insanity in its various forms, and have had the superintendence of insane persons, attend the trial of a party who is indicted for a crime, and whose defence is insanity, and hear the testimony in the case, their opinions, on the question whether the party was insane, are competent evidence, though they never personally examined the party, -lb. 5. Proof of.] A jury is authorized to find that a party, who is indicted, was insane at the time of the alleged offence, if the preponderance of the evidence is in favor of his in- sanity, lb. See Drunkenness. INTOXICATED PERSON. Not a competent Witness.] See p. 424. KNOWLEDGE. 1 . When an Indictment must contain an Allegation of] See p. 549. 2. What is a sufficient Averment of] lb. See Guilty Knowledge. LARCENY. 1. Indictment] An indictment charged a prisoner with stealing several pieces of the' current coin of the realm, and named all those coins in general circulation. The jury fourid him guilty of stealing some of the coins mentioned in the indictment, but they could not say which. Held, that a conviction could not be sustained. Per Wilde, C. J., Aldeeson, B., Wight- man, J., and Cbesswell, J. ; Ekle, J., dissentiente. Regina v. Bond, 553. 2. Of written instruments, how described in an indictment. See p. 322. 3. Allegation of Property^] An indictment charged a larceny of "two pieces of the current silver coin of the realm called shillings, of the goods and chattels of A. B." Held, that though "goods and chattels" was an incorrect description of money, those words might be rejected as surplusage, and that then there was a sufficient allegation that the money belonged to A. B. Regina v. Radley, 574. 4. Delivery of Money by Wife to Adulterer.] Upon an indictment for larceny of money, it was proved that the prosecutor's wife delivered the money to the prisoner, with whom she eloped ; and that, when he received it, the prisoner knew that she had taken it without the authority of her husband. Held, sufficient evidence to sustain a conviction. Regina v. Featherstone, 199. 5. Bringing Stolen Property into the State.] A person who steals goods in another State, and brings them with him into this State, cannot be indicted here for the felony. He is to be , treated as a fugitive from justice. Simmons v. The Commonwealth,. 212. 6. The possession of goods stolen by the thief is a larceny in every county into which he carries the goods. But this rule is limited to simple larceny. See p. 224. • INDEX. 611 LARCENY, continued'. 7. Animals, in what cases Larceny may he committed of them.] Doves are animals firai natural, and cannot be the subject of larceny, unless when they are in the custody of the owner ; as, for example, in a dove-house. Commonwealth v. Chace, 66. 8. The prisoner was indicted for stealing four tame pigeons, the property of J. M. : Held, that he was properly convicted of larceny; tame, i. e. reclaimed pigeons, although uncon- fined, with free access at their pleasure to the open air, being as much the subjects of lar- ceny as domestic fowl, which are allowed to go at large. Eegina v. Cheafor, 64 ; Rex v. Howell, 65, note. 9. Recent Possession.] Possession by the accused, in a prosecution for larceny, of the articles stolen, soon after the larceny was committed, raises a reasonable presumption of guilt. The State v. Merrick, 360. 10. If a reasonable doubt is thrown upon aprim&facie case of guilt, the party accused is not proved guilty, beyond a reasonable doubt. 26. 11. The accused, even when the stolen goods are found in his possession, and under his control, within, a short time after the larceny is committed, and a presumption of guilt is raised, is not bound to show to the reasonable satisfaction of the jury, that he became pos- sessed of them, otherwise than by stealing ; the evidence may fall far short of establishing that, and yet create on the minds of the jury a reasonable doubt of his guilt, lb. 12. Where property of insignificant value is traced to the possession of the prisoner fifteen months after the loss, and the prisoner gives an account of his possession of it, which is not inconsistent with the right of the prosecutor to it, he ought not to be called qn to ac- count for that possession in a court of justice. Regina v. Evans, 363. 13. Where, however, the prisoner, when lost property is found in his possession, and iden- tified by the prosecutor after so long an interval, claims }t as his own property by right of purchase made before the alleged theft, and a continuous possession up to the time of dis- covery, he may be called on to account *for that possession, notwithstanding the interval which has elapsed between the loss and discovery, for then he disputes the identity of the thing found with that lost. 74. 14. Lucri Causa.] To make a taking felonious, it is not necessary that it should be done lucri causa; taking with an intent to destroy will be sufficient to constitute this offence, if done to serve the prisoner or another person, though not in a pecuniary way. iter v. Cabbage, 436. 1 5. A servant clandestinely taking his master's corn, though to give to his master's horses, is guilty of larceny. Rex v. Morfit, 438. LEWDNESS. Open and Gross, Indictable.] See p. 457. LIBEL. See Indictment. LIVING AUTHORS How far they may be cited as Authority.] See p. 408. LUCRI CAIJSA. See Larceny. LUNATIC. When admissible as a Witness.] See Witness. 612 INDEX. • MALICIOUS INJURIES. When Indictable.] See p. 22. MANSLAUGHTER. See Negligence. MARRIED WOMEN. 1. Criminal Liability of] A feme covert is not indictable for an assault and battery com- mitted in the presence, and under the command of her husband. Commonwealth v. Neal, 76. 2. Joint Indictment with Husband.] If a husband and wife be jointly indicted for an assault and battery, one may be convicted and the other acquitted. 26. 3. Witness.] Wife of one defendant when a competent witness for a co-defendant. Com- monwealth v. Marsh, 126. MEDICAL TESTIMONY. See Insanity. MERGER. Of a Civil Remedy in a Felony.] The merger of a trespass in the felony (when the trespass is a felony,) is a doctrine of the English law, founded not on policy, but on the king's right by forfeiture ; and as forfeiture is not here a consequence of felony, or, at any rate, if it be, is never asserted, the doctrine does not apply in this State. White v. Fort, 27. MISADVENTURE. See Negli&ence. MISFEASANCE. See Corporations. MONOMANIA. See Insanity. MURDER. See Indictment. NEGLIGENCE. 1. When Criminal.] If a person employed on a building situated thirty feet from the high- way, throw down a piece of timber, having first cried out to stand clear, and the timber fall upon another and kill him, this is not manslaughter, but misadventure merely. Aliter, it seems, if the house had been directly upon a constant thoroughfare. Rex v. Eutt, 42. 2. Of both Parties.] Wherever death ensues from injuries inflicted by parties engaged in any illegal act, an indictment for manslaughter will lie, even though it appear that the deceased had materially contributed to his death by his own negligence. Reqina v. Lonq- bottom, 54. * 3. Omission and Commission.] An act of omission, as well as of commission, may be so criminal as to be the subject of an indictment for manslaughter. Regina v. Lowe, 49. 4. Manslaughter.] Where a man, appointed to superintend a steam-engine employed* in a colliery, for the purpose of raising colliers from the pits, left the engine in the charge of an incompetent person, and in consequence of that incompetence, death ensued, Held, that the man so leaving the engine was guilty of manslaughter, lb. INDEX. 613 < NEW TEIAL. Not for the Prosecution.] See p. 425. NONFEASANCE. See Corporations. NUISANCE. What is an Indictable Nuisance.] See p. 9. . OBSCENE BOOKS, PRINTS, ETC. Indictment.] An indictment under the Rev. Sts. of Massachusetts, ch. 130, $ 10, for selling a book containing obscene language, etc., must allege that the defendant knew that the book contained obscene language. See p. 551. Sow set forth in an Indictment] See p. 321 . " OF." The word "of" is a sufficient allegation of the ownership of personal chattels. Regina v. Radley, 574. OMISSION AND COMMISSION. When Criminal.] See Negligence. "OR." When the word "or" in a statute, is used in the sense of "to wit," that is, in explanation of what precedes, and makes it signify the same thing, an indictment, which adopts the words of the statute, is well framed. Commonwealth v. Grey, 599. See Indictment. "PASS." Meaning of, when applied to Bank-Notes.] See p. 414. PERJURY. 1. Corroborative Evidence.] On trial of an indictment for perjury in taking the owners' oath under the Act of March 1, 1823, section 4, (3 Stats, at Large, 730J it is not necessary for the prosecution to produce a living witness to testify to the falsehood of the fact sworn to ; if the jury believe the written evidence, contained in the defendant's letters, and in other documents, recognized by him as genuine, proves he made a false and corrupt oath, he may be convicted. The United States v. Wood, 482. 2. Where perjury was assigned upon a statement made by the prisoner on oath, upon a trial at Nisi Prius, that in June, 1851, he owed no more than one quarters' rent to his land- lord, and the prosecutor swore that the prisoner owed five quarters' rent at that date, and ■ to corroborate the prosecutor's evidence a witness was called, who proved that in August, 1850, the prisoner had admitted to him that he then owed his landlord three or four quar- ters' rent : — Held, first, that this was not such corroboration as is necessary to sustain an indictment for perjury. Secondly, that two witnesses are not essentially necessary to con- tradict the oath on which the perjury is assigned, but that there must be something more than the oath of one, to show that one party is more to be believed than the other. Re- gina v. Boulter, 494. N PLEADING DOUBLE. In criminal cases a defendant cannot plead a special plea in addition to the general issue. Re Straktn, Paul and Bates, 570. S9 6l4 INDEX. PLEADING OP EXCEPTIONS AND PROVISOS IN STATUTES. If there be any exception contained in the same clause of the statute which creates the offence, the indictment must show negatively, that the defendant, or the subject of the indictment, does not come within the exception. If the exception or proviso be in a subsequent clause or statute, or although in the same section, yet if it be not incorporated in the enacting clause by any words of reference, it is, in that case, matter of defence for the other party, and need not be negatived in the pleading. Commonwealth, v. Hart, 250. POLYGAMY. Indictment for.] See p. 522. POSSESSION. See Larceny ; Receiving Stolen Goods. PRACTICE. See Accomplice. PRINCIPAL AND AGENT. Criminal Liability of, for the Acts of his Agent.] The sale of a libel by the servant or agent of a bookseller, in the shop of the principal, is only prima fade evidence of publication by the principal, and may be avoided by showing that it was made contrary to his orders, or under circumstances negativing all privity on his part. Rex v. Almon, 241. See Indictment. PRIVATE INJURIES. See Crimes. PROVISO IN A STATUTE. See Pleading of Exceptions and Provisos in Statutes. PUBLIC PLACE. See Indecent Exposure. PUBLIC WRONGS. What are, or are not.] See Crimes. PURPORT AND EPFECT. The words " according to the purport and effect, and in substance," in an indictment for libel, do not import that the very words are set out. Commonwealth v. Wright, 296. RAPE. 1 . Character of Prosecutrix.] Upon an indictment for a rape, the woman is not compellable to answer whether she has not had connection with other men or with a particular person named ; nor is evidence of her having had such connection admissible. Bex v. Hodgson, 228. 2. Having carnal knowledge of a married woman under circumstances which induce her to suppose it is her husband. Held, by a majority of the Judges, not to amount to a rape. Bex v. Jackson, 234. 3. If a married woman assents to carnal connection with a man, under the belief that he is her husband, the man cannot be convicted for rape. Regina v. Clarke, 232. INDEX. 615 REASONABLE DOUBTS. See Bubden of Pboof. RECEIVING STOLEN GOODS. What amounts to a Receipt — Manual and Constructive Possession.] ' Regina v. Smith, 576; Regina v. Wiley, 582. RECENT POSSESSION. See Larceny. RESPONDEAT OUSTER. See Abatement. REVENUE LAWS. Liability of the Principal under, for the acts of his Servant.] See p. 247. SCHOOLMASTER AND PUPIL. See Indecent Assault. SEAL. See Wabbant. SENTENCE. Where an inferior court renders an erroneous judgment against a defendant, and Be brings a writ of error to reverse it, this court cannot render, a new judgment, nor remit the case to the court below in order that a new judgment may be rendered there, but can only reverse the judgment and discharge the defendant. Rex v. Ellis, 372 ; Rex v. Bourne, 376. SERVANT. See Pbincipal and Agent. SPECIAL PLEA. In criminal cases a defendant cannot plead a special plea in addition to the general issue. Re Strahan, Paul and Bates, 570. SURPLUSAGE. See Labcent. TENOR. The word " tenor " imports an exact copy, and that it is set out in words and figures. Com- monwealth v. Wright, 296. UTTERING. See Fokgekt. VERDICT. I. Wrong Verdict by Mistake.] On the trial of a prisoner for felony, a juryman, by mistake, delivered the verdict " not guilty," when the jury meant " guilty." The prisoner was discharged from the dock, but some of the jury then interposing, he was immediately brought back again, and the jury were again asked what their verdict was. They said ; " guilty ; " the prisoner was, therefore, sentenced, Held, that the original mistake was corrected within a reasonable time, and, therefore, that the conviction was right. Regina v. Vodden, 547. 616 INDEX. WARRANT. Must be under Seal.] Seep. 182. See Atckest. WILD ANIMALS. Whether the subjects of Larceny.] See Lakceny. WITNESS. 1 . Lunatic] A lunatic is admissible as a witness, if he haye sufficient understanding to ap- prehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the question at issue. Eegina v. Hill, 414. 2. Whether he hare such sufficient understanding is a question to be determined by the Judge at the trial, upon examination of the lunatic himself, and any competent witnesses who can speak to the nature and extent of his insanity. lb. 3. One Defendant, when a competent Witness for another.] Where two were jointly indicted for uttering a forged note, and the trial of one was postponed, it was held that he could not be called as a witness for the other. Commonwealth v. Marsh, 124. 4. Wife of one defendant, when a competent witness for a co-defendant. See p. 126. WRIT OF ERROR. 1 . Lies only for the Defendant.] A writ of error will not lie for the government in any criminal case, after judgment for the defendant upon a demurrer to the indictment. The People y. Corning, 425. 2. In Massachusetts, a writ of error does not lie, in a criminal case, in behalf of the Com- monwealth. Commonwealth v. Cummings, 424. 3. The right to file exceptions, in a criminal case, is confined to the defendant. lb. See Sentence. WRITTEN INSTRUMENTS. Manner of Pleading.] See Indictment. '■ ' ■■-'. ■ '■ ■