..,,^;■ ^!\. OJorn^U ICam ^rl^ool Htbratg Cornell University Library KF 9218.M63C3 V.I Cases on criminal law :a selection of re 3 1924 019 413 370 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019413370 CASES ON CRIMINAL LAW. A SELECTION OF REPORTED CASES ON THE CRIMINAL LAW. WILLIAM E. MIKELL, Assistant Professor of Law in tlie University of Pennsylvania. PHILADELPHIA: INTERNATIONAL PRINTING CO. 1902 Copyright, 1903 By William E. Mikell. PREFACE. This collection of cases is intended for use as a text book in teaching the principles of the criminal law. In the selection of the cases the object has been to present the law as it is ; to trace its growth to its present state, and to indicate its future development. Owing to the lack of unity of the subject — so large a part of it having to do with specific crimes bearing little or no relation to each other — it does not lend itself to acute analysis and, in the arrangement of the topics treated in this book, an attempt at such analysis has been subordinated to the practical consideration of presenting to the student the simpler before the more difficult topics. Portions of some of the cases reprinted have been omitted, but such portions are either irrelevant or cumulative, and in no case restrictive of the principle for which the case is cited. Where a case has not been reprinted in full the fact has been noted. The second part of this book, containing cases on specific crimes, is in course of preparation, and will soon be ready for publication. WILLIAM E. MIKELL. Sewanee, Tennessee. September, 1 902. T.A.BILE OF OOISTTEnSTTS- CHAPTER I. Sources of the Criminal Law. Page Section I. Criminal Law of the Federal Government i Section II. Criminal Law of the States CHAPTER II. The Elements of Crime. Section I. Union of Intent and Act 20 Section II. Offenses against Public Justice and Authority .... 21 Section III. Offenses against the Law of Nations 33 Section IV. Offenses against Religion 36 Section V. Offenses against Public Peace . . ■ • ■ 41 Section VI. Offenses against Public Health 52 Section VII. Offenses against Trade .... 56 Section VIII. Offenses against Public Decency 59 Section IX. Effect of Consent, Condonation, etc. a. Consent of the Person Injured . . . . 68 6. Consent of the State 86 c. Negligence of the Person Injured ... -9° d. Guilt of the Person Injured . . 96 e. Condonation of the Person Injured 100 /. Condonation of the State 105 ^. Custom • 106 Table of Contents. — Continued. Page Section X. Effect of Coercion a. Coverture I09 b. Command • ■ II4 6. Threats ii7 d. Necessity 128 CHAPTER III. The Criminal Intent. Section I. General Principles 134 Section II. Distinction between Intent and Motive 139 Section III. Constructive Intent . 148 Section IV. Specific Intent 167 Section V. Intent in Statutory Crimes 173 Section VI. Concurrence of Several Intents 211 CHAPTER IV. Negligence as Supplying Intent 215 CHAPTER V. Intent as Affected by Conditions. Section I. Ignorance or Mistake of Law 237 Section II. Ignorance or Mistake of Fact 244 Section III. Infancy a. Responsibility of Infants 252 b. Proof of Age 255 Section IV. Insanity a. Test of Insanity 256 b. Proof of Insanity 297 Section V. Intoxication 311 Section VI. Incorporation 328 Table of Contents. — Continued. CHAPTER VI. The Criminal Act. Section I. Concurrence of Act and Intent . . . Section II. Sufficiency of the Act a. Solicitation . . b. Attempt . . c. Conspiracy Section III. Authorized Acts a. Acts in Furtherance of Public Justice b. Acts in Furtherance of Domestic Authority c. Acts in Prevention of Crime d. Acts in Self Defense . . e. Acts in Defense of Others f. Acts in Defense of Property . . g. Acts in Defense of Dwelling ... Page 333 336 342 358 392 399 406 411 433 446 450 CHAPTER VII. Combinations of Persons in Crime. Section I. Principal in the First Degree . . Section II. Principal in the Second Degree . . Section III. Accessory Before the Fact .... Section IV. Accessory After the Fact Section V. Principal and Agent . . . 457 467 487 495 502 [end of part lJ T-A.BX.E OF C.A.SES- A. Page Abley, St. z/ 83 Adams, Com. v. . . . 160 Allen, St. z/. . . 483 Anderson ii. Com 64 z/. St 449 Anon 21 328 411 Arnold, St. z' 255 Arp z/. St 121 Ashton, U. S. z/. .... 128 Axtell's Case 114 B. Bacon's Case 336 Bain i/. St 118 Hansen v. Ossley . ... 467 Beard v. V. S 416 Beck, St. 7/ 68 Bell 7/. St. 59 Bibithe's Case 492 Boyett, St. z/. . 238 Bradley v. Wife 399 Buchanan, St. f 358 Butterfield, Reg. v. . . . 499 Button, P. ?/ 421 Bykerdike, Rex v 362 C. Campbell v. Com 492 Carroll z/. St 45' Cassidy, Com. v. .... 54 Champer z/. St 69 Clark z/. St 355 Coleman, St. z/ 139 Coney, Reg. v 70 Connolly's Case . . . . no Cooper, Rex z' 488 Cote V. Murphy 367 Covington, St. v. . . 77 Cox, St. z/. 483 n Cramer, Com. v 47 Cunningham z/. St 306 Cutter z/. St 241 Page Dade, Rex v 461 Dalrymple, P. z/ 102 Darby, Rex z/ 21 Davis, St. z/ 496 De Longchamps, Resp. v. . . 33 De Ranc6, St. z/ 302 Desvignes, Reg. v 96 n Dill z/. St. . . .... 392 Dixon, Rex v 137 Doddridge, Reg. v 170 Doud, St. z/. . . 32 Dudley, Reg. v. . . . . 131 n Duffin, Rex. v 167 Ellis, St. z' Evanston, City of, v. Myers Eversvale v. Com. . . . F. Fain v. Com. Flack, P. w. . . Flanigan z;. P. Flatman, Reg. v. Floyd V. St. . . . Ford's Case. . Foster v. Com. . Franklin, Reg. v. ■ 23 . 88 453 n 297 138 316 459 412 450 355 n , 158 G. Gardiner z/. P 358 n Gillow, Rex V. 213 Godfrey z/. St 252 Goff, St. z/ -132 Goodall z/. St 413 Grey' s Case 400 Griffith' s Case 467 Grisham z/. St 19 n Guardians of Poor v. Greene . 5 Gufifee z/. St 437 Gut, St. z/ 87n Table of Cases. — Continued. H. Haab, St. v. . Haines, Com. v. Halstead v. St. Harrison, St. v. Hartigan, St. v. Higgins, Rex v. Hinchliffe' s Case . Homer, U. S. v. Holt, Rex V. . Houston, St. V. Howell's Case . Hughes, Rex v. Hull's Case . . Hunt, Rex v. Hutchinson, Com. v. I. Isham V. St. Page 320 41 192 263 72 337 446 i32n 169 iiin 406 110 215 152 338 148 M.— (Continued.) Page Marshall's Case 311 Martin, V. v. . . . . 98 Mather, V. v • ■ 385 Matthews, Reg. v 333 Mercersmith v. St. . . 477 Merritt v. State 259 Mesca, Respub. v. . . . 10 Middleton w. St. . . . . 57 Miers w. St . 429 Milton ^/. St 334 Moore, U. S. w 234 Morgan, St. v. . . . 447 Morrison, Penna. v. . . . . 22 Mosler, Com. v. . . . . . 260 N. Nash, St. V. . . Nickerson, Com. v. 248 75 James v. Com. Jarvis, Rex v. . Jefifries, Reg. v. Jones, St. V. . K. Keenan v. Com. . . Kelly V. Com. . Kelly, Rex v. . . . Kelso Co., U. S. V. Kirby, V. v. Knight's Case . . . L. Latimer, Reg. v. . Lawrence v. St. . Leonine's Case Lesley, Reg. v. . . Longbottom, Reg. i/. 7 49911 464 275 312 342 488 328 142 217 163 106 393 86 94 M. M' Carney w. P 468 McHale, Com. v 27 Macleod, Reg. v 220 McNaghten's Case 256 M'Phane, Reg. v 465 Ma Foo, St. z/ 113 Manley, Reg. v. . . . 457 Marley w. St 352 Marriott, Reg. v 229 O'Brien, St. v. . Oliver, St. v. Ortwein v. Com. 218 399 297 P. Packard, Reg. v. . . 154 Palmer, St. -z/ 297 Parker, St. i/ 15 Patten w. P 433 Peaslee, Com. v. . . 348 Pembliton, Reg. v 171 Pinkard z/. St 335 Pocock, Reg. V. . . ... 233 Powell, Respub. v 56 Poynier, St. 7'. . . .... 470 Prince, Reg. v 173 Presby, Com. v. . 244 Pulle, St. z/. . . ... 16 R. Regan, Rex z/ 141 Rice, U. S. z/ 394 Richards v. Richards . . 4oon Riggs z/. St 114 Rigmaidon's Case ... 217 Robert's Case 100 495 Roberts, Respub. v 13 Rohrheimer v. Winters .... 103 Rosinski, Rex v 74 Ruggles, P. 7/ 36 Table of Cases. — Continued. S. Page Saunders' Case 490 Savage v. State 475 Seed, Com. v. . . 402 Seiler v. P. . ... 112 Senior, Reg. v 143 Shannon zi. Com. . . . 383 Shepherd, Reg. v 223 Sheriff, Com. v 363 Simpson v. St 345 Speiden z/. SL . . . . 80 Stanton, St i>. . . . . i6i Stern 7/. St 202 Stevens, Com. 1/. . . 502 Stewart, St. ^/. . . . . 377 St. John, Com. v. 105 Storey v. St. . . . 406 Summers, Rex v. . -41 Sutton, Rex v 335 X,— COontinued.) Taylor, Com. v. Rex V. . . Thomas, Rex v. . Thurston, Rex v. 44 52 311 237 Tolson, Rex v. Tracy, Reg. v. Vantandillo, Rex v. Vigol, U. S. V. Page 178 489 53 117 w. Waters, Rex v. . . -9° Webster, Rex v. . . . 96 Weiss, Com. v. . . . 205 White V. F .480 Whitten v. St 326 Williams 2/. St 100 ■_ — St. V. . . . . 63 Rex V. . . ... 23 Rex V 211 Williamson, Reg. v i Worrall, U. S. ^ 91 Wray, St. ■z/ 209 Yoes V. St. " No department of law can claim greater moral importance than that which, with the detail and precision necessary for legal purposes, stigmatizes certain kinds of conduct as crimes, the com- mission of which involves, if detected, indelible infamy and the loss, as the case may be, of life, property or personal liberty." 1 Stephens' History of Criminal Law, ix. Chapter I. Sources of the Criminal Law. SECTION I. CRIMINAL LAW OF THE FEDERAL GOVERNMENT. UNITED STATES v. WORRALL. Circuit Court of United States, Pennsylvania District, 1798. 2 Dallas, 384. The defendant was charged with an attempt to bribe Tench Coxe, the Commissioner of the Revenue, the indictment containing two counts. Verdict — Guilty on both counts of the indictment.^ Dallas (who had declined speaking on the facts before the jury) now moved in arrest of judgment. Rawle (District Attorney) contra. Chase, Justice. Do you mean, Mr. Attorney, to support this indictment solely at common law? If you do, I have no difficulty upon the subject. The indictment cannot be maintained in this Court. Rawle, answering in the affirmative, Chase, Justice, stopped Mr. Levy, who was about to reply, in support of the motion in arrest of judgment ; and delivered an opinion to the following effect : Chase, Justice. This is an indictment for an offence highly injurious to morals, and deserving the severest punishment ; but» as it is an indictment at common law, I dismiss, at once, every- thing that has been said about the Constitution and Laws of the United States. ' Part of this case is omitted. 2 Cases on Criminal Law. In this country, every man sustains a two-fold political capacity; one in relation to the State, and another in relation to the United States. In relation to the State, he is subject to various municipal regulations, founded upon the State Constitution and policy, which do not affect him in his relation to the United States ; for the Con- stitution of the Union is the source of all the jurisdiction of the national government; so that the departments of the government can never assume any power that is not expressly granted by that instru- ment, nor exercise a power in any other manner than is there pre- scribed. Besides the particular cases, which the eighth section of the first article designates, there is a power granted to Congress to create, define and punish crimes and offences, whenever they shall deem it necessary and proper by law to do so, for effectuating the objects of the government; and although bribery is not among the crimes and ofTences specifically mentioned, it is certainly included in this general provision. The question, however, does not arise about the power ; but about the exercise of the power : — Whether the Courts of the United States can punish a man for any act, before it is declared by a law of the United States to be criminal ? Now, it appears to my mind, to be as essential, that Congress should define the offences to be tried, and apportion the punish- ments to be inflicted, as that they should erect Courts to try the criminal, or to pronounce a sentence on conviction. It is attempted, however, to supply the silence of the Consti- tution and Statutes of the Union by resorting to the common law for a definition and punishment of the offence which has been committed ; but, in my opinion, the United States, as a Federal government, have no common law ; and, consequently, no indict- ment can be maintained in their Courts for offences merely at the common law. If, indeed, the United States can be supposed, for a moment, to have a common law, it must, I presume, be that of England ; and, yet, it is impossible to trace when or how the system was adopted or introduced. With respect to the individual States, the difficulty does not occur. When the American colonies were first settled by our ancestors, it was held, as well by the set- tlers as by the judges and lawyers of England, that they brought hither, as a birthright and inheritance, so much of the common law as was applicable to their local situation and change of cir- cumstances. But each colony judged for itself what parts of the Cases on Criminal Law. 3 common law were applicable to its new condition ; and in various nrtodes, by legislative acts, by judicial decisions, or by constant usage, adopted some parts and rejected others. Hence, he who shall travel through the different States will soon discover that the whole of the common law of England has been nowhere intro- duced ; that some States have rejected what others have adopted ; and that there is, in short, a great and essential diversity in the subjects to which the common law is applied, as well as in the extent of its application. The common law, therefore, of one State is not the common law of another ; but the common law of England is the law of each State, so far as each State has adopted it ; and it results from that position, connected with the judicial act, that the common law will always apply to suits between citizen and citizen, whether they are instituted in a Federal or State Court. But the question recurs, when and how have the Courts of the United States acquired a common law jurisdiction in criminal cases? The United States must possess the common law them- selves before they can communicate it to their judicial agents. Now, the United States did not bring it with them from England ; the Constitution does not create it ; and no act of Congress has assumed it. Besides, what is the common law to which we are referred ? Is it the common law entire, as it exists in England ; or modified as it exists in some of the States ; and of the various modifications which are we to select, the system of Georgia or New Hampshire, of Pennsylvania or Connecticut ? Upon the whole, it may be a defect in our political institu- tions, it may be an inconvenience in the administration of justice, that the common law authority, relating to crimes and punish- ments, has not been conferred upon the government of the United States, which is a government in other respects also of a limited jurisdiction; but judges cannot remedy. political imperfections, nor supply any legislative omission. I will not say whether the offence is at this time cognizable in a State Court. But, certainly, Con- gress might have provided by law for the present case, as they have provided for other cases of a similar nature ; and yet if Con- gress had ever declared and defined the offence, without prescribing a punishment, I should still have thought it improper to exercise a discretion upon that part of the subject. Peters, Justice. Whenever a government has been estab- 4 Cases on Criminal Law. lished, I have always supposed that a power to preserve itself was a necessary and an inseparable concomitant. But the existence of the Federal government would be precarious, it could no longer be called an independent government, if, for the punishment of offences of this nature, tending to obstruct and pervert the administration of its affairs, an appeal must be made to the State tribunals, or the offenders must escape with absolute impunity. The power to punish misdemeanors is originally and strictly a common law power, of which, I think, the United States are constitutionally possessed. It might have been exercised by Con- gress in the form of a legislative act ; but it may, also, in my opinion, be enforced in a course of judicial proceeding. When- ever an offence aims at the subversion of any Federal institution, or at the corruption of its public officers, it is an offence against the well-being of the United States; from its very nature, it is cognizable under their authority ; and, consequently, it is within the jurisdiction of this Court, by virtue of the eleventh section of the Judicial Act. The Court being divided in opinion, it became a doubt whether sentence could be pronounced upon the defendant ; and a wish was expressed by the Judges and the Attorney of the Dis- trict that the case might be put into such a form as would admit of obtaining the ultimate decision of the Supreme Court upon the important principle of the discussion. But the counsel for the prisoner did not think themselves authorized to enter into a com- promise of that nature. The Court, after a short consultation, and declaring that the sentence .was mitigated in consideration of the defendant's circumstances, proceeded to adjudge : That the defendant be imprisoned for three months ; that he pay a. fine of 200 dollars; and that he stand committed till this sentence be complied with, and the costs of prosecution paid.^ 1 In 1812, the Supreme Court of the United States, in U. S. v. Hudson, 7 Cranch, 32, decided, without argument, that while certain implied powers to fine for contempt, imprison for contumacy, to enforce the observance of order, etc. , necessarily resulted to the Federal Courts from the nature of their institution, the exercise of criminal jurisdiction in common law cases was not within their implied powers. In 1816, the same point arose in U. S. v. Coolidge, I Wheaton, 415. Story, J., said he did not consider the question settled by U. S. v. Hudson. Washington and Livingston, JJ., desired the point argued, and Johnson, J., considered the question no longer an open one; but the Attorney General refusing to argue the point, and no counsel Cases on Criminal Law. SECTION II. CRIMINAL LAW OF THE STATES. GUARDIANS OF THE POOR v. GREENE. Supreme Court of Pennsylvania, 1813. S Binney, 554. This was an action of debt in the Common Pleas of Philadel- phia county, to recover from the defendant the penalty of sixty- dollars, prescribed by the Act of the 29th of March, 1803, for refusing to take the oath of office of a guardian of the poor, for the township of the Northern Liberties, or to undertake the duties of that office. The cause was decided below in favor of the defendant in error. TiLGHMAN, C. J.' The question in this case is, whether the defendant in error, an ordained deacon, and an elder in the Methodist Episcopal Church, is subject to the penalties of the Act of the 29th of March, 1803, for not serving in the office of a guardian of the poor, to which he was elected. There is no doubt but the Commonwealth has a right to insist on the service of every member of the community, in any capacity in which it may be thought proper to exact it. But unless the intention is clearly expressed, it is not to be supposed, that services were meant to be exacted contrary to ancient usage, and involving incompatible duties. Every country has its common law. Ours is composed partly of the common law of England, and partly of our own usages. appearing for the defendant, the Court would not review, nor draw in doubt the decision in U. S. v. Hudson. These two cases have since been frequently relied on as establishing the doctrine. See U. S. -v. Britton, 108 U. S., 199 (1882); In re Greene, 52 Fed. Rep., 104 (1892). In U. S. V. Ramsey, Hempstead, 481, it was held that the Act of Con- gress giving the Circuit Court jurisdiction in murder, did not embrace the crime of accessory before the fact to murder. — Ed. 'Part of the opinion of Tilghman, C. J., and the concurring opinion of Yeates, J., and dissenting opinion of Brackenridge, J., are omitted. 6 Cases on Criminal Law. When our ancestors emigrated from England, they took with them such of the English principles as were convenient for the situation in which they were about to place themselves. It required time and experience to ascertain how much of the English law would be suitable to this country. By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants, till at length, before the time of the revolution, we had formed a system of our own, founded in general on the English Constitution, but not without considerable variations. In nothing was this variation greater than on the subject of religious establishments. The minds of William Penn and his followers would have revolted at the idea of an established church. Liberty to all, but preference to none ; this has been our principle, and this our practice. But although we have had no established church, yet we have not been wanting in that respect, nor niggards of those privileges, which seem proper for the clergy of all religious denom- inations. It has not been our custom to require the services of clergymen in the offices of constables, overseers of the highways, or of the poor, jurors, or others of a similar nature. Not that this exemption is founded on any Act of Assembly, but on an universal tacit consent. In the nature of things, it seems fit, that those per- sons who devote their lives to the service of God, and the religious instruction of their brethren, should be freed from the burden of temporal offices, which would but distract their attention, and may be better filled by others. This sentiment is not peculiar to us. We find it in the English common law, though from motives of policy restricted perhaps to the established church. It is said by Lord Coke, in 2 Inst, 3, 4, to be a principle of the ancient com- mon law, that the clergy shall not be impHcated in secular busi- ness ; and that if a man holding lands, by virtue of which he is bound to serve in temporal offices, become an ecclesiastical person in holy orders, he ought not to- be elected to such office, and if he is, he may have the king's writ for his discharge. And in the Register of Writs, 187, and Fitz. N. B., 175, the form of the writ is to be found. It appears, then, that what the English have applied to their established church, we, in conformity to our principles of religious liberty, have granted to the clergy of all professions. Nor is the privilege confined to common law offices. It is proved by the cases cited in the argument to which I refer, that the same Cases on Criminal Law. J construction has been held with respect to offices created by statute, in which there is no express exemption of the clergy. The rule of construction is this : unless the clergy are mentioned, it shall not be supposed that it was intended to include them. If we apply this rule to the Act of Assembly in question, the case will be easily decided. The act directs that a certain number of substantial householders shall be elected, but is altogether silent as to any exemptions. We must presume, then, that it was not intended to include persons who, from ancient usage, were exempt from this kind of service, oi- who held other offices incompatible with the duty of a guardian of the poor. Without such presump- tion, how is it that judges and attorneys at law are privileged ? They have no express privilege by that or any other law, but in sound construction they are excepted from the general words of the act. My opinion is, that the Court of Common Pleas were right in their construction of the Act of Assembly, and therefore their judgment should be affirmed. JAMES V. COMMONWEALTH. Supreme Court of Pennsylvania, 1825. 12 Sergeant and Rawle, 220. This was a writ of error to the Court of Quarter Sessions of Philadelphia county ; at the September sessions of which court Nancy James, the plaintiff in error, had been convicted of being a common scold, and thereupon, on the 29th day of October, 1824, adjudged "to be placed in a certain engine of correction, called a cucking, or ducking stool, and being placed therein to be plunged three times into the water ; to pay the costs of prosecution, and stand committed till the sentence is complied with." The error assigned was 'nhat this judgment is illegal." Swift, for the plaintiff in error. Pettit, Deputy Attorney-General, for the Commonwealth. Duncan, J.^ This sentence, we are informed, has created ^ Only extracts from the opinion are printed. 8 Cases on Criminal Law. much ferment and excitement in the public mind. It is con- sidered as a cruel, unusual, unnatural, and ludicrous judgment. But whatever prejudices may exist against it, still, if it be the law of the land, the court must pronounce judgment for it. But, as it is revolting to humanity, and is of that description that only could have been invented in an age of barbarism, we ought to be well persuaded, either that it is the appropriate judgment of the common law, or is inflicted by some positive law ; and that that common law or statutory provision has been adopted here, and is now in force. The late Judge Ingersoll, a name respected and honored, when attorney general, in his report to the legislature in 1813, slated, that by several acts of assembly " cruel and unnatural pun- ishments, which tended only to harden and confirm the criminal, had been abolished for all inferior offences." The sanguinary code of England could be no favorite with William Penn and his followers, who fled from persecution. Cruel punishments were not likely to be introduced by a society who denied the right to touch the life of man, even for the most atrocious crime. For had they brought with them the whole body of the British criminal law, then we should have had the appeal of death, and the impious spectacle of trial by battle in a Quaker colony ; and it is Worthy of remem- brance, that the charter of William Penn empowered him, with the advice and assent of the freemen, to make laws for their own gov- ernment, and until this was done, the laws of England in respect to real and personal property, and as to felonies, were to continue the same. Thus, as to misdemeanors, the common law punishments were not brought over by the first settlers. The first body of laws (called the great body of laws) contains an act passed in 1682, against scolding, imposing the penalty, five shillings, or three days confinement at hard labor. (Chap. 34.) The second act, in 1683 (chap. 12), inflicts the same penalty, or standing one hour in "the most public place, with a gag in the mouth; and, eleven years after this, in 1693, in the petition of right to Governor Fletcher, they state that the laws contained in that list had not been repealed by the King in council and that it had pleased the King and Queen so tenderly to regard their happy government, as to confirm their laws and constitutions, so fitly accommodated to their circumstances, and conclude by earnestly desiring him to Cases on Criminal Law. 9 •govern them according to these laws, including the laws against scolding ; and the governor commanded them to be enforced. These acts continued in force until 1 770, when another act against scolding passed, inflicting the same penalty, of imprisonment five •days at hard labor, or to be gagged and stand at some convenient place, at the discretion of the magistrate. The act of 1770 was repealed by the Queen in council, but I have not been able to find the repeal of the acts of 1682 and 1683. It seems to have been the opinion of the late Judge Bradford, that all in the great body of laws was repealed, and I would not venture totally to dissent from so high an authority, though I must confess I think this very doubtful. Nor do I see how, consistently with the charter, this could other- wise be repealed, than by act of assembly. If they were not directly repealed, they were not virtually repealed by the repeal of the act of 1700. Whatever be the fact, the conclusion is the same, — that the common law punishment of ducking was not received nor em- bodied by usage, so as to become a part of the common law of Pennsylvania. It was rejected, as not accommodated to the cir- ■cumstances of the country, and against all the notions of punish- ment entertained by this primitive and humane community ; and though they adopted the common law doctrines as to inferior offences, yet they did not follow their punishments. One remarkable instance I will notice. A gross libel in England was sometimes punished by the pillory ; I believe Mr. Prynne lost both his ears. Though the offence is the same here, yet the sentence is very dif- ferent. It is not true that our ancestors brought with them all the common law offences ; for instance, that of champerty and main- tenance, this court decided in Stoeverz'. Whitman's Lessee, 6 Binn., 416, did not exist here. I do not find the rule on this subject more satisfactorily laid down anywhere than by the Chief Justice, in The Guardians of the Poor of Philadelphia v. Greene, 5 Binn., 558. This is a very different question from the common law rules of real and personal property, — the modes of acquisition and alienation of estates. For although the reasons of many of those rules have ceased, yet it might be dangerous, on that account, to abolish them ; as it would lessen the security of property of titles to land, which should always be firm and stable ; and by the charter they were to remain the same as in England, except when altered by the representatives of the people. But I am far from lo Cases on Criminal Law. professing the same reverence for all the degrading and ludicrous punishments of the early days of the common law. I am far from thinking that this is an unbroken pillar of the common law, or that to remove this rubbish would impair a structure which no man can admire more than I do. But I must confess, I am not so idolatrous a worshipper as to tie myself to the tail of this dung- cart of the common law. * * * The courts of our sister States of New York and Massachusetts, governed by the same common law as we are, have declared that this strange and ludicrous punish- ment no longer exists with them. In considering this question, I own, I have some hesitation in deciding whether the offence of communis vexatrix exists as indictable, but I have acceded to the opinion of the Chief Justice and my brother Gibson ; it is now to be considered as indictable and punishable as a common nuisance, by fine, or by fine and imprisonment, at the discretion of the Court, the acts of assembly being obsolete, and the common law punishment of ducking, not being received here ; and I join in the hope of a learned antiqua- rian and jurist of our own country, " that we shall hereafter hear nothing of the ducking stool, or other remains of the customs of barbarous ages." Duponceau on Jurisdiction, 96. It is there- fore the opinion of the court, that the judgment of the Court of Quarter Sessions be reversed. Judgment Reversed. RESPUBLICA V. MESCA. Oyer and Terminer at Philadelphia, 1783. I Dallas, "jj. This was an indictment against four Italians for the murder of Captain Pickles ; and, upon the arraignment of the prisoners, the Court assigned Ingersol and Swift as counsel for them. These gentlemen then challenged the a.rTay, and moved for an award of a ta/es de medietate linguce ; but the Attorney General controverted the propriety of the motion, and it was twice argued, on the 25th and 29th of September. The counsel for the prisoners urged that the Stat, of Edw. 3., c. 13, was a beneficial law, encouraging foreigners to come into the Cases on Criminal Law. ii country ; that, in practice, it had been extended to Pennsylvania before the revolution, and sound policy justified its continuance. In the course of their argument the following authorities were cited : i Pen. Laws 89, 28 ; Edw. 3, c. 13 ; 4 Bl. Com., 352 ; 2 H. H. P. C, 271-272 ; Dyer, 304; Chart, of Ch., 2 to Penn. ; 2 Wils., 75 ; Salk., 411. To prove ^he practice, Thomas Clifford, upon his solemn affir- mation, stated, that in February, 1764, a burglary was committed in his dwelling house in Philadelphia; that one Brinkloe, being apprehended upon suspicion, accused William Frederick Ottenreed whereupon they were both imprisoned and. tried ; and to the best of the witnesses' recollection, Ottenreed was allowed to have a moiety of foreigners on his jurj'. The Attorney General observed that thequestion turned upon this point — how far the English statutes were extended to Penn- sylvania? and by what authority they could be extended, whether exclusively by an act of the Legislature, or, likewise, by the adjudi- cations of the supreme court ? The sentiment of the foreign jurists seemed, he said, to be crude and undigested upon this subject ; but certain principles, which had obtained the authority of a general assent, might serve as a directory to form an accurate judgment. He then adverted to several acts of Parliament which did not extend, as the act of limitations, Jac. 2, the 28 H., 8, respecting pirates etc., and urged that, by the royal charter, the common law, and statute law, relating to felonies were extended ; but that statutes merely relating to the mode of trial did not extend ; on which account laws were passed in that respect, soon after the settlement of the province. With respect to the statute immediately in question, he con- tended, that it never had been extended by the Legislature, because it was thought unnecessary, and might often be greatly inconve- nient ; for in every case where foreigners were tried, the humane provision of our laws, which allows them counsel, would then be defeated. A trial per medietatem lingua was never granted to Indians, or Negroes ; nor is it, indeed, pretended to have taken place in any more than one instance ; and that, too, rests entirely on the recollection of a single witness. The Attorney General cited : 2 Hawk., 420 ; Tri. per Pais, 247 ; Dyer, 357 ; a. Cro. E, 869 ; Smith's History of New York, 12 Cases on Criminal Law. 24, 243; 2 Pen. Laws, 2; i Pen. Laws in App., 318; Votes of Ass., Vol. I, p. 6, 53 ; 106 id. in App., 11 ; i Pen. Laws, 88, 1 14 ; Votes of Ass., Vol. 2, p. 22, 211, 234; Robin, view State of Europe, 395. The Chief Justice delivered the opinion of the Court as follows : McKean, C. J. The point before the court has been well argued ; and, on a full consideration of the subject, we now find little difficulty in pronouncing our decision. The first Legislature under the Commonwealth, has clearly fixed the rule respecting the extension of British statutes by enacting that "such of the statutes " as have been in force in the late province of Pennsylvania, should " remain in force, till altered by the Legislature." And it appears in evidence, that the 28 Edw. 3., c. 13, has been in force in the late province, since a trial per medietatem linguce was allowed in the case of a burglary committed by one Ottenreed, in the mansion house of Mr. Clifford. Whether it was intended by the act, to which I have referred, to include only such statutes as were in force, by an express exten- sion of the Legislature ; or to comprehend, likewise, such statutes as had been extended by the judgment of the Supreme Court, or received there in usage, seems to be, in some degree, uncertain. We know, however, that many statutes for near a century, have been practiced under in the late province, which were never adopted by the Legislature ; and that they might be admitted by usage, and so become in force, was the opinion of the British Par- liament, declared in a statute passed in the year 1754, enabling legatees to be witnesses to wills and testaments. If, therefore, the statute in question has been, by any means, legally in force ; a necessity is, seemingly, imposed upon us, to grant the challenge to the array, which has been made on behalf of the prisoners. But if this was a new case, the judgment of the court would be different ; for, the reasons which give rise to the 28 Edw. 3, do not apply to the present government, nor to the general circum- stances of the country. Prisoners have here a right to the testi- mony of their witnesses upon oath, and to the assistance of counsel, as well as in matters of fact, as of law ; which was not the case in England in the year 1353, when that statute was enacted. We do not think, indeed, that granting a medietas linguce, will, at all, contribute to the advancement of justice ; and we know it is a Cases on Criminal Law. 13 privilege which the citizens of Pennsylvania cannot reciprocally enjoy, as, at this day, there are no juries in any part of Europe, except in the British dominions. On the ground, however, of the precedent which has been shown, we hold ourselves bound, on this occasion, to allow the challenge, and to grant a trial per medietatem Ungues. RESPUBLICA V. ROBERTS. Supreme Court of Pennsylvania, 1791. I Yeates, 6. The defendant was tried at the last Nisi Prius Court for Bucks county, and a special verdict found by consent. It stated, that he was an unmarried man, and had been guilty of criminal conversa- tion with Isabella McGlister, a married woman, her husband being then and now in full life. And whether the same were punishable as adultery in him, was the question. He had also been charged with bastardy, but as the Attorney General had admitted at the trial that her husband had not been far distant from her, and that she was not a competent witness to prove the want of access, he was acquitted of that charge by consent. Mr. Bradford, Attorney General, contended that the facts found involved him in the offense of adultery ; that the Act of Assembly in 1705 did not describe what adultery was, and there- fore the only point was, what was the received idea of the Legisla- ture when they passed the law. That the rule of construction, as settled in i Blackst. Com., 59, was to find out the meaning either in the common and popular sense, or considered as a technical term, according to the received sense of the learned in that science. To establish the common and popular sense of the word, he cited Johnston's Diet. Voc. Adultery; 20 Chap. Leviticus, verse 10; 19 Chap. Matthew 9 ; 6 Chap. Proverbs, 29 and 32d verses ; where the word is used as a general violation of the marriage bed, according to its derivation, " ad ulterius thorum " ascendere. To fix its tech- nical sense, he cited 2 Inst. 486, 435 ; Cowel's Law Diet. Voc. Adultery; 4 Blackst. 64, 65, 191; 4 Burr. 2057; Pandects of the Civil Law, 82; Wood's Inst, of Civil Law, 300, 261 ; 2 Ld. 14 Cases on Criminal Law. Raym. 802 ; Laws of Connecticut, p. 8, and Espinasse, 430, that actions of crim. con. are styled in the modern books, actions of adultery. Mr. Sergeant, for the defendant, contended that the crime was different in the civil and canon laws, and cited Encyclopaedia Voc. Adultery, and that the Act of Assembly particularly describ- ing that an unmarried woman having a child born of her body shall be deemed guilty of fornication, could not intend that the offence of an unmarried man should be greater than that of an unmarried woman. And that the true mode of fixing the meaning of the term was by the uniform general practice of courts of justice, who had proceeded only against married persons as having been guilty of adultery. To this the Attorney General replied, that no argument can be drawn from the practice, as it had received no judicial decision, and that public prosecutors might proceed against the party offend- ing for the lesser offence, for a variety of reasons, as he himself had actually done this term ; and further cited Pailey's Moral Philosophy, 201. Per Cur. The single question is, whether an unmarried man may be guilty of adultery, under the Act of Assembly. Originally the offence was of temporal jurisdiction, but after the statute of circutnspecte agatis, it was remitted to the bishop of Norwich, and through him to the spiritual courts. Had the case been res Integra, the decision of the court might be different from what it now is. It is true that practice sub silentio will not make the law, but it is strong evidence of what the law is. It having been the constant practice to proceed against unmarried persons for fornication, though they may have been guilty of crim- inal conversation with married persons, we will not exaggerate the offence, nor carry it further than our predecessors have done ; and, therefore, the court pronounce him guilty of fornication, and fine him 10/. and the costs, and commit him to the Sheriff of Philadel- phia county, who always executes the process of the court in banc. Shippen J. The practice above-mentioned is truly stated from my personal knowledge for forty-eight years past.^ ' Part of this case is omitted. Cases on Criminal Law. 15 STATE V. PARKER. Supreme Court of North Carolina, 1884. 91 North Carolina, 650. Indictment for retailing liquor, tried at Spring Term, 1884, of Cleveland Superior Court, before MacRae, J. The defendant was indicted for selling liquor within two and a half miles of Zion Church in Cleveland county. The indictment was preferred under the Act of 1883, ch. 166, §7, which is as follows : " That it shall be unlawful for any person to sell, or in any manner, directly or indirectly, receive compensa- tion for any spirituous or other intoxicating liquors in the localities hereinafter named * * * within two and a half miles of Zion Baptist Church, in Cleveland county." There are like inhibitions in sections four, five and six of the act. And in section eight it is provided " that any person violating the provisions of sections four, five and six of this act, shall be deemed guilty of a misde- meanor." The defendant contended that, inasmuch as the seventh sec- tion was omitted in the enumeration of the sections of the act, the violation of which was made indictable by the eighth section, the violation of that section was not the subject of a criminal prose- cution, and that therefore the defendant ought to be acquitted. His Honor did not concur in this view, but held that " as the law made it unlawful to sell liquor as aforesaid, it was a misde- meanor to violate the same, though not so expressly declared, and charged the jury accordingly. The defendant was convicted and appealed from the judg- ment pronounced. Attorney General, for the State. Messrs. Gidney & Webb, for defendant. Ashe, J. There is no error in the charge given by his Honor. No doubt the seventh section was omitted to be men- tioned in the eighth section through inadvertence ; or, it may be, that it was a mistake in the printer. Be that as it may, it can make no difference, for there can be no doubt, as his Honor held, that the defendant is indictable at common law. i6 Cases on Criminal Law. If a statute prohibit a matter of public grievance, or com- mand a matter of public convenience, all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors, at common law, are punishable by indictment, if the statute specify no other mode of proceeding. Arch. Cr. Law 2 ; 2 Hawk., ch. 25, § 4. There is no other mode of proceeding speci- fied in the act ; ergo, the defendant is indictable at common law.. Let this be certified, &c. No error. Affirmed. STATE V. PULLE. Supreme Court of Minnesota, 1866. 12 Minnesota, 164. Wilson, Ch. J.' The common law so far as it is applicable to our situation and government, is, as a general rule, the law of this country. Every State, with perhaps one exception, has adopted it, either tacitly or by express statutory enactment. See i Kent's Commentaries, 470-3, note and cases in note. That it is the law of" this State, controlling both the rights and the remedies of parties in actions between individuals, either on a contract or for a tort, cannot be doubted, for the courts have recognized and acted on this fact ever since the organization of our territorial government, and we find no evidence which satisfies us that either the State or territory intended to repudiate the common law as a source of juris- diction in either criminal or civil cases. It having been adopted in civil cases, the presumption certainly is that it was adopted as an entirety, so far as it is not inconsistent with our circumstances, or statutory or constitutional law. Nor do the laws in force in Wis- consin territory at the date of the admission of the State of Wisconsin (which, by our organic act were declared to be valid and operative in Minnesota territory), rebut this presumption. There is nothing in these laws which shows that the territory of Wisconsin abrogated or repealed the common law as to crimes, but on the contrary, we think they show that it was recognized and adopted in that terri- tory. That our statutes expressly abolish common law offenses, is. 'The opinion only is printed. Cases on Criminal Law. 17 not pretended. A statute which is clearly repugnant to the com- mon law must be held as repealing it, for the last expression of the legislative will must prevail. Or we may admit, for the purposes of this case, that when a new statute covers the whole ground occupied by a previous one, or by the common law, it repeals, by implication, the prior law, though there is no repugnancy. Beyond this the authorities do not go in sustaining a repeal of the common law by implication. On the contrary, it is well settled that where a statute does not especially repeal or cover the whole ground occupied by the common law it repeals it only when, and so far as directly and irreconcilably opposed in terms. See i Bish. Cr. Law, 3ded.,sec. 195 to 200, and cases cited in notes to said sections. Our statutes fall far short of covering the whole field of com- mon law crimes. It is not pretended that conspiracy is, by them, made a crime, and we think it very clear that libel is not, and many other instances might be added. We think, therefore, that they do not, by implication, abolish these crimes. But further than this, we think our statutes clearly recognize the existence of com- mon law offenses. Sec. 2, chapter 87, Comp. Stat., reads as fol- lows : ****'! Crimes and public offenses and criminal proceedings are modified as prescribed in these statutes." The Revised Statutes were adopted in 185 1, and the language above quoted was added as an amendment in 1852. It is perhaps true that this amendment did not change the meaning of the statutes, but legislators frequently, and properly, make use of language which, strictly speaking, is unnecessary, out of abundant caution, and for the purpose of making clear what otherwise might, in the minds of some, admit of doubt. We think, in this view, the Legis- lature must have used the language above quoted, to show that our statutes, as to crimes, were intended merely as a modification, and not as an entire repeal, or abrogation of the common law. This seems to us the fair and natural meaning of the language, and any other construction suggested seems forced and unauthorized. Section 34 of chap. 90 of said statutes reads : " Every person who shall be convicted of any gross fraud or cheat, at common law, shall be punished," &c. Sec. 5, chap. 98, ib., reads : " Every person who shall become an accessory after the fact, to any felony, either by common law, or by any statu,te made, or which shall hereafter be made, may be indicted," &c. Our statutes, in no i8 Cases on Criminal Law. place, declare that any act shall constitute the crime of libel, or that such crime shall be punished, yet they provide as to what evidence may be given, and as to the form and substance of the indictment in prosecutions for such crime. Comp. Stat. 734, sec. 6 ; ib. 756, sec. 3 ; ib. 760, sec. 17. These sections are an admis- sion, or recognition by the Legislature of the fact that common law offenses may be punished in this State. This conclusion is in accordance with the views entertained by the courts generally throughout the United States. See authorities cited in note to Section 36, i Bishop Cr. Law, 3d ed. Ohio seems to be an exception to this general rule, but we have carefully examined the statutes of that State, and do not find that they, like our statutes, recognize the existence of common law offenses. The cases cited from that State can, therefore, not be held as opposed to the decision arrived at in this case. The case of Estes V. Carter, 10 Iowa, 400, holds, that no common law offense not recognized by the criminal statutes of that State will be treated or punished as a crime by the courts. The decision is based on two grounds ; 1st, the peculiar wording of the Constitution of that State ; and, 2d, that the statutory offenses so nearly cover all the common law offenses, that it is reasonable to infer that those which were omitted were intended to be excluded. If the statutes of that State, to which we have not had access, are similar to ours, we cannot admit that the second ground on which the decision is based, is tenable, for it is certainly a well-settled rule, that statutes are not to be construed as repealing the common law beyond their words^ or the clear expression of their provisions. Beyond this, no admitted rule of interpretation permits us to presume an intention to repeal. See authorities above cited. There is a remark made by the court in the case of Benson v. State, 5 Minn., 21, which the counsel for the defendant refers to in support of his view, but the point was not considered or decided by the court in that case. This remark deserves, and has received, the consideration due to the views of the learned judge who deliv- ered that opinion. Whether it would be wise for the Legislature to repeal the common law as a source of jurisdiction in criminal mat- ters, it is not for us tQ determine. If common law crimes are suspended or abolished by our statutes, so are "criminal proceedings "; but the Legislature, by the Cases on Criminal Law. 19 express and particular repeal of certain criminal practice and proceeding (Comp. Stat, p. 735, sec. 14; ib., p. 785, sec. 37), clearly indicated that they did not consider the general statute as affecting such repeal. The gist of this offense is the unlawful con- federation, and it is not necessary to prove an overt act in pursuance of it. Commonwealth v. Judd, 2 Mass., 329. The exceptions are overruled. Berry, J. — I dissent. In my judgment no offenses at com- mon law are offenses in this State, except such as as are specifi- cally recognized by our statutes.' ^The common law in so far as it determines what acts are crimes is not in force in the following states . Indiana — Jones 7/. St., 59 Ind., 229 (1877); Iowa — Estes v. Carter, 10 Iowa, 400 (i860); Kansas — St. v. Young, 55 Kans., 349 (1895) ; Michigan — In re Lamphere, 61 Mich., 105 (1886) ; Ohio — Smith V. St., 12 Ohio St., 466 (1861) ; Oregon — St. v. Gaunt, 13 Ore., 115 < 1 885). —Ed. Ecclesiastical Offences. — It is said in Grisham & Ligan v. State, 2 Yerger, p. 595, (1831): "But let it be understood that the temporal courts in England have no cognizance of the crime of adultery or fornication, when secret and private and confined to single instances, yet they are not thereby legalized, or rendered dispunishable, as not being offenses ; they continue offenses there still, but their cognizance is transferred and assigned to the spiritual court, who punish according to the rules of the canon law. It cannot follow as a consequence, that an offense which is common to both the law of England and this State, and is animadverted upon by the law of England, and punished by the spiritual court there, shall escape the like animadversion of the law and punishment here, because we have not a spiritual court ; but it rather follows from analogy, that our county courts of pleas and quarter sessions have the jurisdiction in these matters, as we find that matters, the proper tribunal of which was the spiritual court in England, are in this State, when not repugnant to our Constitution and form of government, assigned to the county courts, as the probate of wills and testaments, the granting of letters of administration, &c.' ' The great majority of the authorities, however, hold that offences cogniz- able only in the spiritual courts in England, cannot be punished here except by statute. — Ed. 20 Cases on Criminal Law. Chapter II. The Elements of Crime. SECTION I. UNION OF INTENT AND ACT. YOES V. STATE. Supreme Court of Arkansas, 1848. 9 Arkansas, 42. Enos Yoes was indicted in Washington Circuit Court for an assault and battery upon James C. Hughes, He was tried on the plea of not guilty, at the May Term, 1847, before the Hon. Wm. W. Floyd, Judge, convicted and fined ten dollars.^ Johnson, C. J. The Circuit Court manifestly erred in giving the first instruction asked by the State. The instruction is, that if the jury believe from the evidence that the defendant went to the meeting-house yard and called Hughes out for the purpose of having a difficulty with him, they should find him guilty. A crime or misdemeanor consists in a violation of public law, in the com- mission of which there must be a union or joint operation of act and intention or criminal negligence. See ist sec. of chap. 44 of the Revised Statutes. The mere fact of going to a place with the intention of doing an unlawful act, will not of itself subject the party to the punishment denounced against such act, unless he also .carries his intention into effect. If the defendant below actually made an assault upon Hughes in pursuance of his preconceived and settled intention, then it was that the motives, which induced him to go to the place where Hughes was, might have been legitimately inquired into in aggravation of the fine, but could not under any state of case have furnished conclusive evidence of his guilt. No valid objection is perceived to the last instruction. But for the error in giving the first, the judgment must be reversed. . ' The evidence and charge of the court are omitted. Cases on Criminal Law. 21 SECTION II. OFFENCES AGAINST PUBLIC JUSTICE AND AUTHORITY. ANONYMOUS. King's Bench, 1686. 3 Modern, 52. One was indicted for the drinking of an health to the pious memory of Stephen College, who was executed at Oxford for high treason. He was fined one thousand pounds, and had sentence to stand in the pillory, and was ordered to find sureties for his good behavior.' REX V. DARBY. King's Bench, 1687. 3 Modern, 139. The defendant was indicted for speaking of scandalous words of Sir John Kerle, a justice of the peace, viz : " Sir John Kerle is a buffle-headed fellow, and doth not understand law ; he is not fit to talk law with me ; I have baffled him, and he hath not done my client justice." This is a scandal upon the government, and it is as much as to say that the king hath appointed an ignorant man to be a justice of peace, for which an indictment will lie.^ And of that opinion was the whole Court, and gave judgment accordingly.' ' See also, absolving impenitent traitors, Rex v. Cook, Comb. 382 (1696). — Ed. ^ Part of this case is omitted, 'Accord: Anon. Comb. 46 (1688); Rex v. Collier, i Wils., 332 (1752); but see Reg. v. Wrightson, 11 Mod. 166 (1708); Rex v. Weltje, 2 Camp., 142(1809). — Ed. 22 Cases on Criminal Law. PENNSYLVANIA v. MORRISON. County Court of Allegheny, 1795. Addison, Pa., 2^^. These men were indicted for having, on i8th August, 1794, unlawfully, riotously, and routously assembled together, to disturb the peace, and, in Market Street in Pittsburg, raised a pole or standard, called a liberty-pole, in defiance of the laws of the State of Pennsylvania, and of the United States, and as an indignity and insult to the Honorable James Ross, Jasper Yeates, and William Bradford, Esquires, commissioners on behalf of the United States of America, and the Honorable Thomas McKeah and William Irwin, Esquires,, commissioners on behalf of the State of Pennsylvania, to confer with the citizens of the counties west of the Alleghany mountains ; to the great disturbance of the peace, and to the ill example of others.^ President. Pole raising was a notorious symptom of dissatis- faction, and the exhibition of this, in the only part of the country where government was supposed to have strength, must have made an impression very unfavorable to the whole countiy, promoted violence in the people here, and induced force on the part of the government. All the evidence of their acting under duress, is their saying so. It is, at least, as probable, that this was a cover for their real motives, an opposition to the civil authority. Why did not these men sign the amnesty, when almost every man besides in the town signed it ? They surely refrained not from a consciousness of innocence. It is somewhat singular, if danger then existed, that the only men in this town anxious for its safety, were men of little or no property in it ; and that then all the men of property were against this measure. When there was real danger, all the town went to Brad- dock's Field. The act of raising a pole in the street is itself unlawful, inde- pendent of any other ill intention. The probability is that the intention was an unlawful opposition to the government, and that the excuse was feigned to cover their real designs. Verdict guilty, except as to White and Mc Williams. ^ Part of this case is omitted. Cases on Criminal Law. 23 REX V WILLIAMS. King's Bench, 1762. 3 Burrows, 13 17. An information was granted by the Court against the defend- ants, as justices of the peace for the borough of Penryn, for re- fusing to grant licenses to those publicans who voted against their recommendation of candidates for members of Parliament for that borough. It appeared that they had acted very grossly in this matter, having previously threatened to ruin these people, by not granting them licenses, in case they should vote against those candidates whose interest those justices themselves espoused, and afterwards actually refusing them licenses upon this account only. And Lord Mansfield declared that the Court granted this infor- mation against the justices, not for the mere refusing to grant the licenses (which they had a discretion to grant or refuse, as they should see to be right and proper), but for the corrupt motive of such refusal, for their oppressive and unjust refusing to grant them, because the persons applying for them would not give their votes for members of Parliament as the justices would have had them. ^ STATE V. ELLIS. Supreme Court of New Jersey, 1868. 33 New Jersey Law, 102. The opinion of the court was delivered by Dalrimple, J.^ The indictment in this case was removed into this court by certiorari to the sessions of Hudson. It sets forth in substance, in language sufficiently plain and intelligible, that application having been duly made to the common council of Jersey City for leave to lay a railroad track along one of the public ■Accord : C. v. Alexander, 4 Hen. and M. 522 (1808) ; corruption in office, C. V. Callaghan, 2 Va. Cas. 460 (1825); being intoxicated while in discharge of office. — Ed. ^ The opinion only is printed. 24 Cases on Criminal Law. streets of that city, the defendant wickedly and corruptly offered to one of the members of said common council the sum of fifty dollars to vote in favor of said application. Upon return of the certiorari, a motion was made to quash the indictment, on the ground that the facts set forth do not constitute a crime. It is said that the common law offence of bribery can only be predicated of a reward given to a judge or other official concerned in the administration of justice. The earlier text writers thus define the offence : " Where any man in judicial place takes any fee or pension, robe or livery, gift, reward or brocage, of any person, that hath to do before him in any way, for doing his office, or by color of his office, but of the king only, unless it be meatand drink, and that of small value." 3 Inst, 145. The defi- nition in 4 Blackstone'sCom., 139, is to the same effect. HaWkins, in his Pleas of the Crown, Vol. i, p. 312, gives, substantially, the same description of the offence, but adds : "Also, bribery signifies the taking or giving of a reward for offices of a public nature." The later commentators, supported, as I think, by the adjudged cases, however, maintain the broader doctrine, that any attempt to influence an officer in his official conduct, whether in the execu- tive, legislative, or judicial department of the government, by the offer of a reward or pecuniary consideration, is an indictable common law misdemeanor. 3 Greenleaf's Ev., § 71 ; Bishop on Criminal Law, Vol. i,, § 95, and riotes ; i Russell on Crimes, 156. The case of Rex v. Vaughan, 4 Burn, 2494, arose upon motion for an information for a misdemeanor against the defendant for offering money to the Duke of Grafton, First Lord of the Treasury, to procure the defendant's appointment by the Crown to an office. Lord Mansfield, in his opinion in that case, says : " If these trans- actions are believed to be frequent, it is time to put a stop to them. A minister, trusted by the king to recommend fit persons to offices, would betray that trust, and disappoint that confidence, if he should secretly take a bribe for that recommendation." The motion was granted. In the case of Rex v. Plympton, 2 Lord Raymond, 1377, the court held that it was an offence to bribe persons to vote at election of members of a corporation. Many other cases might be cited in support of the general proposition laid down by the later text writers above referred to. The cases will, however, all be found collated in 2d Bishop's Criminal Law, in Cases on Criminal Law. 25 the notes to § "j^ and J^. Indeed, the authorities seem to be all one way. Neither upon principle nor authority can the crime of bribery be confined to acts done to corrupt officers concerned in the administration of justice. If in the case now before us, it was no crime for the defendant to offer, it would have been no crime for the councilman to accept the bribe. The result would, there- fore, be that votes of members of council on all questions coming before them, could be bought and sold like merchandise in the market. The law is otherwise. The common law offence of bribery is indictable and punishable in this State. Our statutes against bribery merely define and fix the punishment for the offence, in cases of bribery of judicial officers and members of the legislature ; they do not repeal or abrogate, or otherwise alter the common law. It is contended, in the next place, that the facts set forth in the indictment constitute no offence, inasmuch as the common council had not jurisdiction to grant the application for which the vote was sought to be bought. In my opinion, it is entirely immaterial whether council had or had not jurisdiction over the subject matter of the application. If the application was, in point of fact, made, an attempt to procure votes for it by bribery was criminal. The offence is complete when an offer of reward is made to influ- ence the vote or action of the official. It need not be averred, that the vote, if procured, would have produced the desired result, nor that the official, or the body of which he was a member, had authority by law to do the thing sought to be accomplished. Suppose an application made to a justice of the peace, in the court for the trial of small causes, for a summons in case of replevin, for slander, assault and battery, or trespass, wherein title to lands is involved : over these actions a justice of the peace has no juris- diction, and any judgment he might render therein, would be coram non judicc and void ; yet, I think, it can hardly be con- tended, that a justice thus applied to may be offered, and with impunity accept a reward, to issue a summons in any case without his jurisdiction. If the common council of Jersey City had not authority to grant the application referred to, the act of the defendant in endeavoring to procure the grant asked for was only the more criminal, because he sought, by the corrupt use of money, to purchase from council an easement which they had no 26 Cases qn Criminal Law. authority to grant. He thereby endeavored to induce them tc step beyond the line of their duty, and usurp authority not com- mitted to them. The gist of the offence is said to be the tendency of the bribe to pervert justice in any of the governmental depart- ments, executive, legislative, or judicial. 2 Bishop's Criminal Law,. § 96, Would it not be a plain perversion of justice, to buy the- votes of councilmen in favor of a surrender of the streets of the city, for the purposes of a railroad, when such surrender' is unau- thorized by law ? The rights of the citizens of the municipaUty thus corruptly tampered with and bargained away, might be- regained after a long and expensive litigation, or in some other mode ; nevertheless, bribery and corruption would have done, to- some extent at least, their work, and the due course of justice have been disturbed. But I am not prepared to assent, as at present, advised, to the proposition that the common council could not properly entertain the application. They were asked by a char- tered railroad company of this State, having its terminus in Jersey- City, to consent that a railroad track might be laid along one of the public streets of that city. It is not pretended that any legislative- authority to lay such track had been obtained. The railroad company- could not, under these circumstances, lawfully appropriate to its- use one of the public streets of the city without the consent of the city, which has full control over all public streets within the city limits. Laws of 1851, p. 406, § 6. Whether or not the common council has the power, with or without legislative sanction, to grant the use of a public street to a railroad company for the uses of the railroad, it is, I think, clear that no such use can be made of the streets, without the consent, of the city, in the absence of a legislative grant to that effect. Nor is it material whether the railroad company which applied for the privilege, had the power under its charter to lay the track. Application had been duly made for that purpose, and was pending. An attempt to bribe a member of council to vote upon it, whether such attempt was made after or before the intro- duction of an ordinance or resolution granting the privilege asked,, comes within the general law against bribery. Whether the common council had authority to make the grant, or the railroad company the power to avail itself of its benefits, if made, or whether the offer of a bribe was before or after the application in Cases on Criminal Law. 27 due course of proceeding, had been embodied in an ordinance or resolution, is immaterial. The offer of anything of value in corrupt payment or reward for any official act, legislative, execu- tive, or judicial, to be done, is an indictable offence at the common law. The objections taken are not tenable, and the motion to quash must be denied. Motion denied. ^ COMMONWEALTH v. McHALE. Supreme Court of Pennsylvania, 1881. 97 Pennsylvania, 407. Paxson, J.^ — The indictment against Anthony McHale con- tains three counts. In the first count it is charged that " intending to procure a false count and return of the votes cast by the elec- tors," etc., he did " make false and fraudulent entries in the books kept by the clerks at said election in said election district, which books are commonly known as the list of voters, of the names of divers persons, to wit, twenty-one persons whose names are as fol- lows," etc. The second count charges that, with like intent, he did " deposit among the ballots CEist at said election in said election district by the electors voting thereat, false and fraudulent ballots of a large number, to wit, twenty-one ballots," etc. The third count charges that with hke intent he did, " with the connivance of the election officers holding said election, undertake and assume to count the ballots cast by the electors voting at said election in said election district, and did falsely, fraudulently, maliciously and unlawfully make a false and fraudulent count of said ballots as to make it appear that two hundred and eleven votes were deposited for one Adolph W. Schaick for the office of district attorney, when in truth and in fact he did not receive more than one hundred and eighty-five votes," etc. Some of these offences, perhaps all of them, are indictable under the Act of 1839, and its supplements, when committed by election officers. The defendants were not election officers ; at least, they were not indicted as such. 1 Accord : Walsh v. P., 65 111., 58 (1872).— Ed. '^ Part of the opinion is omitted. 28 Cases on Criminal Law. It must be conceded that offences which strike at the purity and fairness of elections are of a grave character. Are they indict- able at the common law ? This is a serious and at the same time comparatively new question. In considering it, we have little in the way of authority to guide us. It was assumed by the learned counsel for the defendants that an indictment will not lie at common law for such acts. In their printed argument they dismiss the subject with this brief remark : " Offences against the. election laws are unknown to the common law ; they are purely and exclusively of statutory origin." It may safely be admitted that if the question depends upon the fact whether a precise definition of this offence can be found in the text books, or perhaps in the adjudged English cases, the law is with the defendants. This, however, would be a narrow view, and we must look beyond the cases and examine the principles upon which common law offences rest. It is not so much a question whether such offences have been so punished as whether they might have been. What is a common law offence ? The highest authority upon this point is Blackstone. In chap. 13, of vol. 4, of Sharswood's edition, it is thus defined : "The last species of offences which especially affect the Commonwealth are those against the public police or economy. By the public police and economy I mean the due regulation and domestic order of the kingdom, whereby the individuals of the State, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations. This head of offences must therefore be very miscella- neous, as it comprises all such crimes as especially affect pubhc society, and are not comprehended under any of the four preceding series. These amount some of them to felony, and others to mis- demeanors only." The learned author then proceeds to define certain offences of both classes which are among the crimes against the public police or economy. The felonies I will omit. The mis- demeanors are : i. Common or public nuisances, of which a large variety are given, commencing with obstruction to public highways and ending with common scolds. 2. Idleness. 3. Sumptuary laws. 4. Gaming. 5. Destroying game. These, as the text Cases on Criminal Law. 29 shows, are but illustrations. A large number of these and other common law offences are now, and have for many years been regu- lated by statute in England. But in most instances the statute is merely declaratory of the common law, the object being to define the crime with greater accuracy or to increase the punishment. The above quotation from Blackstone is in harmony with other text writers. Bishop, in his work on Criminal Law, vol. i., sects. 358 and 368 (ist ed.) says : " The government requires its subjects to do more than simply abstain from attempting its overthrow. It requires them to give, when called upon, their active assistance to it, and at all times to refrain from casting obstructions in the way of its several departments and functions. Therefore every viola- tion of these duties, being sufficient in magnitude for the law to regard, is criminal. * * * We se'e it to be of the highest import- ance that persons be elected to carry on the government in its' various departments, and that in every case a suitable choice be made. Therefore any act tending to defeat these objects, as forci- bly or unlawfully preventing an election being held, bribing or corruptly influencing an elector, casting more than one vote, is pun- ishable under the criminal common law." Mr. Wharton in his work on Criminal Law, vol. i., sec. 6 (6th ed.), places the giving of more than one vote at an election as among the misdemeanors at common law. The Supreme Judicial Court of Massachusetts in two cases has recognized the same doctrine. The first was Commonwealth v. Silsbee, 9 Mass., 417, which was an indictment charging that the defendant did " wilfully, fraudulently, knowingly and designedly give in more than one vote for the choice of selectmen of the said town of Salem at one time of balloting," etc. After conviction the defendant moved in arrest of judgment that there was no statute covering the offence. It was said by the Court : " There cannot be a doubt that the offence described in the indictment is a mis- demeanor at common law. It is a general principle that where a statute, gives a privilege, and one wilfully violates such privilege, the common law will punish such violation. In town meetings every qualified voter has equal rights, and is entitled to give one vote for every officer to be elected. The person who gives more infringes and violates the rights of other voters, and for this offence the common law gives the indictment." The other case is Com- monwealth V. Hoxey, 16 Mass., 385. The defendant was charged 30 Cases on Criminal Law. with disturbing a town meeting assembled to make choice of town ■officers for the political year then ensuing, and that the said de- fendant, " intending as much as in him lay to prevent the choice of said selectmen according to the will of the electors and to interrupt the freedom of election, unlawfully and disorderly did openly declare that the old selectmen should not be chosen, and attempted repeatedly to take from the box, which contained the ballots of the electors, the votes of the electors," etc. The defend- ant pleaded guilty to the indictment, and moved in arrest of judg- ment ; "because the said indictment purports to be founded upon a statute law of the Commonwealth ; whereas there is no such statute in the State making the facts set forth in the indictment an offence against the Commonwealth ; and because the facts set forth in the indictment do not amount to an offence at common law." The Courts, after admitting there was no statute to meet the case, proceeded to say : " The remaining question is, do the facts charged amount to an offence at common law ? On this question we entertain no doubts. Here was a violent and rude disturbance of the citizens, lawfully assembled in town meeting, and in the actual exercise of their municipal rights and duties. The tendency of the ■defendant's conduct was to a breach of the peace, and to the preven- tion of elections necessary to the orderly government of the town, and due management of its concerns for the year. It is true that the ■common law knows nothing perfectly agreeing with our municipal assemblies. But other meetings are well known and often held in England, the disturbance of which is punishable at common law as a misdemeanor. In this Commonwealth town meetings are recognized in our Constitution and laws ; and the elections made and business transacted by the citizens at those meetings lie at the foundation of our whole civil polity. If then there were no statute prohibiting dis- orderly conduct at such meetings, an indictment for such conduct might be supported." While the Court put this case partly upon the ground that the defendant's conduct tended to a breach of the peace, it is evident the principal reason was the interference with the rights of the electors, which, as the learned judge truly said " lie at the foundation of our civil polity," and it may be safely asserted that every fraud upon the ballot tends directly to a breach of the public peace if not to revolution and civil war. We are of opinion that all such crimes as especially affect Cases on Criminal Law. 31 public society are indictable at common law. The test is not whether precedents can be found in the books, but whether they injuriously •affect the public police and economy. It needs no argument to show that the acts charged in these ndictments are of this character. They are not only offences which affect public society, but they affect it in the gravest manner. An offence against the freedom and purity of elections is a crime against the nation. It strikes at the foundations of republican institutions. Its tendency is to prevent the expression of the will of the people in the choice of rulers, and to weaken the public confidence in elections. When this confidence is once destroyed the end of popular government is not distant. Surely, if a woman's tongue can so far affect the good of society as to demand her punishment as a common scold, an offence which involves the right of a free people to choose their own rulers in the manner pointed out by law is not beneath the dignity of the com- ■mon law, nor beneath its power to punish. The one is an annoy- .ance to a small portion of the body poUtic ; the other shakes the ■social fabric to its foundations. We are of opinion that the offences charged in these indictments are crimes at common law. We regard the principle thus an- nounced as not only sound but salutary. The ingenuity of poli- ticians is such that the offences agaijist the purity of elections are •constantly liable to occur which are not specifically covered by statute. It would be a reproach to the law were it powerless to punish them. It follows from what has been said that it was error to quash the indictments. The judgment is reversed in each case, and a procedendo awarded. 32 Cases on Criminal Law. STATE V. DOUD. Supreme Court of Connecticut, 1829. 7 Connecticut, 385. Peters, J.^ By the common law, all immoral acts, which tend to the prejudice of the community, are offences, and pun- ishable by courts of justice. They are denominated crimes and misdemeanors. The former comprehend the more aggravated offences, which are nearly allied and equal in guilt to felony, whereof the superior court formerly assumed jurisdiction ; the latter, in- ferior offences, whereof the superior and inferior courts have occa- sionally taken cognizance. But now, by statute, the Superior Court alone has jurisdiction of all offences at common law. Stat. 29. ed. 1784; 172 : ed. 1821 ; 191 ; Sess. 1828; Knowles v. State, 3 Day 103; 2 Swift's Syst. 366, Swift's Dig. 257; State v. Howard, i Com. Rep. 475; Rex v. Higgins 2 East 5. By the ancient common law, prison breaches were felonies, if the party were lawfully imprisoned, for any cause whatever, whether civil or criminal, and whether he were actually within the walls of a prison, or in the stocks, or in the custody of a person who had lawfully arrested him. 2 Hawk. P. C, c. 18. s. i. And it hath been holden, by all the judges of the King's Bench, that though a prisoner departs from prison, with the keeper's license, it is an offence punishable as well in the prisoner as in the keeper. Hobert and Stroud's case, Cro. Car. 209. The same doctrine is laid down by Sir William Blackstone, 4 Com. 129; and it is sanc- tioned by the late Ch. J. Swift, 2 Sw. Dig. 325. The escape of a person lawfully arrested, by eluding the vigilance of his keepers, before he is put in hold or in prison, is an offence against public justice ; and the party himself is punishable by fine and imprison- ment. For however strong the natural desire of liberty may be, yet every man is bound to submit himself to the restraints of the law. 2. Sw. Dig., 325, 4 Bla. Com., 129. I am, therefore, of opinion, that the information is sufficient ; and as the prisoner is not charged with breaking the prison, or any other actual violence, in effecting his escape, I advise, that he ^ The opinion only is printed. Cases on Criminal Law. 33 be subjected to the usual common law punishment, fine and im- prisonment, one or both, at the discretion of the Superior Court, not exceeding the punishment from which he escaped. The other Judges were of the same opinion, Williams, J. in- timating some doubts. Information sufficient} SECTION III. OFFENCES AGAINST THE LAW OF NATIONS. RESPUBLICA V. De LONGCHAMPS. Oyer and Terminer of Philadelphia, 1784. I Dallas, III. McKean, Chief Justice.^ Charles-Julian De Longchamps: — You have been indicted for unlawfully and violently threatening and menacing bodily harm and violence to the person of the Honorable Francis-Barbe de Marbois, Secretary to the Legation from France, and Consul General of France to the United States of America, in the mansion house of the Minister Plenipotentiary of France ; and for an assault and battery committed upon the ^ Accord : Disobeying an order of a justice, Rex v. Gilkes, 3 Car. and P., 52 (1827); rescue, St. v. Murray, 15 Me., 100(1838); refusal to assist officer, Comfort v. C, 5 Whart., 437 (1840); preventing attendance of witness or juror, SL v. C^penter, 20 Vt., 9 (1847); refusing to accept office. Attorney General v. Read, '2 Mod., 299 (1678) ; but see St. v. McEntyre, 3 Ire., 171 (1842). — Ed. ^ Part of this case is omitted. Other offences against public justice are : Barratry. "Abarrater is a common mover, exciter, or maintainer of suits or quarrels, either in court, or in the country." Hawk, P. C. (Curw. ed.) 474; see C. V. M'Culloch, 15 Mass., 227 (18 18). Maintenance. "An unlawful taking in hand, or upholding of quarrels or sides, to the disturbance or hindrance of common right." Hawk, P. C. (Curw." ed.), 454; see Key v. Vattier, i Ohio, 132 (1823). Champerty. "The unlawful maintenance of a suit, in consideration of sonie bargain to have part of the thing in dispute, or some, profit out of it.'- Hawk, P. C. (Curw. ed.), 463; see Thompson v. Reynolds, 73 111., 11 (1874) 34 Cases on Criminal Law. said secretary and consul, in a public street in the city of Philadel- phia. To this indictment you have pleaded that you were not guilty, and for trial put yourself upon the country. An unbiased jury, upon a fair trial and clear evidence, have found you guilty. The first crime in the indictment is an infraction of the law of nations. This law, in its full extent, is part of the law of this State, and is to be collected from the practice of different nations, and the authority of writers. The person of a public minister is sacred and inviolable. Whoever offers any violence to him not only affronts the sovereign he represents, but also hurts the common safety and well-being of nations ; he is guilty of a crime against the whole world. All the reasons which establish the independency and inviola- biUty of the person of a minister, apply likewise to secure the immunities of his house. It is to be defended from all outrage ; it is under a peculiar protection of the laws. To invade its freedom is a crime against the State and all other nations. The comites of a minister, or those of his train, partake also of his inviolability. The independency of a minister extends to all his household. These are so connected with him, that they enjoy his privileges and follow his fate. The secretary to the embassy has his commission from the sovereign himself. He is the most distinguished character in the suite of a public minister, and is in some instances considered as a kind of public minister himself. Is it not, then, an extraordinary insult to use threats of bodily harm to his person in the domicile of the minister plenipo- tentiary? If this is tolerated, his freedom of conduct is taken away, the business of his sovereign cannot be transacted, and his dignity and grandeur will be tarnished. You, then, have been guilty of an atrocious viloation of the law of nations ; you have grossly insulted gentlemen, the peculiar objects of this law (gentlemen of amiable characters, and highly esteemed by the government of this State) in a most wanton and unprovoked manner. And it is now the interest as well as duty of the government to animadvert upon your conduct with a becoming severity — such a severity as may tend to reform yourself, to deter others from the commission of the like crime, preserve the honor of the State, and maintain peace with our great and good ally, and the whole world. Cases on Criminal Law. 35 A wrong opinion has been entertained concerning the conduct of Lord Chief Justice Holt and the Court of King's Bench, in England, in the noted case of the Russian Ambassador. They detained the offenders, after conviction, in prison, from term to term, until the Czar Peter was satisfied, without ever proceeding to judgment ; and from this it has been inferred that the Court doubted whether they could inflict any punishment for an infraction of the law of nations. But this was not the reason. The Court never doubted that the law of nations formed a part of the law of England, and that a violation of this general law could be punished by them ; but no punishment less than death would have been thought by the Czar an adequate reparation for the arrest of his ambassador. This punishment they could not inflict, and such a sentence as they could have given, he might have thought a fresh insult. Another expedient was therefore fallen upon. However, the princes of the world, at this day, are more enlightened, and do not require impracticable nor unreasonable reparations for injuries of this kind. The second offence charged in the indictment, namely, the assault and battery, needs no observations. Upon the whole, the Court, after a most attentive considera- tion of every circumstance in this case, do award, and direct me to pronounce the following sentence : That you pay a fine of one hundred French crowns to the commonwealth ; that you be imprisoned until the fourth day of July, 1786, which will make a little more than two years imprison- ment in the whole ; that you then give good security to keep the peace, and be of good behavior to all public ministers, secretaries to embassies, and consuls, as well as to all the liege people of Pennsylvania, for the space of seven years, by entering into a recognizance, yourself in a thousand pounds, and two securities in five hundred pounds each ; that you pay the costs of this prosecution, and remain committed until this sentence be complied with. 36 Cases on Criminal Law. SECTION IV. OFFENCES AGAINST RELIGION. PEOPLE V. RUGGLES. Supreme Court of New York, iSii. 8 Johnson, 290. Kent, Ch. J.' delivered the opinion of the Court. The offence charged is, that the defendant below did " wickedly, maliqiously,^ and blasphemously utter, in the presence and hearing of divers- good iand Christian people, these false, feigned, scandalous, ma- licious, wicked and blasphemous words, to wit : ' Jesus Christ was a bastard, and his mother must be a whore ; ' " (and the single question is, whether this be a public offence by the law of the land). After conviction, we must intend that these words were uttered in a wanton manner, and, as they evidently import, with a wicked and malicious disposition, and not in a serious discussiprk upon any controverted point in religion. The language was blas- phemous not only in a popular, but in a legal sense; for blas- phemy, according to the most precise definitions, consists in inaliciously reviling God, or religion, arid this was reviling Christi- anity through its author. Emlyn's Preface to the State Trials, p. 8. See,' also, Whitlock's Speech, State Trials, vol. 2. 273. The jury have piassed upon the intent or quo animo, and if those words spoken, in any case, will amount to a misdemeanor the indictment is good. Such words, uttered with siich a disposition, were an offence at common law. In Taylor's case, i Vent. 293. 3 Keb. 607; Tre- maine's Pleas of the Crown, 226. S. C. the defendant was convicted upon information of speaking similar words, and the court of K. B. said that Christianity was parcel of the law, and to cast contumelious reproaches upon it, tended to weaken the foundation of moral ob- ligation, and the efficacy of oaths. And in the case of Rex v, 1 Indictment and argument of counsel are omitted. Cases on Criminal Law. 37 Woolston, Str. 834. Fitzg. 64, on a like conviction, the court said they would not suffer it to be debated whether defaming Chris- tianity in general was not an offence at common law, for that what- ever strikes at the root of Christianity, tends manifestly to the dissolution of civil government. But the court were careful to say, that they did not intend to include disputes between learned men upon particular controverted points. The same doctrine was laid down in the late case of The King v. Williams, for the publication of Paine's " Age of Reason," which was tried before Lord Ken- yon, in July, 1 797. The authorities show that blasphemy against God, and contumelious reproaches and profane ridicule of Christ or the Holy Scriptures (which are equally treated as blasphemy), are offences punishable at common law, whether uttered by words or writings. Taylor's case, i Vent. 293; 4 Blacks. Com. 59; i Hawk., b. 1. c. 5; I East's P. C. 3; Tremaine's Entries, 225; Rex. v. Doyley. The consequences may be less extensively pernicious in the one case than in the other, but in both instances, the reviling is an offence, because it tends to corrupt the morals of the people, and to destroy good order. Such offences have always been con- sidered independent of any religious establishment or the rights of the church. They are treated as affecting the essential interests of civil society. And why should not the language contained in the indictment be still an offence with us ? There is nothing in our manners or institutions which has prevented the application or the necessity of this part of the common law. We stand equally in need, now as formerly, of all that moral discipline, and of those principles of virtue, which help to bind society together. The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice ; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. Nothing could be more offensive to the virtuous part of the community, or more injurious to the tender morals of the young, than to declare such profanity lawful. It would go to confound all distinction between things .sacred and profane ; for, to use the words of one of the greatest oracles of human wisdom, " profane scoffing doth by little and little deface 38 Cases on Criminal Law. the reverence for religion ;" and who adds, in another place, " two principle causes have I ever known of atheism — curious contro- versies and profane scoffing." Lord Bacon's Works, vol. 2. 291. 503. Things which corrupt moral sentiment, as obscene actions, prints and writings, and even gross instances of seduction, have, upon the same principle, been held indictable ; and shall we form an exception in these particulars to the rest of the civihzed world? No government among any of the polished nations of antiquity, and none of the institutions of modern Europe (a single and mon- itory case excepted) ever hazarded such a bold experiment upon the solidity of the public morals, as to permit with impunity, and under sanction of their tribunals, the general religion of the com- munity to be openly insulted and defamed. The very idea of juris- prudence with the ancient lawgivers and philosophers, embraced the religion of the country. Jurisprudentia est divinarum atque hu- manarum rerum notitia. Dig. b. I. 10. 2. Cic. De Legibus, b. 2, passim. The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured ; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community, is an abuse of that right. Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indis- criminately the like attacks upon the religion of Mahomet or of the grand Lama ; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those imposters. Besides, the offence is crimen malitice, and the imputation of malice could not be inferred from any invec- tives upon superstitions equally false and unknown. We are not to be restrained from animadversion upon offences against public decency, like those committed by Sir Charles Sedley, i Sid. 168, or by one Rollo, Sayer, 158, merely because there may be savage tribes, and perhaps semi-barbarous nations, whose sense of shame would not be affected by what we should consider the most auda- cious outrages upon decorum. It is sufficient that the common law checks upon words and actions, dangerous to the public welfare, apply to our case, and are suited to the condition of this and every Cases on Criminal Law. 39 other people whose manners are refined, and whose morals have been elevated and inspired with a more enlarged benevolence, by means of the Christian religion. Though the constitution has discarded religious establishments, it does not forbid judicial cognizance of those offences against religion and morality which have no reference to any such estab- lishment, or to any particular form of government, but are punish- able because they strike at the root of moral obligation, and weaken the security of the social ties. The object of the 38th article of the constitution, was, to " guard against spiritual oppression and intol- erance," by declaring that " the free exercise and enjoyment of religious profession and worship, without discrimination or prefer- ence, should for ever thereafter be allowed within this State, to all mankind." This declaration (noble and magnanimous as it is, when duly understood), never meant to withdraw religion in general, and with it the best sanctions of moral and social obligation from all consideration and notice of the law. It will be fully satisfied by a free and universal toleration, without any of the tests, disabilities, or discriminations, incident to a religious establishment. To con- strue it as breaking down the common law barriers against licen- tious, wanton, and impious attacks upon Christianity itself, would be an enormous perversion of its meaning. The proviso guards the article from such dangerous latitude of construction, when it de- clares, that " the liberty of conscience hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of this State." The preamble and this proviso are a species of commentary upon the meaning of the article, and they sufficiently show that the framers of the con- stitution intended only to banish test oaths, disabilities and the bur- dens, and sometimes the oppressions, of church establishments; and to secure to the people of this State, freedom from coercion, and an equality of right on the subject of religion. This was no doubt the con- summation of their wishes. It was all that reasonable minds could re- quire, and it had long been a favorite object, on both sides of the Atlantic, with some of the most enlightened friends to the rights of mankind, whose indignation had been roused by infringments of the liberty of conscience, and whose zeal was inflamed in the pur- suit of its enjoyment That this was the meaning of the constitu- tion is further confirmed by a paragraph in a preceding article, 40 Cases on Criminal Law. which specially provides that " su.ch parts of the common law as might be construed to establish or maintain any particular denomi- nation of Christians or their ministers," were thereby abrogated. The legislative exposition of the constitution is conformable to this view of it. Christianity, in its enlarged sense, as a religion revealed and taught in the Bible, is not unknown to our law. The statute for preventing immorality. Laws, vol. i. 224, R. S. 675, s, 69, et seq. consecrates the first day of the week, as holy time, and considers the violation of it as immoral This was only the continua- tion, in substance, of a law of the colony which declared, that the profanation of the Lord's day was " the great scandal of the Chris- tian faith." The act concerning oaths. Laws, vol. i. p. 405. 2 R. S. 407, s. 82, recognizes the common law mode of administer- ing an oath, " by laying the hand on and kissing the gospels." Surely, then, we are bound to conclude, that wicked and malicious words, writings and actions which go to vilify those gospels, con- tinue as at common law, to bean offence against the public peace and safety. They are inconsistent with the reverence due to the administration of an oath, and among their other evil consequences, they tend to lessen in the public mind, its religious sanction. The court are accordingly of opinion that the judgment below must be affirmed. Judgment affirmed} 1 Accord . Updegraph v. C, 11 S. and R., 394(1824). See also, dis- tiirbing religious meeting, St. v. Jasper, 4 Dev., 323 (1833). — Ed. Cases on Criminal Law. 41 SECTION V. OFFENCES AGAINST PUBLIC PEACE. REX V. SUMMERS. King's Bench, 1701. 3 Salkeld, 194. The defendant was indicted at the sessions, for writing a scan- dalous letter to one Mellith concerning a young woman whom he intended to marry. Upon not guilty pleaded, he was found guilty ; and afterwards he brought a writ of error, and the error assigned was, that this was a private letter, for which he was not pun- ishable by way of indictment ; or, if an indictment would lie, yet not before the justices of the peace at their sessions. Sect per curiam, this is an offence, and indictable before the justices in ses- .sions, because it tends to the breach of the peace.' COMMONWEALTH v. HAINES. Supreme Court of Pennsylvania, 1824. 4 Clark, 17. This was a case removed by certiorari to the Supreme Court from the Mayor's Court of Philadelphia, and tried before Gibson, J., at Nisi Prius, in September, 1824. The first count of the indictment charged that the defendant, devising and intending to raise and create riots, etc., with the usual averments, " unlawfully, wickedly and maliciously incited, encour- aged and endeavored to provoke and instigate divers good citizens of the Commonwealth, whose names are to said inquest unknown," etc., "to assemble and gather together to disturb the peace of the ^Accord.; sending challenge, Rex w. Phillips, 6 East., 464 (1805). — Ed. 42 Cases on Criminal Law. Commonwealth, and to injure and annoy said citizens, etc., and that for that purpose, he, the said defendant, then and there erecting^ and fixing a certain figure, resembling a man, commonly called a Paddy, as and for the effigy of St. Patrick, and by these means, etc., did collect together a large number of citizens, who behaved riotously for a long space of time," etc. The remaining counts were for attempts to produce riot generally, without specifying the means. It appeared from the evidence, that some time between dusk and ii o'clock on the i6th of March, 1824, a stuffed Paddy, with the accompaniment of a rum bottle and a string of potatoes, was suspended to a tree near the junction of Second street and Germantown road, in the district of Kensington, a neighborhood inhabited principally by emigrants from Ireland. The figure remained in this position until the next morning, when it was removed to prevent a disturbance, which seemed likely to ensue. The defendant, an inn-keeper residing in that district, was proved by several witnesses to have been in his house during the whole of the evening on which the Paddy was erected ; and a great deal of conflicting evidence was produced, which made his agency in the affair very questionable. The averment in the indictment that the figure was intended as an effigy of St. Patrick, and was meant and well calculated to excite the angry feelings of the immediate popu- lation, was fully supported. It was proved also, beyond contest, that the defendant was concerned in the exhibition on the 1 8th of March, of a female figure, commonly called a Shelah, but with several features, beside that of sex, distinguishing it from a Paddy. Some evidence was offered to show, also, that while the exhibition of a Paddy was resented as an insult upon the Catholic portion of the Irish, a Shelah was often displayed as a retaliatory emblem, and may have been so meant in the present case. A tumult ensued, the insult being spiritedly resented, and the neighborhood was thrown into confusion thereby for several succeeding weeks. The defendant, it was conceded, was clearly connected with the Shelah, though his instrumentality in the Paddy was controverted. The jury having been addressed by Randall and Kittera for the prosecution, and Biddle and D. P. Brown for the defence, were charged substantially as follows, by Gibson, J. The offence specified in the first count, is clearly indictable at common law. No man has a right to trifle with the Cases on Criminal Law. 43 feelings of any large class of men, so as to provoke them to a breach of the peace. If it is done by libel, no one doubts it is a misdemeanor ; if it is done by effigy is it less so ? Suppose the defendant had published a picture of the same character, and with the same tendency as the figure which is the subject of the present offence, would it not be held a libel ? The gist of the offence is its tendency to provoke a breach of the peace. It may be indis- creet in the Irish residents of the district to take notice of acts of the kind, but it is worse than indiscreet in others to provoke them to do so. The facts are with you exclusively ; if you believe the allegation of the indictment to be supported by the evidence, you will be bound to convict. The jury, after an absence of some hours, came into court with the inquiry whether the allegation in the indictment that a Paddy had been exhibited was supported by evidence of the exhi- bition of a Shelah. The Court answered in effect, that, if the characteristics and object of the Shelah were different from those of the Paddy, the variance was fatal ; but that the question of the identity or dissimilarity of the two was for the jury. A verdict of acquittal was subsequently rendered. Other acts indictable at common law as against the public peace, are : Riot, which is defined to be, "A tumultuous disturbance of the peace, by three persons or more assembling together of their own authority, with an intent mutually to assist one another against any one who shall oppose them, in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful. ' ' I Hawk., P. C. (Curw., ed.) 513. See Reg. v. Cunninghame, 16 Cox., C. C. 420, (1888). Unlawful Assembly : ' • Any meeting whatsoever of great numbers of people, with such circumstances of terror as cannot but endanger the public peace, and raise fears and jealousies among the king's subjects." I Hawk., P. C.(Curw., ed.) c. 28, p. 516. See Reg. v. Vincent, 9 Car. and P., 91 (1839). Affray ; "The fighting of two or more persons in some public place, to the terror of his Majesty's subjects." IVBl. Com., 145. See St. z/. Sumner, 5 Strob. 53 (1850). 44 Cases on Criminal Law. COMMONWEALTH v. TAYLOR. Supreme Court of Pennsylvania, 1812. 5 Binney, 277. The defendant was indicted in the Quarter Sessions of Frank- lin county for "that he, on the 24th of August, 1809, about the hour of ten of the clock in the night of the same day, with force and arms, at Lurgan township, in the county aforesaid, the dwell- ing house of James Strain there situate, unlawfully, maliciously and secretly did break and enter, with intent to disturb the peace of the Commonwealth ; and so being in the said dwelling house, unlawfully, vehemently, and turbulently did make a great noise, in disturbance of the peace of the Commonwealth, and greatly misbehave himself in the said dwelling house ; and Elizabeth Strain, the wife of the said James, greatly did frighten , and alarm, by means of which said fright and alarm she, the said Elizabeth, being then and there pregnant, did on the 7th day of September, in the year aforesaid, at the county aforesaid, miscarry, and other wrongs to the said Elizabeth then and there did, to the evil example, &c.'' The jury having found the defendant guilty, the Quarter Ses- sions arrested the judgment, upon the ground that the offence charged was not indictable ; and the record was brought up to this Court by writ of error; Tilghman, C. J. It is contended on the part of James Taylor, that the matter charged in the indictment is no more than a private trespass, and not an offence subject to a criminal prosecu- tion. On the other hand it has been urged for the Commonwealth that the offence is indictable ; ist, as a forcible entry ; 2nd, as a malicious mischief. I. I incline to the opinion that the matter charged in the indictment does not constitute a forcible entry, although no doubt a forcible entry is indictable at common law. There must be actual force to make an indictable offence. The bare allegation of its being done with force and arms does not seem to be sufficient, for every trespass is said to be with force and arms. In the King v. Storr, 3 Burr, 1698, the indictment was for unlawfully entering his yard and digging the ground and erecting a shed, and Cases on Criminal Law. 45 unlawfully and with force and arms putting out and expelling one Mr. Sweet, the owner, from the possession and keeping him out of the possession. This indictment was quashed. The King v. Blake and fifteen others, 3 Burr, 1 731, was an indictment for breaking and entering with force and arms, a close (not a dwelling house), and unlawfully and unjustly expelling the prosecutors, and keeping them out of possession. This also was quashed, and the rule laid down by all the court was, that there must be force or violence shown upon the face of the indictment, as some riot or unlawful assembly. It appears indeed, that in the King z/. Bathurst, cited and remarked on by the judges in the King v. Storr, the Court laid considerable stress on the circumstance of entering a dwelling house. We have no report of that case, but Lord Mans- field's observation on it 3 Burr, 1701 is, that it does not seem to him to lay down any such rule as that force and arms alone implies such force as will of itself support an indictment. "There," says he, "the fact itself naturally implied force; it was turning and keeping the man out of his dwelling house, and done by three people." In the case before us, there is the less reason to suppose actual force, as the entry is charged to have been made secretly. This might have been done through a door which was open, and yet in point of law it was a breaking and entry with force and arms, which is the allegation in evefy action of trespass. 2. But supposing the indictment not to be good for a forcible entry, may it not be supported on other grounds ? In the case of the Commonwealth v. Teischer, i Dall., 335, judgment was given against the defendant for " maliciously, wilfully and wickedly kill- ing a horse." These are the words of the indictment, and it seems to have been conceded by Mr. Sergeant, the counsel for the defendant, that if it had been laid to be done secretly, the indict- ment would have been good. Here the entering of the house is laid to be done " secretly, maliciously, and with an attempt to disturb the peace of the Commonwealth." I do not find any precise line by which indictments for malicious mischief are separated from actions of trespass. But whether the malice, the mischief, or the evil example is considered, the case before us seems full as strong as Teischer's case. There is another principle, however, upon which it appears to me that the indictment may be supported. It is not necessary that there should be actual force or violence to constitute 46 Cases on Criminal Law. an indictable offence. Acts injurious to private persons, which tend to excite violent resentment, and thus produce fighting and dis- turbance of the peace of society, are themselves indictable. To send a challenge to fight a duel is indictable, because it tends directly towards a breach of the peace. Libels fall within the same reason. A libel even of a deceased person, is an offence against the public, because it may stir up the passions of the living and produce acts of revenge. Now, what could be more likely to produce violent passion and a disturbance of the peace of society, than the conduct of the defendant. He enters secretly after night into a private dwelling house with an intent to dis- turb the family, and after entering makes such a noise as to terrify the mistress of the house to such a degree as to cause a miscarriage. Was not this enough to produce some act of desperate violence on the part of the master or servants of the family ? It is objected that the kind of noise is not described. No matter ; it is said to have been made vehemently and turbulently, and its effects on the pregnant woman are described. In the case of the King v. Hood (Sayers' Rep. in K. B., 161), the Court refused to quash an indictment for disturbing a family by violently knocking at the front door of the house for the space of two hours. It is impossible to find precedents for all offences. The malicious ingenuity of mankind is constantly producing new inventions in the art of dis- turbing their neighbors. To this invention must be opposed general principles calculated to meet and punish them. I am of opinion that the conduct of the defendant falls within the range of estab- lished principles, and that the judgment of the Court below should be reversed. * ' Concurring opinions of Yeates and Brackenridge, JJ. are omitted. Accord.; Henderson v. C, 8 Gratt, 708 (1852). Cf. C. V. Edwards, i Ash., 46 (1823); C. v. Wing, 9 Pick., i (1829); Kilpatrick v. P., 5 Denio, 277 (1848); St. v. Schlottman, 52 Mo., 164 (1873)-— Ed. Cases on Criminal Law. 47 COMMONWEALTH v. CRAMER. Court of Quarter Sessions of Dauphin, 1870. 2 Pearson (Pa.), 441. By The Court. The defendant was charged under the I S4th section of the Penal Code with having wilfully and maliciously- maimed, disfigured and wounded a steer, the property of Jonas C. Brinzer, and having been convicted at the last sessions, a motion was made for a new trial on account of misdirection in the charge of the Court, and also in arrest of judgment. There is no ground whatever for arresting the judgment, as the indictment is good on its face. The only question is, was it properly supported by the evidence, and was the jury rightly instructed as to the law of the case? It was proved on the trial that at the time of the injury the steer was trespassing on the enclosed grounds of the defendant ; had repeatedly jumped into his cornfield, and was destroying his corn; that he was verj' troublesome, addicted to jumping, and, what might be called in common parlance "very breachy." The defendant shot him many times with a gun heavily loaded with shot, at one time wrapping up the charge and hitting him so severely that he fell to his knees, but was able to run off and again jump the fence, which was low and not in good order. The steer was neither maimed nor disfigured, but was pretty severely "wounded" by the shots, and greatly fell away in flesh. The Court instructed the jury that the evidence did not bring the case within the statute, but if he was wounded as charged in the indict- ment, it was a crime at common law, although concluding contra forma statuti. The only question of any difficulty was whether the act must be done out of malice towards the owner, or malice and passion against the animal. There was no pretence that there was any malice towards the owner in this case, as the parties were comparative strangers to each other and lived many miles apart. The prosecutor's cattle were pasturing on an adjoining farm to the defendant. It is a little difficult to ascertain precisely what amounts to malicious mischief by the common law. Blackstone, in his Com- mentaries, Vol. 4, says: " The act must be done either out of a 48 Cases on Criminal Law. spirit of wanton cruelty, or black and diabolical revenge." One reason why we find so little on the subject in the English writers on criminal jurisprudence tending to show what amounted to this crime at common law, is that almost every possible injury to prop- erty was punished by statutes, and the indictments have generally, and perhaps always, for the last two hundred years, been preferred under some one of the various acts of Parliament. It may be con- ceded that in England it is settled that the offence must be committed out of malice towards the owner of the injured property, unless, per- haps, in cases of great and wanton cruelty towards domestic animals. Even under their statutes it is held that there must be malice towards- the owner. The worst acts of cruelty committed through passion against the animal are not punished criminally. In this State, and perhaps in many others, our laws have been construed differently. When our various acts passed to protect property of any kind speak of malicious and wilful injury thereto, we are justifiable in saying that it applies to the forbidden act, whether done out of malice toward the owner, or through a spirit of wanton mischief, especially if accompanied with cruelty. Where malice is thus mentioned, it does not mean hatred or ill-will, but imports an evil disposition in general, a heart regardless of social duty. Our code is full of provisions protecting inanimate objects, as well as animate, and we hold that they are equally protected from wanton mischief, or from injury or destruction out of malice towards the owner. Wharton, our best writer on criminal law in this State, says, in vol. 2, at p. 2002 : ", Malicious mischief in this country as a common law offence has received a far more extended interpretation than has been attached to it in England.", He defines it to be "any malicious or mischievous injury, either to the rights of another or those of the public, in general." In 3 Cushing, 558, it is said "the jury must be satisfied that the injury was done either out of a spirit of wanton cruelty or of wicked revenge." In Massachu- setts the distinction seems, to be taken between injuries done to animate and inanimate objects ; in the latter there must be malice towards the owner, whilst in the former wanton cruelty is crimi- nally punishable. It was held in that State to be indictable to poison cattle, i Mass., R., 59. The subject has undergone considerable examination in the State of New York. Jn 5 Cowen, 218, "it is held tp be indict- Cases on Criminal Law. 49' able to maliciously, wickedly and wilfully kill a cow." The Court speaks of the act being one of wanton cruelty, and that it cannot be expected that a mind so depraved will tie restrained by a mere liability to pay damages. The perpetrator may be insolvent, and thus gratify his malice with impunity, if there is no redress other than by civil action. The object is to protect the citizen in his right by restraining and punishing the wrongdoer. Such acts discover a degree of moral turpitude dangerous to society, and for its security ought to. be punishable criminally. It is an evil example of the most pernicious tendency, inasmuch as the act is an outrage upon the principles and feelings of humanity. In 19 Wend., 419, it was held to be indictable to wilfully, wickedly and secretly break up a cutter, and 5 Cowen, 258, is cited with approbation. The judge, after stating that in many courts it had been held that such offences were not indictable, says he " is happy to find that the weight of authority is the other way." "To say that it was not so would be a sad exception to the general wisdom of the common law." At an after time the courts of that State decided in 5 Denio, 277, that it was not indictable at common law to maliciously break the windows of another's dwelling. If done secretly, it might be otherwise; at the same time the Court con- siders that a criminal prosecution might be sustained for maliciously kiUing or wounding domestic animals, as that shows depravity of mind and cruelty of disposition, and the cases in i Dallas, 335, and 5 Birtn. are spoken of with approbation, also that already cited from 5 Coweri. In I Aikin, Vt. R., 226, an indictment was sustained for cut- ting, maiming and destroying colts. The judge says : " When the most wanton cruelty to the beast is the grievance, we may pass by the civil injury and treat the deed as a misdemeanor at common law. With force and arms to injure the property of another is a civil injury, for which the owner of the property may have his action of trespass. But the wounding and torturing a living animal, not only with force and arms, but with all the malicious and wicked motives and intentions set forth in this indictment, is a misdemeanor to be prosecuted by the judges." This case appears afterwards to have been disregarded and overruled in that State, but in our opinion is good law and sound morals. In Pennsylvania we have perhaps gone further than in any 50 Cases on Criminal Law. other State in punishing malicious mischief. As early as 1788, in Teischer's case, i Dal., 335, it was held indictable to mahciously, wilfully and wickedly kill a horse, and McKean, Ch. J., says, whatever amounts to a public wrong may be made the subject of an indictment. The poisoning of chickens, cheating with false dice, fraudulently tearing a promissory note, and many other offences of a similar description have heretofore been indicted. Breaking windows by throwing stones at them, embezzling public money, so for maliciously killing a dog, for writing threatening letters to obtain money, 2 Dal., 297 ; girdling a tree growing on pubhc ground, 2 Brown, 249 ; so to enter the house of another, make a great noise, and disturb and alarm the family, 5 Binn. ; to be guilty of wanton cruelty to animals in general, 2 W. C. C. R., 259 ; to put cQwitch on a towel to injure a person about to use it, 1st W. C. C. R., 490 ; to cut off the hair from the mane or tail of a horse, 2 Humphreys, 39 ; to discharge a gun with intent to dis- turb a sick person, 9 Pick., i ; so to destroy a line tree or other landmark ; to set fire to a number of barrels of tar belonging to another ; so to cast the carcass of a dead animal into a well in daily use, 8 New Hamp., 208. Most of these cases are cited in 2 Wharton's C. L., p. 2003. We have known convictions to be had in different Courts of Quarter Sessions in this State for various other offences, which in England would only be punished by civil suit, except when a criminal remedy is given by statute, as cutting off the young trees growing in a nursery ; girdling fruit trees ; throwing a dead porcupine into a well ; breaking up the kettles in a sugar camp, and splitting the sugar troughs ; throwing down a man's fences in the night and turning a drove of cattle into his wheat ; placing gunpowder in a log of stove wood, by which the stove was blown up ; plastering a number of doors with tar through mere wanton mischief ; cutting to pieces and destroying the melons growing in a large patch ; breaking to pieces a number of grindstones standing at a store door for sale,, through mere wantonness, and not out of malice towards the owner ; cutting in pieces the curtains and cushions of a carriage ; burning a pile of rails, also piles of cordwood intended for coaling ; setting fire to a haystack ; cutting down a mill dam ; opening the sluice in a mill- race for wanton mischief, and turning the water over the owner's meadow, by which the partially made hay was destroyed ; tying Cases on Criminal Law. 51 shingles to a horse's tail, by which he was greatly frightened and ran until so injured as to be useless to the owner, though in the case the horse was trespassng. Judge Lewis, in his work on criminal law, p. 305, says : " Whatever amounts to a public wrong may be made the subject of indictment ; " and in addition to many instances already stated, gives that of furiously driving through the streets of a crowded city ; so contemptuously tearing down and refusing to replace an advertisement of a public subject ; so maliciously cutting down timber trees with intent to injure the owner is indictable at common law, independent of the statute ; breaking down and defacing tomb- stones in a graveyard ; also covering a dog with spirits of turpen- tine and setting the animal on fire, through a spirit of wanton mischief. Many other cases of conviction of like offences may be cited. We may therefore fairly assume that, although acts'of this character described, when not done out of malice towards the owner of the property, are not the object of a criminal prosecution in England and many of our sister States, are by almost universal understanding and consent made so in Pennsylvania. It has become part of our common law, and is highly conducive to public morals and beneficial to society. The acts are evidence of wanton cruelty, a spirit of mischief, or of black revenge, according to their nature and character, are indications of the mala mens and evil disposition in general, and are punishable by the criminal law. In the case before us the owner of the cornfield could have had ample redress for the injury done by the steer had he pro- ceeded under the law relating to estrays or by an action against the owner. Instead of pursuing a legal remedy he resorted to acts of barbarity, which are themselves evidence of malice. Although we may, in pronouncing sentence, take into consideration the provocation to anger by the trespasses of the animal, yet we can- not avoid imposing some punishment on the defendant for his violation of the criminal law. It is very seriously contended that this code was intended to embrace all criminal offences, and thus abrogate the common law, We should be sorry so to decide, as thereby a vast many crimes most injurious to society would go unpunished. This code does not embrace one-half of the crimes known to the law. Besides the statute is inflexible and unbending, whilst the common law adapts 52 Cases on Criminal Law. itself to the new devices of mankind to injure society, and punishes-- them as they arise. It is further insisted that the 48th and 63d sections were intended to cover every case of malicious injury, and that this case does come within the 48th section, thoughi not properly described as being done "wantonly and cruelly." We are of opinion that section was intended to cover a different- class of cases, and the 163rd section as reported would have embraced this ; but its symmetry was marred by the legislature in leaving out the word " wounding," as inserted by the commis- sioners. That leaves the common law in force in cases of wounding as it stood prior to the formation of the code. Concluding contra forma statuti is unimportant, as it has been settled for more than half a century that such words are surplusage merely where the offence existed at common law. The motion for a new trial is overruled. SECTION VI. OFFENCES AGAINST PUBLIC HEALTH. REX V. TAYLOR, King's Bench, 1742. 2 strange, 1 167. The Court granted an information against him as for a nui- sance, on affidavits of his keeping great quantities of gunpowder, to the endangering the church and houses where he lived.^ 1 Accord: Reg. z/. Lister, Dears. & B., 209(1856). [Cf. P. v. Sands, I Johns, 78 (1806.)]. Obstructing navigable river, St. v. Thompson, 2 Strob., 12 (1847); obstructing highway, Reading v.C, \\ Pa„ 196 (1849); main- taining slaughter house near dwelling, Moses v. St 58 Ind., 185 (1877). Ed. Cases on Criminal Law. 53 REX V. VANTANDILLO. King's Bench, 181 5. 4 Maule &^ Selwyn, 73. The defendant was indicted for carrying her child while anfected with the small pox along a public highway. Owen moved in arrest of judgment, that this was an indictment of the first impression. He observed, that the defendant was not indicted for inoculating, or causing the child to be inoculated with an infectious disease ; for it is not stated how the child came by it. .And it is consistent with this indictment that the child might have ^caught the disease; and supposing it had, might not the mother carry lit through the street in order to procure medical advice without Jjeing subject to be indicted for it ? Therefore the indictment ought to have shown that the act was unlawful ; and ought also to have -alleged that there was some sore upon the child at the time when it was so carried, by analogy to the writ " de leproso amovendo," which, it seems, lay only for those who appeared to the sight of all men by their voice and sores to be lepers, and not for those infected with the disease, but not outwardly in their bodies. See Fitz., N. B. 534. And if the merely alleging that the disorder is infectious and dangerous to the subjects, be sufficient, there is a multitude of diseases of which the same may be predicated, and consequently the patient during the continuance of any such disease must never go abroad at all ; so difficult will it be to draw the line. The only offences against the public health of which Hawkins speaks, •are spreading the plague and neglecting quarantine. Hawk., P. C. -c. 52, 53 ; and Lord Hardwicke, it appears, thought the building of ^ house for the reception of patients inoculated with the small pox was not a public nuisance, and mentioned that upon an indictment of that kind there had lately been an acquittal. And he added, that the fears of mankind, though they may be reasonable, will not create -a nuisance, 3 Atk., 750.^ Le Blanc J. in passing sentence observed that although the Court had not found upon its records any prosecution for this iThe indictment, argument of counsel for the crown, and concurring .opinion of EUenborough, C. J. , are omitted. 54- Cases on Criminal Law. specific offence, yet there could be no doubt in point of law that if a person unlawfully, injuriously, and with full knowledge of the fact, exposes in a public highway a person infected with a con- tagious disorder, it is a common nuisance to all the subjects, and indictable as such. However, the Court was not disposed upon the present occasion to impute to the defendant an intention of being the cause of the consequences which had followed. Neither did they pronounce that every person who inoculated forthis disease was guilty of an offence, provided it was done in a proper manner, and the patient was kept from the society of others so as not to endanger a communication of the disease. In such a case the law did not pronounce it to be an offence. But no person having a dis- order of this description upon him ought to be publicly exposed to the endangering the health and lives of the rest of the subjects. The defendant was sentenced to imprisonment in the custody of the marshal for three ca:lendar months.^ COMMONWEALTH v. CASSIDY. Quarter Sessions of Philadelphia, 1865. 6 Philadelphia, 82. Motion to quash the indictment. Allison, J. This motion is based on several grounds — first, that the facts laid in the bill do not constitute an indictable offence. In this we do not agree with the defendant. To do any act which is calculated to spread terror and alarm through the community, unless such act is right and proper in itself consid- ered, or becomes necessary under the special circumstances sur- rounding the commission of that which is complained of as con- stituting an offence, renders the person so offending liable to- indictment at common law. For illustration, to circulate a report of an invasion, or the breaking out of an infectious or contagious disease, if the report be false, would be indictable, because such reports are calculated ^Accord: Selling unwholesome food, Rex v. Dixon, 3 M & S., 11 (1814);. throwing carcass into a well, St. v. Buckman, 8 N. H,, 203 (1836); bringing horse infected with glanders into a public place, Reg. v. Henson, i Dears., 24 (1852); selling unwholesome water, Stein v. St., 37 Ala., 123 (1861). — Ed. Cases on Criminal Law. 55 to excite unnecessary fear and terror in the minds of the people ; whilst if the facts corresponded with the report, no indictment would lie, because it would under ordinary circumstances be eminently proper that such information should be given to the public. The general principle is that whatever is injurious to a large class of the community is a nuisance at common law. Lansing v. Smith, case 146. The carrying on of a trade, which is in itself lawful, if it is injurious to the comfort of the community gen- erally, or the immediate neighborhood, constitutes a nuisance. People V. Cunningham, i Denio, 524. Upon this principle, indict- ments have frequently been sustained in this court for maintaining a bone boiling or lampblack establishment. So also, a swineyard in a city or thickly populated neighborhood is a nuisance. Com- monwealth V. Vansyckle, Brightly, R., 69. These and kindred cases rest on the ground of their causing discomfort merely to the public. If indictments will lie for cause like to those named, it does not require authority for the doctrine that whatever injuriously affects the health or the morals of a large class of the community, is indictable as a common nuisance — such as the letting off of fireworks in a public street, or the keeping of a disorderly house. This indictment charges the unlawful circulation of a false report by handbills posted on the corners of public streets, and other public places in the city, calling on the citizens to look out for a child stealer, describing her as a woman about twenty-four years of age, etc. The hope is suggested that she may be dis- covered and brought before the public, where she may be observed by both heads of families and their children, etc. That this publication, given to the public in the manner above stated, constitutes, in whatever light it may be viewed, a common nuisance, cannot, we think, be well questioned ; that it is injurious to both the comfort and health of a large number of persons in the community in which the report has been put in circulation, is self-evident, because its tendency is to fill the mind with anxiety, fear and alarm, to the absolute destruction of the comfort and happiness of many, and by this means is to a greater or less extent, injurious to the health of persons brought under such influences. 56 Cases on Criminal Law. Mental anxiety, and an imagination excited by terror, are fruitful sources of bodily disease and loss of life, and upon none of the instincts and susceptibilities of our nature do these influences tell with greater power than when brought to bear upon the anxiety of parents for the safety of their offsprings. The motion to quash is overruled} SECTION VII. OFFENCES AGAINST TRADE. RESPUBLICA V. POWELL. Supreme Court of Pennsylvania, 1780. I Dallas, 47. This was an indictment against the defendant, a baker em- ployed by the army of the United States, for a cheat, in baking 219 barrels of bread; and marking them as weighing eighty-eight pounds each, whereas they only severally weighed sixty-eight pounds. The indictment being originally found at the City Court, in October Sessions, 1779, was removed by certiorari into this Court. And now Lewis, for the defendant, contended, that false tokens are only indictable by the St. of 33 Hen., S, c. i, which has no operation in Pennsylvania, and he cited 3 Burr., 1697; i Burn., 291 ; 2 Sess. Ca., 2. The Attorney General {Sergeant) insisted that the defendant's office was a public trust; and cited 2 Burr., 1125; i Hawk., 187. The Court said, that this was clearly an injury to the public ; and the fraud the more easily to be perpetrated, since it was the customa 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 was himself the officer of the public pro hac vice. They were therefore of opinion, that the .©ffeince was indictable. ■' Part of this case relating to another point is omitted. Cases on Criminal Law. 57 MIDDLETON v. STATE. Court OF Appeals OF South Carolina, 1838. Dudley, 275. O'Neall, J. delivered the opinion of the Court.* The indictment charges the defendant in three counts, as follows; to wit : ist. That she did overreach. 2nd. That she did cheat. 3d. That she did defraud one Alexander L. Gregg of sundry articles of property, by passing to him a promissory note -on one L. G. Smith and John Foxworth for ten dollars, pretending ithat it was of that value, and that the makers were in law liable to jpay, and would pay the same, when she in fact knew that they were mot liable to pay, and would not pay the same. This is the sub- stance of the charges. The first inquiry arises, is any offence at common law charged? T think it is very clear there is not. It is a mere civil injury, for which the party injured might have his remedy by action of deceit. It is a mere false representation of a thing to be of value, which 4he defendant knew to be valueless. There is in this no offence against the public. It is in its consequences and effects confined to the parties to the transaction, and thus at once shows that no prose- •cution at common law can be sustained. The definition of a cheat -at common law, given by Russell, in his 2nd vol., 139 — the fraud- ulent obtaining of property of another, by any deceitful and illegal practice or token (short of felony) which affects or may affect the public, seems to give, in general terms, the most proper notion of the offence, which I have been able to meet with. It has the sup- port of the case of the King v. Wheatly, 2 Burr., 1125, in which the defendant was indicted for selling sixteen gallons of amber when it had been represented by him at eighteen gallons, and sold accordingly, the defendant well knowing that the true quantity was sixteen gallons ; it was held that this was no offence, and that the judgment must be arrested. In that case, Lord Mansfield stated the rule to be, that " The offence that is indictable must be 'Argument of counsel and part of the opinion construing the St 1791 ■omitted. 58 Cases on Criminal Law. such an one as affects the public — as if a man uses false weights and measures, and sells by them to all or many of his customers, or uses them in the general course of his dealings ; so if a man de- frauds another under false tokens. For these are deceptions that common care and prudence cannot guard against. Speaking of the case then before the Court, and applying to it the test of the rules which he had stated, he said, " it is a mere private deception." The definition given in Russell, and the case of King V. Wheatly, sustain fully the remarks which I made in the outset of my opinion, and show that the indictment cannot be sus- tained at common law. The Statute 33 Henry, 8, c. i, P. L., 55, '<■ has been supposed in the argument, may sustain the conviction ; it is, therefore, now necessary to look to it. The preamble to the statute states the mischief to be, that many light and evil-disposed persons, " had falsely and deceitfully contrived, devised and imag- ined privy tokens and counterfeit letters in other men's names, unto divers persons, their specified friends and acquaintances, for the obtaining of money, goods, &c.," it is therefore enacted, that " if any person or persons falsely, and deceitfully, obtain or get into his or their hands or possession, any money, goods, chattels, jewels, or other things, of any other person or persons, by color and means of any such false token or counterfeit letter, &c.," he should on con- viction be punished by imprisonment, pillory, or other corporal pain (except pains of death) at the discretion of the Court. Under this statute, as well as at common law, the obtaining^ money or goods by false token is punished. It is, therefore, now necessary, in this connection, to inquire what is a false token. It is somewhat difficult to define with pre- cision, or rather to describe, a false token in all cases. Taking the preamble of the statute as our guide, we would say it must be something false and purporting to come from one not the bearer,, and having in itself some private mark or sign, calculated to induce the belief that it is real, and thus to cause the person to whom it is delivered to part with his money or goods to the bearer or person delivering it. On looking into 2 Russell, 1384, 1 find the definition which I have given, is substantially that which he approves. This would be enough for this part of the case, for it is manifest that the note set out in the indictment could not be a privy false token, according to the definition or description which has been given. Cases on Criminal Law. 59 But it may be well here to notice what is meant by a false token at common law ; for it will, perhaps, aid us in the view which we may have to take of this case under the Act of '91. It seems to me that it is anything which has the semblance of public authority, as false weights, measures, seals and marks of produce and manufac- tures, false dice, marked cards, and things of a similar kind, false and deceptive, used in unlawful games ; 2 Russ. on Crimes, 1368. It is true, in looking into the books, we find many cases of indict- ment, in which fraud is an essential requisite, as in cases of common cheat, forgery and conspiracy ; and some confusion has arisen from such cases being often spoken of under the general head of cheats at common law, and, therefore, mingled with the offence of cheat- ing or swindling by false tokens. But each of them constitutes an independent and distinct offence. The motion in arrest of judgment is granted. ^ SECTION VIII. OFFENCES AGAINST PUBLIC DECENCY. BELL V. STATE. Supreme Court of Tennessee, 1851. I Swan, 42. McKiNNEY, J. delivered the opinion of the Court. The plaintiff in error was indicted and convicted in the Circuit Court of Blount, for the utterance of certain grossly obscene words in public, and in the hearing of divers persons, in the town of Louisville in said county. The different words alleged to have been spoken, are set forth in three different counts. This was nec- essary to the validity of the indictment, but we omit to repeat them here ; because of their extremely vulgar and offensive character. It is sufficient to state, that they relate to acts of criminal inter- 1 Accord: See also C. v. Warren,^ Mass. 72 (1809); Rex v. Haynes, 4 M. & a, 214 (181 5) ; C. V. Gallagher, 14 Pa. L J., 58 (1844).— Ed. 6o Cases on Criminal Law. course alleged by the defendant to have taken place between him and the daughters of Abraham Hartsell, and to a loathsome disease, said by the defendant to have been contracted by him from the wife of Hiram Hartsell. Two questions are presented for our determination : First, is the utterance of obscene words, in public, an indictable offence? And if so, secondly, are the words proved sufficient to support the charges in the indictment ? Upon the first point, the argument for the plaintiff in error rests upon the narrow and unsubstantial ground, that no precedent, or adjudication, has been found in support of such an indictment. Admitting this to be true, for the present, what does it establish ? If the case stated in the indictment falls within the operation of clear, well defined, and well established principles of law, is it to be urged against the maintenance of this prosecution, that no similar case has heretofore occurred calling for the Hke application of such principles ? Surely not, at this day. Are not innumerable instances to be found in the modern Reports, both of England and America, in which the liberal, enlightened, and expansive principles of the common law have been adapted and applied to new cases, for which no precedents were to be found, so as to meet the ever varying condition and emergencies of society? And this must continue to be so, unless a stop be put to all further progress of society ; and unless a stop be also put to the further workings of depraved human nature, in seeking out new inventions to evade the law. What then are the well established principles of the common law, applicable to the present case ? The distinguished commentator on the laws of England informs us, that upon the foundations of the law of nature and the law of revelation, all human laws depend, i Bl. Com., 42. The municipal law looks to something more than merely the protection of the lives, the liberty, and the property of the people. Regarding Chris- tianity as part of the law of the land, it respects and protects its institutions ; and assumes likewise to regulate the public morals and decency of the community. The same enlightened author, I Vol. Com. 124, distinguishes between the absolute and relative duties of individuals, as members of society. He shows very clearly that, while human laws cannot be expected to enforce the former. Cases on Criminal Law. 6i their proper concern is with social and relative duties. Municipal law being intended only to regulate the conduct of men, considered under various relations, as members of civil society ; hence he lays it down, that however abandoned in his principles, or vicious in his practice, a man may be, provided he keeps his wickedness to him- self, and does not offend against the rules of public decency, he is out of the reach of human laws. But, says the learned writer, if he make his vices public, though they be such as seem principally to affect himself — as drunkenness or the like — they then become, by the bad example they set, of pernicious effect to society ; and, therefore, it is then the business of human laws to correct them. See also 4 Bl. Com., 41, 42. It is certainly true, that in England many offences against good morals and public decency, if committed in private, belong properly and exclusively to the ecclesiastical courts. But it is equally true, that whenever they become public, so as thereby to become of pernicious example, or offensive to pubhc morals and decency, they fall within the proper jurisdiction of the temporal courts. In the case of The King v. Delard, et al., 3 Burr. R., 1438, which was an information for conspiracy, for putting a young girl into the hands of a man of rank and fortune, for the purpose of prostitution — Lord Mansfield laid it down, that, except as to those cases appropriated to the ecclesiastical court, the court of King's Bench in the custos morum, or guardian of the morals of the people, and has the superintendency of offences contra bonos mores; and upon this ground, he says, both Sedley and Curl, who had been guilty of offences against good manners, were prosecuted in that court. In I Russell on Crimes, 270, at top, it is said that, " In general, all open lewdness, grossly scandalous, is punishable by indictment at the common law ; " and, says the author, " it appears to be an established principle, that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor." So Blackstone lays it down, 4 Com., 64, that any grossly scandalous and public indecency, is indictable, and punishable in the temporal courts by fine and imprisonment. These principles have been fully recognized by this court. In the case of Grisham and Ligon v. The State, 2 Yerger, that 62 Cases on Criminal Law. thorough common lawyer, the late Judge Whyte, declared that "The common law is the guardian of the morals of the people, and their protection against offences notoriously against public decency and good morals." And he adds, in another part of the same opinion, " we have the express authority of the common law, as declared by the Judges in the courts of justice, that all offences against good morals are cognizable and punishable in the temporal courts, that are not particularly assigned to the spiritual court." The books of Reports, both of England and this country, abound with cases where, upon these principles of the common law, convictions have been enforced for various offences against public morality and decency, without the aid of any statutory enactment. And surely it can be no reason for the relaxation of these salutary principles, but rather the contrary, that in this coun- try we have no "spiritual court," to lend its aid in the suppression of the numerous offences faUing within the class now under consid- eration ; and that such of them as cannot be reached in the mode pursued in the case before us, must "go unwhipt of justice." It would be tedious to enumerate the cases in which offences have been held indictable as contra bonos mores — a few will suffice for the present purpose. Public drunkenness, 4 Bl. Com., 41. All indecent exposure of one's person to the public view, id. 65, n. 25. In the case of The King v. Crunden, 2 Campb., 89, i Russ. on Crimes, 302, it was held an indictable offence to bathe in the sea near inhabited houses, from which the person might be seen ; although the houses had been recently erected, and previ- ously thereto it had been used for persons in great numbers,to bathe at such place. And it was so held, for the reason, " that what- ever place becomes the habitation of civilized men, there the laws of decency must be enforced." So it has been held by this Court, that if the master of a slave in his employ, permit such slave to pass about, in view of the public, so meanly clad as not to protect the person of such slave from indecent exposure, the master is indictable for lewdness, or scandalous public indecency : 3 Humph. R., 203. And it may be laid down, in general terms, that all such acts and conduct as are of a nature to corrupt the public morals, or to outrage the sense of public decency, are indictable, whether committed by words or acts. Cases on Criminal Law. 63 These adjudications, without citing others, we think furnish analogies sufficiently strong to sustain the present prosecution. Are the outrageously vulgar and obscene words found in this record, if uttered in the ear of the public, less likely to shock any one's sense of decency, and to corrupt the morals of society — not to speak of their inevitable tendency to provoke violence and blood- shed — than the offences charged in the several adjudicated cases above cited? It does not so appear to us. But, were there no analogy to be drawn from any decided case, we hold, that, upon the broad principles of the common law which we have stated, this prosecution is most amply sustained. Thus fortified by sound prin- ciples — principles which lie at the foundation of every well regu- lated community — (and resting on a basis so immutable) we are the more indifferent as to precedents exactly in point.* Let the judgment be affirmed.^ STATE V. WILLIAMS. Superior Court OF Tennessee, 1808. 2 Overton, 1 08. Indictment in the county court for eavesdropping ; appeal to this court, and the only question was whether such a prosecution can be maintained. It was insisted for the defendant, ist, that there was no statute of the State upon the subject. 2d, That the act which adopted the laws of England confined such adoption to such as are con- sistent with our mode of living. 1715, c. 31, s. 5. No precedent can be found of such an indictment, which furnishes a strong infer- ence that such a prosecution was not conformable to the principles of our government, or modes of living. By the Court — ^Powell J. and Overton J. absent, Campbell J. 'Part of the case is omitted. ^Accord: St. ^'. Appling, 25 Mo., 315 (1857); exhibition of indecent picture, C. V. Sharpless, 2 S. & R., 91 (18 15); indecent exposure of person, Britain v. St., 3 Humph., 203 (1842); C. V. Spratt, 14 Phila., 365 (1880); cf. Reg. v. Watson, 2 Cox, C.C, 376 (1847); night walking, St. v. Dowers, 45 N. H.,543 (1864); keeping common gaming house, P. v. Jackson, 3 Denio, loi (1846); exhuming body for dissection. Rex v. Lynn, 2 T.R., 733 (1788); sodomy, C. V. Thomas, i Va. Cas., 307 (18 12); keeping, or leasing house for immoral purposes, P. v. Erwin, 4 Denio, 129 (1847). — Ed. 64 Cases on Criminal Law. Agreeably to the common law, such an indictment well lies, and nothing can be seen in this part of it, which is inconsistent with, our situation, or in fact the situation of any society whatever.* ANDERSON v. COMMONWEALTH, 1826. General Court of Virginia, 1826. 5 Randolph, 627. The indictment against the plaintiff in error, contained two counts, the first of which charged that he, being a married man, on the 22d November, 1825, in the said county of Chesterfield, one Elizabeth F. Hargrove a maiden, and unmarried, and under the age of twenty-one years, that is to say, of the age of sixteen years, two months, and nineteen days, having no father living, and being then and there under the care and custody of Elizabeth Hargrove, a widow, her mother, did entice, inveigle, take and carry away from the care and custody of her said mother, for the purpose of pros- tituting and carnally knowing her the said Elizabeth F. against the peace and dignity of the Commonwealth. The second count in like manner charges him with the enticing, inveigling, taking and carrying away the said infant over the age of sixteen years, and moreover charges that he did, on a subsequent day, deflour, car- nally know, and prostitute her the said Elizabeth F. Hargrove, against the peace and dignity of the Commonwealth. Dade, J. delivered the opinion of the Court. The question is, whether the offence of which the plaintiff has been convicted, and had judgment, is a misdemeanor, punishable by indictment at the common law. The class of misdemeanors within which it is insisted this offence is comprehended, is that of offences contra bonos mores, over which the Court of King's Bench in England, and the Superior Courts of Law of this Commonwealth, have always claimed tO' have jurisdiction. It is admitted, that before the statute oi circum- specte agatis, 13 Edward i, the Court of King's Bench did on this principle punish the offence of incontinency, and that by that statute the jurisdiction was transferred to the ecclesiastical courts ^Accord: Common scold, James v. C, 12 SL & R., 220 (1825); C. v. Lovett, 6 Pa. L. J., 226 (1831); St. v. Pennington, 3 Head, 299 (1859). — Ed. Cases on Criminal Law. 65 It may be wtU doubted whether the King's Bench before the statute, or the Courts Christian since, looked beyond the simple fact of incontinence, as that offence is at present contemplated and punished by our own Acts of Assembly. In other words, whether they looked beyond the mere offence of incontinence, as consisting in the single act of cohabitation between persons of dif- ferent sexes, without the rites of marriage, not varied by any fraud, deception, or inveiglement which may have been practised by the man. But after the statute of circumspecte agaiis, the Court of King's Bench did not exercise jurisdiction in punishing the mere act of incontinence. It, however, retained its general power of punishing offences contra bonos mores, and it is presumed might have punished an offence of incontinence combined with circum- stances, which, beyond the mere criminality of the simple fact, were calculated to make it injurious to society ; as, in case of inconti- nence in a street or highway. But, in such cases the jurisdiction would not spring from the criminal character of the simple fact, but from its publicity ; as, there are many cases where an act, which is not criminal in private, becomes penal by the publicity which attends its perpetration. The act of Sir Charles Sedley, in running naked through the streets, derived its whole criminality from its publicity. It is not, therefore, in this case allowable to con- nect the criminality of the mere act of incontinence, which as such, is punishable in a certain mode prescribed by the statute, with the particular circumstances of fraud and deception, and the special injury to the female, so as to make the supposed common law offence, (as the Courts might entertain it in England, since the statute oi circumspecte agatis), derive support, or even acquire being from the statutory offence. If the statutory misdemeanor of simple incontinence is to be punished, it must be according to the statute. If there be other circumstances in the case which entitle the Com- mon Law Courts to jurisdiction, those circumstances must of them- selves constitute a misdemeanor. By these principles, the only two reported cases in the English books are to be tested. The case of The King v. Lord Grey and others, 9 State Trials (Cobbet's edition), p. 127, was that of an information, alleging a conspiracy to take away, and debauch a maiden over the age of sixteen, and under twenty-one, and an accomplishment of the act by those means. This conspiracy is emphatically charged in the informa- 66 Cases on Criminal Law. tion, and as it was to do a wrongful act, for which certainly, if done, an action lay to the father of the maid, the conspiracy, if proved, clearly amounted to a common law misdemeanor. So, in the case of Sir Francis Blake Delaval and others, 3 Burr., 1432, which was " a motion for an information against the defendants for a conspir- acy to put a young girl into the hands of a gentleman of rank and fortune, for the purpose of prostitution," although Lord Mansfield, in allowing the motion, intimates an opinion that the Court of King's Bench might have jurisdiction of the case, as one contra bonos mores, yet he decides it on the ground that there was in that case, " a conspiracy, and confederacy ;" which, says he, "are clearly and indisputably within the proper jurisdiction of this Court." Without doubt in these cases, the Court having jurisdiction of them, on undeniable common law principles, the punishment in case of conviction, might well be aggravated by the baseness, perfidy, or malignity, which was the motive and end of the conspiracy. In like manner, as in trespass, circumstances may aggravate the dam- ages, which would not of themselves alone support the action. But clearly, neither of these cases does maintain the position, that as a common law misdemeanor, an indictment or information, will lie, either for simple incontinence, or for incontinence produced by means of deception, inveiglement, or enticement, in other words, by seduction. It is too late now to assume jurisdiction over a new class of cases, under the idea of their being contra bonos mores. We must consider the practice of the English Courts, from which we derive the principle, as having settled in the course of many centuries, the true limits and proper subjects of this principle. If we are to dis- regard these landmarks, and take up any case which may arise under this principle, as res Integra, then might it be extended to cases which none has yet thought of as penal. A case of slander may display as much baseness and malignity of purpose, as much falsehood in its perpetration, as ruinous effects in its conse- quences, and as pernicious an example in its dissemination, as this case of seduction. And yet none would think of prosecut- ing it criminally. It is true, that if something peculiar in our sit- uation had given rise to a class of cases contra bonos mores, as in regard to our slaves, which could not have existed in England, we might be justified in applying the rule in the absence of all prece- Cases on Criminal Law. d^, dent. But, in relation to seduction, no such supposition can be made, as we l^r Alderson, B., Reg. v. Brown, i C. & M., 314, by the same learned Baron, and by Bram- well, B., in Reg. v. Young, 10 Cox C. C, 371. The cases in which it has been held that persons may lawfully engage in friendly encounters not calculated to produce real injury or to cause angry passions in either, do not in the least militate against the view I have expressed ; for such encounters are neither breaches of the peace nor are they calculated to be productive thereof, but if, under color of a friendly encounter, the parties enter upon it with, or in the course of it form, the intention to conquer each other, by violence calculated to produce mischief, regardless whether hurt may be occasioned or hot, as, for instance, if two men 72 Cases on Criminal Law. pretending to engage in an amicable spar with gloves, really have for their object the intention to beat each other until one of them be exhausted and subdued by force, and so engage in a conflict likely to end in a breach of the peace, each is liable to be prose- cuted for an assault ; Reg. v. Orton, 39 L. T., 293. Whether an encounter be of the character I have just referred to, or a mere friendly game, having no tendency, if fairly played, to produce any breach of the peace, is always a question for the jury in case of an indictment, or the magistrates in case of summary proceedings. The cases cited of alleged indecent assaults on young children by their consent, are no authorities to the contrary ; and may all be disposed of in this one observation, viz., that the indecent impo- sitions of hands charged in those cases as assaults neither involved, nor were calculated to involve, breaches of the peace, and, therefore, being by consent, were not punishable as assaults, any more than they would have been had the objects of them been for the most innocent purposes. I think it wholly immaterial, in considering cases of this description, to inquire by whom the first blow was struck, for, as was said by Lindley, J., in Reg. v. Knock, 14 Cox C. C, I, "the right of self-defence does not justify counter blows struck with a desire to fight." Upon the ruling of the chairman as to the illegality of the fight, I entertain, therefore, no manner of doubt, and I am clearly of opinion that the combatants themselves were each guilty of an assault upon each other.' STATE V. HARTIGAN. Supreme Court of Vermont, i860. 32 Vermont, 607. Kellogg, J. The information against the respondent in this case contained two counts ; the first charging him with the com- mission of the crime of rape upon one Orilla Vincent, and the second charging him with an assault upon the same woman with 1 Accord: C. V. Collberg, 119 Mass., 350 (1875) ; St. v. Burnham, 56 Vt, 445 (1884).— Ed. Cases on Criminal Law. 73 intent to commit rape upon her. On trial the respondent was acquitted on the first count, and convicted on the second count. The evidence on the trial is detailed in the respondent's excep- tions, and the Court instructed the jury that if they found that the respondent, upon the occasion when, as it was alleged and testified to by the woman Vincent, each of the said crimes was committed, laid hold of her person and pushed her, as stated in her testimony, with the intention and for the purpose of having sexual intercourse with her by force and against her will, and that she resisted for a time, but ultimately yielded, they might find him guilty under the second count, although they might find that the sexual connection then had by him and her which followed, was with her consent. The respondent excepted to the charge of the Court on this point. Whatever might be our opinion respecting the sufficiency of the evidence to warrant a conviction of the respondent on either <;ount, our duty at this time is to be confined to the examination of the errors assigned in the charge of the Court to the jury, to which the respondent's exceptions exclusively relate. It is an assump- tion of the very point in controversy to say that the facts given in the evidence constitute one entire transaction, and that as the jury have acquitted the respondent of the greater offence, he cannot be convicted of a lesser one on testimony which was a part of the -evidence introduced to establish his guilt of the greater offence. The jury have found by their verdict that the respondent did, on the occasion testified to, assault the woman with the intention and for the purpose of having sexual intercourse with her by force and against her will, and that she resisted for a time, although she ultimately yielded. These facts are all which are essential to be established in order to make out the proof that the crime was com- plete. And we consider that the charge of the Court in respect to the resistance of the woman referred by reasonable intendment to a real resistance on her part, made in earnest and good faith, and that the charge, so understood, was all which could be required on that point. But it is claimed that the subsequent yielding and consent of the woman to the sexual intercourse which followed, has relation, back to, and covers the preceding acts ; or, stated in equivalent words, that the ultimate consent of the woman should have a retro- active effect, by relation, and operate as a condonation of a crime 74 Cases on Criminal Law. which had been complete. The rules of criminal law are not founded upon legal fictions, and the doctrine of rela:tion, however useful it may be as a rule defining or regulating private rights in a civil suit, has no application in criminal proceedings. On this point the rule, as stated in 3 Greenleaf's Evidence, Sec. 21 1, is that if the woman was first violated and afterwards forgave the ravisher and consented to the act, still the particular" offence in question being committed by force and against her will at the time of its commission, the crime is in legal estimation completed ; these cir- cumstances being only admissible in evidence on the part of the respondent to disprove the allegation of the want of consent. The same rule is stated in i Russell on Crimes, 677, and also in Ros- coe's Criminal Evidence, 860. It has never been regarded as a legal excuse for the consummated offence that the woman consented after the fact, and we regard this principle as being applicable to the case of an assault with an intent to commit a rape, as well as to the higher offence. It is, in our judgment, decisive of the ques- tion raised in this case, and as we find no error in the instructions given by the Court to the jury, the respondent's exceptions are overruled. On the application of the respondent the case was remanded to the county to pass sentence. REX V. ROSINSKI. Court for Crown Cases Reserved, 1824. I Moody, 19. The defendant was tried and convicted before Justice Bayley, at the Lent Assizes for the County of Lancaster, in the year 1823.^ The third count was for a common assault. It appeared front the evidence that the defendant pretended to be able to cure dis- orders of all kinds. Ann Gibbons, the prosecutrix, applied to the defendant to be cured of fits, when the defendant told her she must strip naked. Upon the prosecutrix refusing to do this, the defendant told her that she must or else he could not do her any good. The prosecutrix then began to untie her dress, and the de- fendant stripped off all her clothes ; she told him at the time she ^The first count is omitted: Cases on Criminal Law. 75 did not like to be stripped in that manner, but said nothing more. When she was stripped, the defendant rubbed her five or ten min- utes with some stuff" from a bottle, and then bid her put on her clothes, which she did, and went away. She said she did not put off her clothes willingly, he made her. From the prisoner's defense it seemed as if he wanted to dis- cover if she had the menses about her at the time. The learned Judge left it to the jury to say whether the prisoner really believed that the stripping her could assist him in enabling him to cure her. The jury were satisfied he had no such belief, and that it. was wholly unnecessary ; but the learned Judge doubted whether the special count was good in law, and whether the making her strip and pulling off her clothes was an assault, and reserved those points for the consideration of the Judges. In Easter Term, 1824, the Judges met and considered this case, and the conviction for the common assault was held right. COMMONWEALTH v. NICKERSON. Supreme Judicial Court of Massachusetts, 1862. 5 Allen, 519. Indictment under Gen. Sts. c. 160, § 30. The first count charged that the defendants, three in number, on the fourth of August, i860, at Nahant, committed an assault and battery upon Charles A. T. Rice, and then and there without any lawful au- thority, and without the consent and against the will of said Charles, confined and imprisoned him for the space of two hours. Dewey, J. The conviction of the defendants upon the first count of this indictment may be well sustained. The evidence shows an assault upon the person of C. A. T. Rice, and a restraint upon his liberty. Every such restraint of the liberty of a person, if not justified by law, is in the eye of the law a false imprisonment, for which the party was liable to an indictment at common law. Com. Dig. Imprisonment, G. ; 3 Chit. Crim. Law, 835. The like offence is now made punishable by statute, under the provisions of Gen. Sts. c. 160, § 30. The only question upon this count arises upon the ruling of 76 Cases on Criminal Law. the court upon that part of it which alleges that the assault and false imprisonment were committed without the consent and against the will of said C. A. T. Rice. The instructions to the jury as to what would constitute a seiz- ing and imprisonment against the will of the party were certainly sufficiently favorable to the defendants, as they would exclude all previous knowledge of their object or cooperation in forcibly tak- ing the child from the custody and care of his teacher, on the part of the child himself. But in our opinion a more stringent ruling upon this point would have furnished no legal ground for exception in matter of law. The party seized and imprisoned was a child of tender years. The legal custody and care of him was in his father. This had been judiciously settled in proceedings instituted by the mother asking for his custody. The adjudication settled the rights of the parties as to the custody of the child, and rendered illegal and criminal any attempt on the part of the mother or agents act- ing under her to obtain by violence the possession of him. Being in the actual custody of his father, whose will alone was to govern as to his place of residence and the selection of a teacher and custodian, the child of nine years of age was incapable of assenting to a forcible removal from the custody of his teacher, and a transfer to other persons forbidden by law to take such custody. He was under illegal restraint, when taken away from the lawful custody and against the will of his rightful custodian ; and such taking is in law deemed to be forcible and against the will of the child. This view is in accordance with that taken in the case of State V. Farrar, 41 N. H., 53, upon a similar indictment. See also State V. Rollins, 8 N. H., 550. It is always so held in cases heard upon a habeas corpus issued upon the application of one of the parents, alleging imprisonment and restraint of the child, and seek- ing his restoration ; and in the case first cited, it was held equally applicable to the case of an indictment for assault and imprison- ment of a child of tender years. The doctrine of the cases cited from the English reports, of indictments for assaults upon female children, by indecent famil- iarities to which they assented, and in which by reason of such assent the acts done were held not to amount to assault, we think should not be extended to cases like the present, where the abduc- Cases on Criminal Law. yj tion from the lawful custody of the father by violence and strong hand is the substantial offence.^ Without limiting the precise age in which a child would be held not to have the legal capacity to assent to such forcible abduc- tion from the custody of the parent to whom such custody has been assigned by an order of this Court, the forcible taking away of a child of nine years of age, against the will of the father, or those to whom his father had committed him for nurture or edu- cation, will authorize a jury to find that the child was illegally restrained of his liberty, whatever may have been his apparent wishes or satisfaction in being withdrawn by force from his place of legal custody, and, in the language of the law, " his place of legal freedom," and placed under the care of those whose custody was illegal restraint. The result is, therefore, that the verdict on the first count is sustained, and judgment may be entered thereupon, if the Attorney General shall enter a nol. pros, upon the other counts.^ STATE V. COVINGTON. .Supreme Court of South Carolina, 1832. 2 Bailey, 569. This was an indictment under the Act of 1754, P. L., 236, for. inveigling and stealing a slave named Dick, the property of Jacob Suber, with a third count for aiding the said slave in running away, &c. The jury, under charge of the Court, found the defendant guilty ; and he now moved to set aside the verdict, and for a new trial. J. J. Caldwell and Banslett for the motion. Thompson, Solicitor, contra. Johnson, J.^ I come now to the consideration of, I think, the most important question which arises out of the grounds of ' This doctrine is generally denied in the United States ; Singer v. People, 13 Hun, 418; Commonwealth v. Roosnell, 143 Mass., 32; People v. Stewart, 85 Cal., 174. When consent is held to be a justification, force in malicious excess of the consent will take away its justifying effect. Richie v. State, 58 Ind., 355 (1877). -Ed. ^ Part of this case is omitted. 'Part of the opinion is omitted. 78 Cases on Criminal Law. this motion. The owner, or rather his family in his absence, which I regard as equivalent, knew of and had assented to the negro's meeting the prisoner and arranging with him their plan of elope- ment, and moving forward in the execution of it ; and the question is, whether the owner, under the circumstances, can be said to be "deprived of the use and benefit" of the slave-, within the meaning of the Act. In considering this question, it will be necessary to recur again to the analogy between the crimes of inveigling, and stealing, a slave, in relation to the effect on the owner, the loss of use and benefit, for the purpose of applying the rules of law. In larceny, the primary inquiry is, whether the taking were invito domino, or without the will or approbation of the owner ; 2 East's P. C. 665, and so of inveigling a slave. If, therefore, one consent that another shall take his goods, or by his own act procure them to be taken, such taking is not larceny. But I apprehend, that the knowledge that they are to be taken, does not constitute evidence of such consent or approbation. Thus, if one, who has goods exposed, knows that a thief intends to take them, but neglect to watch or secure them, this neglect is in some sort an assent to the taking by the thief; but the act is not in pursuance of the will, or appro- bation of the owner, but the voluntary act of the thief A few cases will serve to illustrate the principle. In McDaniel's case, 2 East's P. C, 665, one Salmon had con- spired with McDaniel and other persons, to procure himself to be robbed by two others, who were ignorant of the design, for the purpose of procuring the reward given by Act of Parliament for apprehending robbers on the highway ; and it was held that the robbery, under such circumstances, did not constitute felony. The obvious reason is, that the act was procured to be done by the party complaining, and in pursuance of his will and approbation. But in Norden's case, 2 East's P. C.,666, where one knowing that a highway robber frequented a particular place, put himself in his way, and upon being attacked by the highwayman gave him his money, and afterwards seized him, it was held to be robbery in the highwayman ; for the act was not procured by the prosecutor nor done according to his will, but proceeded from the voluntary act of the prisoner. Eggington's case, 2 East's P. C, 666, bears even a more Cases on Criminal Law.. 79 striking analogy to the present. There, the prisoner and some others, intending to rob one Boulton's manufactory at Soho, had applied to one Phillips, his servant, who was employed there as a watchman, to assist in the robbery, and Phillips assented, but soon after gave information to Boulton, who assented to his carrying on the business, and to his leaving open the door leading to the front yard, and to his being with the prisoners the whole time. One hundred and fifty guineas and some silver ingots, marked for the purpose of identity, were left in the counting house ; and a majority of the Court were of opinion, that the taking, under these circum- stances, was larceny. Lawrence, J., doubted ; but the reasoning of the Court is, to my mind, perfectly satisfactory. They thought there was no assent on the part of Boulton. That his object being to detect the prisoners, he only gave them a greater facility to commit the larceny, than they otherwise might have had; and that this could no more have been considered as his assent, than if a man, know- ing of the intent of thieves to break into his house, were not to secure it with an unusual number of bolts. The design having orig- inated with the prisoners, it could only be considered as an apparent assent on the part of Boulton. Of the sime character, and alike analogous, is the case of Stroud, reported in a note in 2 Brev. Dig., 249, upon the authority of which very many cases have since been adjudged. That was a prosecution founded on the Act of the Legislature imposing a penalty on anyone who should deal or traffic with a slave, without a written ticket or permit from the owner ; and it was held, that the offence was consummated, although the trading was done by the slave in pursuance of the instructions of the owner, and in his presence, when the accused was ignorant of such instructions and presence. This, like Eggington's case, being a contrivance to detect the offender. The principle inculcated in these cases appears to me to have a direct application to the case in hand. Every act of the prisoner proceeded from his own mere motion, without any agency on the part of the owner of the slave. His not preventing the thing, when he knew of it beforehand, is not evidence of the assent of his will, but is only an apparent assent. The act was therefore invito domino, and constituted felony. O'Neall, J., concurred. Motion refused. 8o Cases on Criminal Law. SPEIDEN V. STATE. Court of Appeals of Texas, 1877. 3 Texas Appeals, 1 56. White, J.^ As disclosed in the record the facts are substan- tially as follows : Pinkerton's detective agency, at Chicago, Illinois, obtained, by some means, a number of letters and postal cards written by the defendant, from Dallas, to a friend in Chicago, urging him to come to Dallas and join him in breaking into and robbing some of the banks in the latter city. It appears that Pinkerton forwarded those letters to John Kerr, a banker of Dallas, who immediately called a meeting of the bankers of the city and submitted the matter to them. The result of this meeting was that the bankers requested Pinkerton to send a detective to Dallas to work up the case. Deroso, a sergeant of Pinkerton's force, came, and, after an interview with the bankers, sent back to Chicago for Wood and McGuire, two detective aids, who were to represent themselves to the defendant as professional burglars and induce him to enter some bank build- ing in the night time, when they would procure his arrest. After the arrival of Wood and McGuire they set to work to carry out this plan, keeping in constant communication with Deroso, and, through him, with the bankers, who were kept constantly in- formed as to the plans and movements of the parties. Finally it was agreed on all hands that the banking house of Adams & Leon- ard should be broken into on Sunday night. Adams & Leonard agreed to the arrangement, and the detectives were, in the adven- ture, working in their employ. Pursuant to the plan agreed upon, Deroso, Hereford, a deputy sheriff of Dallas county, a Mr. Mixon, United States Deputy Mar- shal, and another party entered and took possession of the bank during the daytime, about two or three o'clock on Sunday, to re- main therein until the burglary was effected and the defendant was arrested. About one o'clock at night the back door of the bank was forced open by the two detectives. Wood and McGuire, who came in, spoke to the concealed parties, and went into the vault, 1 Only so much of the opinion as relates to consent is printed. Cases on Criminal Law. 8r wheri, after remaining about an hour, Wood went out, told Speiden,. the defendant, that they wanted more help, and returned in a short time, and, coming in, closed the door after him. In a minute or two Speiden came in and closed the door, when the ofificers arrested him. Now, as to the law of the case : To our minds it is clear that Deroso and the other detectives were the servants and agents of Adams & Leonard, and had full authority to consent to defendant's entry into the bank, and that his entry was not only with their con- sent, but at their solicitation. The case is somewhat like that of a man being robbed by his own consent, although the supposed rob- bers did not know of the consent. Reanes' Case, 2 East, 734 ; McDaniel's Case, Fost. 121. In Tennessee, where the prisoner had arranged with a negro, during the days of slavery, to steal him, and the negro informed his master, who told him to carry out the agreement between the prisoner and himself, which was done, and the prisoner was arrested in the act, it was held that, to constitute larceny of a slave, it must appear that the accused had possession of the slave, and that the possession was obtained without the consent of the owner. Kemp V. The State, 1 1 Humph., 320. Mr. Bishop says : The cases of greatest difficulty are those in which one, suspecting crime in another, lays a plan to entrap him ; consequently, even if there is a consent, it is not within the knowl- edge of him who does the act. Here we see * * * that, supposing the consent really to exist, and the case to be one in which, on general doctrines, the consent will take away the crimi- nal quality of the act, there is no legal crime committed, though the doer of the act did not know of the existence of the circum- stances which prevented the criminal quality from attaching. * * * A common case is that of burglars who, intending to break into a house and steal, tempt the servant of the occupant to assist them, and the servant, after communicating the facts to his master, is authorized to join them in appearance. Under such cir- cumstances, clearly, the burglars are not excused for what they do personally ; but, it seems, if the servant opens the door while they enter they are not held criminal for this breaking thus done by the servant, acting under command of the occupant of the house broken." i Bishop's Cr. Law, sec. 262 ; see also sec. 263. 82 Cases on Criminal Law. The case of Regina z^. Johnson and Jones, i Car. & M. 41 Eng. C. L. R. 123, is in point. In that case the court say : " Cole, the groom, it is true, appeared to concur with the prisoners in the commission of the offence. But in fact he did not really concur with them, and he, acting under the direction of the police, must be taken to have been acting under the direction of Mr. Drake, the prosecutor. Under the circumstances of this case the prisoners went into a door which, it seems to me, was lawfully open. There- fore neither of them was guilty of burglary." In Eggington's case, which is'also in point, it was held " that no felony was proved, as the whole was done with the knowledge and assent of Mr. Boulton, and the acts of Phillips (the servant) were his acts." 2 East, 666. Another case in point is Allen v. The State, the substance of which is that, "when the proof showed that the prisoner proposed to a servant a plan for robbing his employer's office at night, that the servant disclosed the plan to his employer, by whom it was communicated to the poHce ; that the master, acting under the instructions of the police, furnished the servant with the keys of his office on the appointed night ; that the servant and the pris- oner went together to the office, when the servant opened the door with the key, and both entered through the door, and were arrested in the house by the police ; held that there could be no conviction of burglary." 40 Ala., 344. See also 2 Whart. Cr. Law, sec. 1 540 ; Roscoe's Cr. Ev. 345. In the case at bar the detectives cannot be considered in any other light than as the servants and agents of the bankers, Adams & Leonard. They, the detectives, had the legal occupancy and control of the bank ; two of them made arrangements with defendant to enter it ; and defendant, when arrested, had entered the bank at the solicitation of those detectives, who were rightfully in possession, with the consent of the owners. This cannot be burglary in contemplation of law, however much the defendant was guilty in purpose and intent. The judgment of the lower court must be reversed and the cause remanded. Reversed and remanded. Cases on Criminal Law. 83 STATE V. ABLEY. Supreme Court of Iowa, 1899. 109 Iowa, 61. Indictment for breaking and entering a store building. From a judgment of conviction the defendant appeals. — Modified. Taylor & Evans and E. P. Andrews for appellant. H. C. Liggett, J. H. Scales, Milton Remley, Attorney General, and Charles A. Van Vleck for the State. Waterman, J. The building entered was owned by the firm of Schaeffer & Reynolds. No question is made but that defendant broke and entered the store, and took goods therefrom ; but it is claimed that he cannot properly be convicted of the offense charged, because the entry was made with the assent of the owners or their agent. The facts upon which this claim is based are as follows : One Clock was marshal of the town in which the building was located. Prior to the commission of the crime. Clock (as he claims, for detective pur- poses) had been counselling and advising with defendant, not only in relation to this particular offence, but also as to the two breaking and entering other buildings. So zealous was the officer in this questionable line of duty and so anxious was he to impress defend- ant with the belief that he was earnest in his criminal intentions and would keep faith in the matters plotted, that Clock alone on one occasion broke and entered another store building, belonging to one Bryan, with a key furnished by defendant, and took from it some goods. Of course, he claims that this was done merely to lead defendant on. Clock testifies that the mayor of the town had pre- vious information from him of defendant's intention to enter the Bryan store. The mayor, who was a witness, does not testify on this point ; but, however that fact may be. Clock admits that Bryan, the owner, had no such information, and that the entry was effected without his knowledge or consent. One Will Reynolds, a clerk in the employ of Schaeffer & Reynolds, had a key to the building in ■question in this gase. Shortly before the commission of the offence charged, Clock borrowed this key to get an impression from which defendant could make another key which would open the door, and such a key was afterwards made by defendant. At this time Clock told Reynolds, the clerk, the use which he wished to make of the 84 Cases on Criminal Law. borrowed key, and also of defendant's criminal purpose. The breaking and entering were done in the night time. During the day Clock had warned several citizens of the contemplated crime — among others, Schaeffer, a member of the firm which owned the store. He told Schaeffer that defendant had a key to the store, and would enter it that night. He did not, however, tell him where or how the key had been obtained. The persons so warned were requested to be on guard and assist in defendant's arrest after the offence was completed. This plan was carried out. Schaeffer and the others watched. Clock and defendant came upon the scene about midnight. Defendant opened the door and entered the store. Clock following. As they came out with the property taken, defendant was arrested. One who has committed a criminal act is not entitled to be shielded from its consequences merely because he was induced to do so by another. If there is anything in the defense here, it must be because the entry was assented to by Schaeffer. But the evidence tends strongly to show that Schaeffer, though not objecting, did not personally assent. One who knows of a crime contemplated against him may remain silent and permit matters to go on, for the purpose of apprehending the criminal, without being held to have assented to the act. People v. Liphardt, 105 Mich., 80 (62 N. W. Rep., 1022); State V. Adams, 115 N. C, 775 (20 S. E. Rep., 722) ; State V. Sneff, 22 Neb., 481 (35 N. W. Rep., 220); Thompson v. State, 18 Ind., 386; States. Jansen, 22 Kan., 498. The question of the owner's personal assent was left to the jury, and, we think, under instruction that fully and accurately stated the law. But cer- tain instructions were asked by defendant and refused by the Court, the thought of which was to predicate the assent of the owner upon the acts of the clerk, Reynolds. The evidence does not show on the part of the members of the firm any knowledge of Reynolds conduct. Of course, if the clerk, with criminal intent, aided in any way in the entry of this building, he would be a party to the crime. But that is not what is claimed by defendant. He contends that if the clerk, though without criminal intent, assented to the entry, such assent will be imputed to the master. Some text writ- ers lay down the rule in terms broad enough to give support to this contention, and the following cases are cited by counsel as sustain- ing it : Reg. v. Johnson, 41 E. C. L., 123 ; People v. Collins, 53 Cases on Criminal Law. 85; Cal., 185 ; Saunders v. People, 38 Mich., 218 ; People v. McCord, 76 Mich., 200 (42 N. W. Rep., 1106) ; Allen v. State, 40 Ala., 344. In the California case, the agent of the owner, who was pre- tending to take part in the burglary, alone entered the building, and the decision was founded on this fact. The other cases are each based upon one of two states of fact : Either the servant had custody of the building and a right to open it at the time he did, or at the time he assented thereto, or the owner was aware of the part the servant was taking, and acquiesced therein. Neither of these conditions prevailed in the case at bar. It does not appear that Reynolds had charge of the building, or had any right to admit persons therein, after it was closed for the night; and as we have said, his conduct in the transaction with Clock was unknown to the own- ers. We do not think the clerk's conduct can be used as a shield for defendant, i Bishop Criminal Law (5th ed.), section 262 ; State V. Jansen, 22 Kan., 498. The instructions were rightly refused.' We cannot leave this case without again, and in more emphatic terms, expressing our disapproval of the conduct of Clock, who, if he did not suggest, at least encouraged the commission of the offence by defendant. We are inclined to doubt whether defendant, if left to himself, would have perpetrated the crime of which he has been convicted. Clock stimulated him with advice, aided him by acts, and, through unremitting effort, spurred him on to his undoing. This conduct was outrageous, if, indeed, it was not criminal, and it is aggravated, rather than excused, by the fact that Clock was a peace officer. Frail human nature is prone enough to crime ; it should not be purposely tempted ; and in this case it was urged to act. Defendant was sentenced to imprisonment in the penitentiary for a term of three years. In view of the facts we shall reduce the term to six months. With this modification, the judgment will be affirmed? ' Part of the opinion, dealing with a question of evidence, is omitted. ^See also St v. West, 157 Mo., 309 (1900) ; Dalton v. St., 113 Ga., 1037 (1901). — Ed. 86 Cases on Criminal Law. EFFECT OF CONSENT, ETC. (Conlinued.) (6) Consent of the State. If two play at barriers, or run a tilt without the King's com- mandment, and one kill the other, it is manslaughter ; but if by the King's command, it is not a felony, or, at most, per infortuniam. 1 1 H., 7, 23 ; B. Coron., 229 ; Dklton, Cap. 96 ; Co., P. C, p. 56 ; Hale, P. C, 473. REGINA V. LESLEY. Court for Crown Cases Reserved, i860. 8 Cox C. C, 269. Case reserved by Watson, B., at the Christmas Assizes at Liverpool. The prisoner was the master of the British ship " Louisa Braginton," and the charge against him was for the false imprison- ment of several Chilian subjects during a voyage from Valparaiso to Liverpool. These persons having been ordered to be banished from Chili by the Government of that country, were brought by force, guarded by soldiers of that State, on board the ship, whence the pHsoner, under a contract (a copy accompanies this case) with the Chilian Government, carried and conveyed these Chilian subjects to Liverpool. On this evidence I directed a verdict of guilty, reserving the question of law, whether or not the defendant was liable to an indictment in this country, under the circumstances, for the opinion of this court. W. H. Watson.i Earle, C. J. In this case the question is, whether a convic- tion for false imprisonment can be sustained upon the following facts : The prosecutor and others being in Chih, and subjects of ^The indictment, evidence and argument of counsel are omitted. Cases on Criminal Law. 87 that State, were banished by the Government from Chili to England. The defendant, being master of an English merchant vessel lying in the territorial waters of Chili, near Valparaiso, contracted with that government to take the prosecutor and his companions from Valparaiso to Liverpool, and they were accordingly brought on board the defendant's vessel by the officers of the Government, and carried to Liverpool by the defendant under his contract. Then can the conviction be sustained for that which was done in Chilian waters ? We answer, no. We assume that in Chili the act of Government towards its subjects was lawful ; and although an English ship in some respects carries with it the laws of her country in the territorial waters of a foreign State, yet in other respects it is subject to the laws of that State as to acts done to the subjects thereof. We assume that the Government could justify all that it did within its own territory, and we think it follows that the defend- ant can justify all that he did there as agent for the Government, and under its authority. In Dobree v. Napier, 2 Bing., N. C, 781, the defendant, on behalf of the Queen of Portugal, seized the plaintiff's vessel for violating a blockade of a Portuguese port in the time of war. The plaintiff brought trespass, and judgment was for the defendant, because the Queen of Portugal in her own territory had a right to seize the vessel and to employ whom she would to make the seizure, and therefore the defendant, although an Englishman, seizing an English vessel, could justify the act under the employment of the Queen. We think that the acts of the defendant in Chili become lawful on the same principle, and are therefore no ground for the conviction. The further question remains, can the conviction be sustained for that which was done out of the Chilian territory? and we think that it can. It is clear that an English ship on the high seas, out of any foreign territory, is subject to the laws of England, and persons, whether foreign or English, on board such ship are as much amenable to English law "It is not pretended that there was a law of our State authorizing the killing of a male of that tribe, and the proclamation or order of any officer of the State could not make that right which is wrong, or legal which is illegal. If such a proclamation or order was made, and if on account thereof any ignorant person was misled into the commission of crime, it is for the Gov- ernor to determine whether that would be a proper case for the exercise of executive clemency." Wilson, C, J., in St. v. Gut, 13 Minn., 341 (1868). 88 Cases on Criminal Law. as they would be on English soil. In Reg. v. Sattler (7 Cox Crim. Cas., 431), this principle was acted on so as to make the prisoner, a foreigner, responsible for murder on board an English ship at sea. The same principle has been laid down by foreign writers on international law, among which it is enough to cite Ortolan sur la Diplomatie de la Men, liv., 2, Cap. 13. The Merchant Shipping Act (17 and 18 Vict, c. 104, s. 267), makes the master and seamen of a British ship responsible for all offences against property or person, committed on the seas out of Her Majesty's dominions, as if they had been committed within the jurisdiction of the Admiralty of England. Such being the law, if the act of the defendant amounted to a false imprisonment, he was liable to be convicted. Now, as the contract of the defendant was to receive the prose- cutor and the others as prisoners on board his ship, and to take them without their consent over the sea to England, although he was justified in first receiving them in Chili, yet that justification ceased when he passed the line of Chilian jurisdiction, and after that it was a wrong which was intentionally planned and executed in pursuance of the contract, amounting in law to a false imprison- ment. It may be that transportation to England is lawful by the law of Chili, and that a Chilian ship might so lawfully transport Chilian subjects, but for an English ship the laws of Chili out of the State are powerless, and the lawfulness of the acts must be tried by English law. For these reasons, to the extent above mentioned, the conviction is affirmed. Conviction affirmed. CITY OF EVANSTON v. MYERS. Supreme Court of Illinois, 1898. 172 Illinois, 266. Mr. Justice Wilkin delivered the opinion of the Court.^ The Appellate Court, in passing upon this case, found that the beer was sold as alleged in the complaint, but held that, inas- much as the city furnished the money and the purchaser was in its employ to discover violators of the ordinance, the offense was one induced by the city of Evanston, and the defendant was not ' Thfropinion onlyisprinted. Cases on Criminal Law. 89 punishable therefor. Under the facts of the case, as we understand vthem, we cannot concur in this view. The offense, if one was com- initted, consists in the unlawful selling of intoxicating liquor. The "defendant was passing through an alley in Evanston with a load of beer when Denvir hailed him, asking, " How is it for a case of Taeer? " to which he replied, " It is all right." The money was paid and the beer handed out. It is clear that Denvir, in making this purchase, used no fraud, deceit, or inducement other than a willingness to buy. It also appears, uncontradicted, that appellee had sold beer to Denvir at other times, in violation of the ordinance in question. On this occasion he was willing to do so again. The -offense of selling the beer having been voluntarily committed, is it reasonable to say that the willingness of Denvir to purchase, for "whatever purpose or object, constitutes a sufficient inducement to appellee to make the sale, so as to excuse the act? We think not. The offense consisted, not in the buying, but in the selling of the beer. A number of cases are cited to sustain the theory of the appellee's defense, but in those cases the criminal acts charged were not wholly voluntaiy on the part of the defendant, but were induced, in some measure, by the acts and conduct of the prosecut- ing witnesses. The principle here involved is well announced in the case of Grimm v. United States, 156 U. S., 604. In that case -a postoffice inspector suspected Grimm of being engaged in the business of selHng obscene pictures and sending them through the mails. Under assumed names the inspector wrote for a supply of the pictures, and received them from defendant. In defense of the charge made against him, defendant insisted the conviction should not be sustained because the letters were deposited in the mails at the instance of the government and through the solic- itation of one of its officers. Upon this point the court said : "It does not appear that it \Vas the purpose of the postoffice inspector to induce or solicit the commission of a crime, but it was to ascer- tain if the defendant was in an unlawful business. * * * jj^g law was actually violated by the defendant. He placed letters in the postoffice which conveyed information as to where obscene matter could be obtained, and he placed them there with a view of giving such information to the person who should receive those letters, no matter what his name ; and the fact that 90 Cases on Criminal Law. the person who wrote under these assumed names and received his letters was a government detective in no manner detracts from his guilt." See the cases there cited. In the case at bar it may be truly said it does not appear that it was the purpose of the city of Evanston to induce or solicit the unlawful selling of beer within its limits, but to ascertain whether the ordinance was being violated in that regard. The appellee committed the act charged against him, deliberately and voluntarily, and in such a manner as to indicate that he would have sold beer to any other person applying for it. We think no element is want- ing on the part of appellee in this case to bring this act within the letter and spirit of the ordinance. The position of appellee is not that he is innocent of the offense charged, but that his guilt was proven on the trial by evidence obtained in an objectionable man- ner by the city. This is a matter of which he has no right to com- plain. Other points insisted upon by counsel for appellee have been duly considered, but we find no substantial merit in them. The judgments of the Criminal Court and Appellate Court will be reversed, and the case will be remanded to the Criminal Court. Reversed and remanded} EFFECT OF CONSENT, ETC. {Continued.) {c) Negligence of the Person Injured. REX V. WATERS. Old Bailey, 1834. 6 Carrington and Payne, 328. The prisoner was charged with the manslaughter of John Slee, on the coroner's inquisition, the grand jury having ignored the bill. ^Compare U. S. v. Adams, 59 Fed., 674 (1894) ; Armstrong v. St. 47 S. W. ,981 (1898).— Ed. Cases on Criminal Law. 91 It appeared that the prisoner was a seaman on board a schooner lying in the river Thames, and the deceased was a person in the habit of going about in a boat among the ships in the Pool selling spirits, purl, hot beer, &c., and that, on the day in question, the prisoner and he had some dispute about paying for some spirits, and, both being intoxicated, a good deal of rough joking had taken place between them. The first witness for the prose- cution 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 of the boat to lay hold of a barge to prevent the boat from drifting away, and, losing his balance, fell overboard, and was drowned. Payne, for the prisoner, submitted that this was not a case of manslaughter. Park, J. inquired of the coroner, who was on the bench, whether there was any other witness who could carry the case further, and being informed by him of the name of one, called him into the box and examined him ; but he swore that it was another man, and not the prisoner who pushed the boat away. Park, J. after consulting with Mr. Justice Patteson, said that his learned brother and himself were of opinion, that, if the case had rested on the evidence of the first witness, it would not have amounted to a case of manslaughter ; but that, as it now stood, of course the prisoner was entitled to an acquittal. Verdict, not guilty. REGINA V. WILLIAMSON. Central Criminal Court, 1844. I Cox C. C, 97. The prisoner was indicted upon the coroner's inquisition, which charged that he, within the jurisdiction of the Central Criminal Court, and within the limits of the 7 & 8 Geo. 4, c. 75 (private Act), feloniously, wilfully, and unlawfully did allow a cer- tain boat called a skiff, belonging to one John Williamson, then being a freeman of the Watermen's Company, to ply for hire at a 92 Cases on Criminal Law. certain public stairs and plying place, that is to say, at London- bridge-stairs, in the parish, &c., aforesaid, for the carrying of per- sons and passengers for hire, within the limits of the said Act, without a license having being granted, according, &c. ; and that he, the said prisoner, being in and on board the said boat, without such license as aforesaid, at the public stairs aforesaid, feloniously, wilfully, and unlawfully did use and work the said boat without such license as aforesaid, and that he then and there feloniously, wilfully, and unlawfully did embark in and on board of the said boat then and there being, without such license as aforesaid, him, the said deceased, and divers, to wit, ten other persons, as pas- sengers, for gain and hire, and the said prisoner and the said deceased, and said ten other persons so being there in and on board the said boat, without such hcense as aforesaid, he, the said prisoner, did then and there feloniously, wilfully and unlawfully use, navigate, and work the said boat, without such license as aforesaid, in and on the waters of the said river Thames, the said boat being then and there overloaded, and unfit from its frame, dimensions, and construction, for the conveyance of more than four persons as passengers therein, and that the said boat so being without such license as aforesaid, and the said deceased and the said several other persons then and there being therein as afore- said, and the said prisoner then and there also being therein, and having the control, conduct, and management thereof, was, then and there, by the force and violence of the said waters, and through the negligence, recklessness, want of skill, and proper caution of him, the said prisoner, and by the overloading of the said boat as aforesaid, upset and turned over in the said waters of the said river Thames, by which said upsetting and turning over of the said boat, he, the said deceased, was then and there precipitated into and immersed, suffocated and drowned in the waters of the said river Thames, of which said suffocation and drowning the said deceased then and there died, &c.^ The evidence adduced was to the effect that thirteen indi- viduals, children and grown persons, embarked in the boat, besides two watermen, of whom the prisoner was one. Two of the wit- nesses deposed, that by the swell of a steamer in motion the boat. ' The evidence relating to another point is omitted. Cases on Criminal Law. 93 was carried against tiie bows of another steamer lying alongside the landing-place ; that as soon as it struck, the prisoner called out to the passengers to sit still, but instead of doing so, they all jumped up and tried to lay hold of the steamer, and in consequence the boat was overset. Had the passengers remained quiet, the witnesses believed the accident would not have happened. Another witness gave it as his opinion that the fault lay in the prisoner's pushing off the boat from the stairs with one of the oars, he standing upright at the time, instead of being seated, and having the command of the sculls. He ought to have known the danger, under such circumstances, of crossing the strong tide that rushed through the arch of the bridge. But for his pushing off as he did, the boat would have cleared the steamer. He thought the same thing might have happened to the boat if there had been only three persons in it, or even one. Balantine and Wilde objected that on this evidence the prisoner could not be found guilty. If, as was stated, the mere pushing off the boat, he being then standing, was the cause of the accident, it was not so gross a want of skill as could be cognizable in a criminal court. Again, the inquisition states that the death resulted from the overloading of the boat, but there is no evidence whatever of this being the immediate cause of its sinking. One witness asserts that it would have been, in all probability, driven against the steamer had only two or three persons been on board, and the others declare that if it had not been for the sudden rising of the passengers and their attempting to catch at the steamer, the casualty would not have taken place at all. Williams, J. The words of the inquisition are, that the prisoner, " through his negligence, recklessness, and want of skill and proper caution, and by the overloading of the said boat, &c., committed the injury." If any one of these causes is proved, it will be sufficient. If the circumstance of the passengers jumping up really caused the accident, the overloading of the boat was immediately productive of such a result, and thus the prisoner is answerable, for he should have contemplated the danger of such a thing happening. If the fact of the defendant standing up in the boat was the cause of the catastrophe, then it may be gross neg- ligence on his part to have done so, because he is supposed to be acquainted with the force and velocity of the tide, and the danger 94 Cases on Criminal Law. of crossing it under the circumstances. On the whole, it is a question for the jury whether the deceased met his death either by the gross carelessness of the prisoner in the management of the boat, or in taking on board, in the first instance, a greater number of passengers than it was safely capable of carrying. Not guilty. REGINA V. LONGBOTTOM. Norfolk Circuit, 1849. 3 Cox C. C. 439. 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 Longbottom, submitted, at the close of the case for the prosecution, that he ought to be acquitted, inasmuch as it appeared that the deceased had contributed in a great measure, if not altogether, to his own death by his own obsti- nacy 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 he ought not to have been, reference being Cases on Criminal Law. 95 had to the lateness 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 passengers 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 conse- quences of their own illegal acts, which would be traced to their negligent conduct, if any such existed. I am of opinion that if any one should drive so rapidly along a great thoroughfare 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 man- slaughter, even though considerable blame may be attributed to the deceased. I do not at all recognize 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 circumstances here proved, the repre- sentatives 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 ■ 96 Cases on Criminal Law. 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 themselves in a careless and negligent way in the management of the horse entrusted 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. Verdict, guilty} Sentence : Eight months' imprisonment. D. Power was counsel for the other prisoner. EFFECT OF CONSENT, ETC. {Continued.) id.) Guilt of the Person Injured. REX V. WEBSTER. King's Bench, 1789. 3 Term Reports, 388. A rule had been obtained calling upon the defendant, who was a justice of the peace for the county of Devon, to show cause 'Accord : Rex v. Hutchinson, 9 Cox C. C, 555 (1864); Reg. v. Kew, 12 Cox C, C, 355 (1872). See also C. v. Boston & L. R. Corp., 134 Mass., 211 (1883). Contra. Reg. v. Birchall, 4 F. & F., 1087 (1866).— Ed. ' ' In Reg. V. Desvignes, tried before Denman, J. , at the last session of the Central Criminal Court, the defendant was charged with the manslaughter of Sarah Ballard, on the night of the twenty-fourth of July last, by so negli- gently managing a steam launch that a skiff containing the deceased and other persons was run down and capsized, and her death caused by drowning. In opening the case, the counsel for the prosecution laid it down broadly, that although contributory negligence would be an element in favor of the defend- ant in a civil case, it was no answer to a charge of manslaughter. Mr. Justice Denman said : ' There is one decision to the contrary (Reg. v. Birchall, 4 F. & F., 1087. Ed.) but I grant that current authority is in the direction you mention. The point, however, has never been settled in the Court of Appeal.' "— L. T., Vol. 70 (Old Series), p. 76 (i88o). Cases on Criminal Law. 97 why an information should not be exhibited against him for having improperly convicted a person for killing a hare, the conviction having been afterwards quashed at the Quarter Sessions. The party applying for the information charged the defendant with very gross misconduct : but Bearcroft, who now showed cause, took a preliminary objec- tion to the Court's entering into the merits, because the party con- victed, who applied for the information, had not made any affidavit of his being a qualified person, and that he had taken out a cer- tificate. And he contended that it was the constant practice of the Court to refuse applications of this sort for acts of injustice done to individuals under pretense of certain improper acts done by them, unless those persons made an exculpatory affidavit denying the fact with which they were charged, as in the case of libels. Erskine and Fanshaw contended that that was not necessary in a case like the present. This application is not made on account of the injury done to the individual, but on account of the injury done to the public, in a gross abuse of a judicial duty. And whatever might be the acknowledged demerits of the suffer- ing party, still the crime was the same in the magistrate, who acted in open violation of his duty. The case of libels is different from the present, because that concerns the individual alone who is the object of it ; but this concerns the general administration of justice, in which every person is interested. Lord Kenyon, Ch. J. The question is not whether the doors of justice shall be stopped, but whether justice shall be approached by this particular avenue. If the defendant has acted improperly, however guilty the party applying might be of the charge which was imputed to him, there are other ways open to him for redress. But we cannot interfere in this particular manner, according to the established rules of the Court, without an affidavit from the party complaining that he is innocent of the fact with which he was charged. I remember an application of this sort made many years ago against Sir John Fielding, for having issued a warrant against one Bernard, upon a charge against him [not upon oath] by the Duke of Marlborough, for sending threatening letters to extort money from the Duke. But the information was denied for want of such an exculpatory affidavit from Bernard. 98 Cases on Criminal Law. AsHHURST, J., agreed, and mentioned several instances where the Court had required exculpatory affidavits from persons who applied for informations for hbels, Vid. R. v. Miles, Dougl. 271, and R. v. Haswell & Bate, Dougl. 372, and had refused to interfere because they were not made. Those cases, he thought, could not be distinguished from the present on principle, because the Court did not interfere on account of the individuals concerned, but for the breach of the public peace. Grose, J.,' agreed that those cases applied in principle to the present, and that it was best to adhere to the established rule. Rule discharged. PEOPLE V. MARTIN. Supreme Court of California, i 894. 102 California, 558. Garoutte, ]} The appellant was convicted of obtaining money and other personal property from one Sarah E. Leonard by false and fraudulent pretenses. The information is laid under sec- tion 532 of the Penal Code, and the false pretenses upon which it is based consisted in the representations to said Leonard by the defendant that a judgment in a large sum of money had been obtained against her in the State of New York, and that her prop- erty would be seized and sold to satisfy such judgment. The information further states that said Leonard beUeved such state- ments, and, so believing, and in order to avoid the application of her property to the satisfaction of such judgment, she was induced to, and did, transfer and deliver said property to defendant. The information contained various allegations other than those just noticed, and a demurrer was offered thereto upon various grounds ; but we think the information well drawn, and our consideration of the alleged defects therein will be limited to the contention of appellant that the allegations we have in sub- stance quoted therefrom constitute a bar to the prosecution of the accused. Possibly the State might be barred from conducting a 1 BuLLER, J. , was sitting for the Lord Chancellor. " Arguments of counsel and part of the opinion relating to another point are omitted. Cases on Criminal Law. 99 criminal prosecution by reasons of the acts of its duly constituted officers representing the State in such matters ; but it is a novel proposition that the acts and conduct of a private individual, even though such individual be what is termed in law the prosecuting witness, could, under any imaginable circumstances, bar the State from the prosecution of a criminal. Appellant states her position as follows : " If, at the time that Sarah E. Leonard placed her property in the possession of the defendant, she believed that there was a valid and existing judgment for seventeen thousand dollars or eighteen thousand dollars against her in the State of New York, and she placed her property out of her hands to avoid its being applied towards the satisfaction of such judgment, her intentions were dishonest, and she was herself guilty of a criminal offense, and became particeps criminis," The case of McCord v. People, 46 N. Y., 472, appears to sup- port the doctrine insisted upon by appellant, but the great weight of authority is to the contrary. It is said by the Court in Com- monwealth V. Morrill, 8 Cush., 571 : " Supposing that to be other- wise, and it should appear that Lynch (the party defrauded) had also violated the statute, that would not justify the defendants ; if the other party has also subjected himself to a prosecution for a like offense, he also may be punished. This would be much better than that both should escape punishment because each deserved it equally." The doctrine of the foregoing case is approved by Mr. Bishop in his work on Criminal Law, section 469, eighth edition. The principle is also declared in the same work at sections 256 and 257. See, also. In re Cummins, 16 Col., 451, 25 Am. St. Rep., 291. From any aspect of the case the contention has no . sound support. If the party defrauded is also guilty of a viola- tion of the law he, too, should be prosecuted, rather than his offense should serve as a shield to the other's crime. The offense is committed against the public, and not against the individual. The guilty party is prosecuted in the interest of the people of the State, and not in the interest of the party defrauded of his prop- erty. There is no principle of law that will bar the State from prose- cuting a criminal because some other person is a particeps criminis. But, viewing the facts of this case in the light of the indictment, the defrauded party committed no offense whatever. How could loo Cases on. Criminal Law. she possibly do so, when the pretenses were all false, and the whole thing was but a scheme of lying and deceit? If such be a crime, she transferred no property to evade its application upon a money judgment which stood against her, for there was no such judgment. Her intention to make a transfer for that purpose avails nothing, for a person's intentions alone violate no law. We have examined the additional assignments of error based upon the rulings of the Court as to the admission and rejection of evidence, and hold none of them to be well taken. For the foregoing reasons, it is ordered that the judgment and order be affirmed. Harrison, J., McFarland, J., De Haven, J., and Van Fleet, J., concurred. Rehearing denied} EFFECT OF CONSENT, ETC. {Continued.) {e) Condonation of the Person Injured. ROBERTS' CASE. Select Pleas of the Crown, Sel. Soc. Pl. tj. Cornish Eyre, 1201. Malcot Crawe appeals Robert, Godfrey's son, of rape. He comes and defends. It is testified that he thus raped her and that she was seen bleeding. By leave of the justices they made concord on the terms of his espousing her. WILLIAMS z;. STATE. Supreme Court of Georgia, 1898. 105 Georgia. 606. Lumpkin, P. J. An indictment against G. W. M. Williams^ found by the grand jury of Screven county and transferred for ^Accord : Cunningham v. St., 61 N. J. L., 67 (1897). See also C. v. Henry, 22 Pa., 253 (1853) ; Reg. v. Hudson, 8 Cox C. C, 305 (i860) ; C. v^ Shober, 3 Pa., Super.Ct., 554 (1897); Gilmore v. P., 87 111. App. 128 (1899); Contra St. v. Crowley, 41 Wis., 271 (1876). — Ed. Cases on Criminal Law. ioi trial to the county court thereof, charged that the accused " did falsely and fraudulently represent to J. C. White that he, the said Williams, had purchased the Cuyler & Woodburn R. R. for the sum of twenty-seven thousand dollars, and that he had raised all of the purchase-price except one hundred dollars, and was then on his way to Savannah to pay the purchase-money. By these false and fraudulent representations the said G. W. M. Williams fraudulently induced the said J. C. White to lend him, the said G. W. M. Williams, the sum of one hundred dollars, which he promised to pay back within three days from the date of the loan. These representations, made as aforesaid, were all false and fraudulent, and were made by the said Williams for the purpose of defrauding the said White, and did in point of fact defraud the said White, contrary to the laws of the said State, the good order, peace and dignity thereof" At the trial, the State introduced testimony substantiating all the material allegations of the indict- ment. It distinctly appeared that in the conversation between the accused and White which resulted in the former's procuring tlie loan, he claimed to be the owner of the railroad in question. For instance, he used the expression, " I don't want to encumber my road," and other language indicating a purpose on his part to create the impression that the railroad was his property. It was further shown by the State that White was actually defrauded of ^loo, and that Williams did not repay the loan as he had agreed to do. Evidence in behalf of the accused tended to show the following : After Williams had been arrested upon a warrant charging him with being a cheat and swindler, and before he was indicted, he made a settlement with White by delivering to him the promissory note of E. E. Wood & Co. for $ioo, which White accepted in full satisfaction of his demand against Williams, and afterwards sold for ;^90. There was a verdict of guilty in the county court, and by his petition for certiorari Williams alleged error as follows : Second,' the judge erroneously charged that "a settlement of the debt by White after the warrant had been sworn out, and the defendant was under arrest or under bond, would be no bar to the prosecution." 1 Only so much of the opinion as relates to condonation is printed. 102 Cases on Criminal Law. We are also of the opinion that the second charge excepted to was free from error. That a fraud was perpetrated upon White plainly appeared. As a result of this fraud he was deprived of the possession and use of his money, and it is apparent from the evidence as a whole that there was a criminal intent on the part of Williams not to return the money at all. That he was sub- sequently forced to make restitution, which, as will have been seen, was only partial, did not relieve him of the consequences of his violation of the criminal statute, which was complete before his arrest. As well might it be said that one guilty of a larceny could escape prosecution by returning the stolen goods after being arrested for the offense. Judgment affirmed. All the Justices concurring.' PEOPLE V. DALRYMPLE. Supreme Court of Michigan, 1885. 55 Michigan, 519. Exceptions before judgment from Berrien. (A. J. Smith, J.) Nov. 19. — Jan. 13. Adultery. Conviction set aside. Attorney General Van Riper for the People. Clapp & Bridgman for respondent. CooLEY, C. J. The Attorney General very properly declines to support the conviction in this case. The prosecution was for adultery, and could only have been instituted on the complaint of respondent's wife. How. Stat., § 9279. The wife made complaint, but afterwards filed a paper in court stating that she was overpersuaded to make it ; that she would not have made it had she not been urged to do so ; that she made it against her own feelings and wishes ; " that she has three little boys of whom the oldest is only seven years of age, and that 1 Accord: Rape, C. v. Slattery, 147 Mass., 423 (1888) ; forgery, St. v. Tull, 119 Mo., 421 (1894); seduction. Barker t/. C, 90 Va., 820 (1894); false pretense, C. v. Brown, 167 Mass., 144 (1896); embezzlement. Dean 7/. St., 147 Ind., 215 (1897). See also, St. v. Frisch, 45 La. Ann., 1283 (1893) ; May 2/. St., IIS Ala., 14 (1896).— Ed. Cases on Criminal Law. ioj, for the sake of her children and her own peace and happiness she most respectfully asks that Madison Dalrymple may be discharged and that said cause may be discontinued." Notwithstanding this request the prosecuting attorney pressed the case to a conviction. Perhaps the letter of the statute was not disregarded in this action, but its spirit was. The conviction must be set aside, and the respondent discharged. The other Justices concurred.' ROHRHEIMER et al., v. WINTERS. Supreme Court of Pennsylvania, 1889. 126 Pennsylvania, 253. Per Curiam.^ An examination of the articles of agreement in this case shows that the money to be paid by Shloss was to be paid "in full satisfaction for the lying-in expenses, maintenance, education and bringing up " of the plaintiffs child, of which the said Shloss was the putative and self-acknowledged father. As this was a perfectly legitimate and entirely proper purpose to be accomplished by the agreement in suit, the contract ought to be enforced unless there is some fatal legal objection to its validity. The only objection alleged against it is the fact that the agreement discloses on its face that it was given to stifle a criminal prosecution for fornica- tion and bastardy. It is true that the plaintiff did release to Shloss all civil and criminal actions, demands and proceedings, which she might have against him, and from this it may be inferred that one of the motives which animated Shloss in making the agreement, might have been the expectation of escaping a criminal prosecution. But it is also true that ever since the year 18 19, the public policy of this commonwealth as indicated by its public laws has not only permitted but favored the settlement of just such cases as this, by iln St. V. Smith, 108 Iowa, 440(1899), under a similar statute, it was held that a husband does not by remarrying his first wife after being divorced from her, with knowledge of adultery committed by her during the former marriage, condone the offense so as to bar a criminal prosecution against her partner in adultery. — Ed. ^ The opinion only is printed. 104 Cases on Criminal Law. the voluntary agreement of the parties. We have several times held that contracts between the reputed father and mother of the child, for the settlement of claims founded upon fornication and bastardy, are not illegal and will be enforced. A noted instance of this kind was the case of Maurer v. Mitchell, 9 W. & S., 69, in which Chief Justice Gibson said, speaking of the act of 18 19: "Thus the offence, like assault and battery with which it was associated in that statute, became little more than a private wrong ; and when the legislature authorized the parties to treat it as such between themselves, the contract certainly became legal so far as they were individually concerned." This act certainly continued in force until i860, and, as the criminal code enacted in that year also sanctioned the settlement of misdemeanors, an unbroken practice has prevailed in all parts of the State, for a great many years, of settling cases of this kind by the voluntary agreement of the parties. In view of this long continued practice and of the judicial and legislative sanction which it has received, and in view also of the fact that the chief subject matter of the contract is the support of the child, we cannot say that such contracts are opposed to the public policy of the State. As there is no other reason for refusing the enforcement of this particular agreement we think it should prevail. Judgment affirmed. Cases on Criminal Law. 105 EFFECT OF CONSENT, ETC. {Continued:) (/) Condonation of the State. " If any felons will confess their crimes and accuse others and become approvers, let them be put out of penance, and let their confessions be presently received and enrolled by the coroner, and from that day forward let them have of the sheriffs three half pence a day for their support." — Britton, 12. COMMONWEALTH v. ST. JOHN. Supreme Judicial Court of Massachusetts, 1899. 173 Massachttsetts, 566. Morton, J.' The decisive question in each case is the same and the cases may therefore properly be considered together. The question is whether the immunity that was promised to the defendants by the city marshal and by Boyle, the chief detective of the police department of Springfield, can be pleaded in bar of the indictment against them. We think that it cannot. The immunity and protection which may be promised from the consequences of crime on condition of a full disclosure and readiness to testify are not a matter of right, but rest in the last resort on the sound judicial discretion of the court having final jurisdiction to sentence, and cannot therefore be pleaded in bar. Wight v. Rindskopf, 43 Wis., 344 ; State v. Moody, 69 N. C, 529 ; State v. Graham, 12 Vroom, IS; Rex v. Rudd, Cowp., 331; Whart. Crim. Ev. §§ 439, 443 ; 3 Russ. Crimes, (9th Am. ed.) 599. When such promises are made by the public prosecutor or with his authority, the court will see that due regard is paid to them, and that the public faith which has been pledged by him is duly kept. The prosecuting officer has also the power to enter a nolle prosequi. It appears in each case that neither the city mar- shal nor Boyle had any authority from the District Attorney to 1 The opinion only is printed. io6 Cases on Criminal Law. make the promises or hold out the inducements which they did. There is nothing in either bill of exceptions tending to show that the District Attorney had anything to do with the prosecution in the police court. Neither of the defendants appeared before the grand jury, although they were at the court house from day to day when the grand jury was in session, ready to testify, relying on the promises of immunity made by the city marshal and by Boyle. And there is nothing tending to show that there was any expecta- tion or understanding on the part of the District Attorney that either was to testify as a government witness in the Superior Court, and neither did so testify. If an appeal had been made to the clemency of the court, it would no doubt have been competent for the court to take into consideration the inducements which had been held out and the promises that had been made, if any, by the city marshal and by Boyle. But what was done was to plead the promises and inducements in bar. A question of law was thus presented, and we think that the ruling of the court was clearly right. Exceptions overruled^ EFFECT OF CONSENT, ETC. {Continued:) (£■) Custom. LAWRENCE v. STATE. Court of Appeals of Texas,- 1886. 20 Texas Appeals, 536. The indictment in this case charged the appellant with the theft of two hogs, of the aggregate value of ^40, the property of B. C. Hutchins, in Gonzales county, Texas, on the ist day of Where it is provided by statute that no case shall be dismissed without permission of the presiding judge, an agreement of the district attorney to dismiss a case, provided the defendant will become a witness for the State, is not binding on the State if the judge does not consent thereto. See Tullis V. St., 52 S. W. (Tex.) 83 (1899). By statutes of limitation many States prescribe that prosecutions must be brought within a specified time after the commission of the offense. — Ed. Cases ON Criminal Law. 107 December, 1883, His conviction, and the penalty assessed, are expressed in the verdict, to which allusion is made in the opinion as follows : " We, the jury, find the defendant guilty of theft of property of value of less than ;^20, and assess his punishment at six months confinement in the county jail, and ^400 fine."^ White, Presiding Judge. One theory of the defense in this case was that appellant was the hired hand of his brother. His brother, who was a witness, testified to that fact. After he had so testified, defendant further proposed to prove by him that he had instructed his brother, the defendant, to kill all unmarked grown hogs ; and further, to prove by the witness that it was a general custom of the country that any one had a right to kill all unmarked hogs over twelve months old running on the range ; and the court refused to admit such evidence, and defendant .served a bill of exceptions to the ruling and claims the ruling as error. Not only so, but upon this point he claims that additional error was com- mitted by the court in refusing a special requested instruction as follows : " That the statutes of this State require that all hogs, sheep and goats shall be marked with the ear-mark of the owner, on or before they are six months old, and if the jury find from the evidence that the hogs in controversy were over six months old, and were unmarked, and that defendant killed them not knowing them to be the property of Hutchins, then the defendant would not be guilty of theft, and the jury should acquit." In order to constitute theft it is not essential that the thief should know who is the owner of the property he has stolen, and such a doctrine was not intended to be announced as a general rule under the facts upon which the case of Boyd v. The State, 18 Texas Ct. App., 339, was decided. On the contrary, theft, or "a fraudulent taking of the property of another, embraces the idea that the taker knew that it was not his own, and also that it was done to deprive the true owner of it," Smith v. The State, 42 Texas, 444, whether he knew who the true owner was or not. No error was committed in refusing to admit proof that it was a general custom of the country that any one had the right to kill all unmarked hogs over twelve months old, running on the range. ' The evidence in this case is omitted io8 Cases on Criminal Law. It is true that the law requires that the owner shall place his ear- mark upon hogs, sheep and goats, on or before they are six months old. Rev. Stats., Art. 4558, but a failure to do so does not affect, much less destroy, the owner's right to his property. His recorded mark is not even required as the best evidence of ownership, as is the case with brands. Rev. Stats., Art. 4561 ; Dixon v. The State, 19 Texas, 134; Johnson v. The State, l Texas Ct. App., 333 ; Love v. The State, 15 Texas Ct. App., 563 ; Dreyer v. The State, II Texas Ct. App., 632. To fraudulently take such prop- erty when unmarked is as much theft as if it had been marked. This is the rule of the law, and ignorance of the law is no excuse. Penal Code, Art. 14. A rule of law can never be subverted by local custom. To sanction the doctrine that it could would be to unsettle the law, would open for discussion and neighborhood proof not the facts but the law, and allow such neighborhood the right to claim a distinct law of its own, thereby destroying the beauty of the law which consists in the uniformity of its action throughout the land." Lockhart v. Dewees, i Texas, 535 ; Mc- Kinney v. Fort, 10 Texas, 220; White & Wilson's Ct. App. Civil Cases, §§272, 353.696. It would seem that the case of Dibbs v. The State, 43 Texas, 650, announces a different doctrine, and in so far as it does it is hereby overruled. It is folly to talk about an individual gifted with enough intelligence to render him responsible for his acts hon- estly believing that he has the right to claim and appropriate all the unmarked yearlings, sheep, hogs and goats in Texas that are a year old. Such a custom would be a monstrosity which the law would never tolerate. It was not error to refuse defendant's special requested instruction as above quoted. One of the instructions given by the court to the jury was as follows : " The jury are further instructed that if they believe from the evidence that the defendant took the hogs charged in the in- dictment, yet that he so took them with an honest belief, although he may have been mistaken in such belief, that he had the right or the authority to do so, or if the evidence on this point is such as to raise in your minds a reasonable doubt as to whether the defend- ant did believe he had the right to take such hogs, then in such case you will give him the benefit of such doubt and acquit him." The instruction fully and sufficiently covered the important Cases on Criminal Law. 109 material issues in the case with reference to which the appellant is here complaining. If he wished more specific instructions upon these points he should have asked them, and presented them in such shape as that the court could give them. Whilst a court may qualify or modify an instruction which is asked, so as to make it present the law as the court conceives the law to be, yet the court is not bound to qualify or modify an illegal or erroneous in- struction, but may refuse it outright. We are of opinion that the verdict of the jury is sufficiently definite and specific under our present statute. Penal Code, Art., 748. There is some conflict in the evidence but if the testimony of the State's witnesses is be- lieved, the proof is amply sufficient to support the verdict and judgment, and the judgment is affirmed. Affirmed} SECTION X. EFFECT OF COERCION. (a) Coverture. If a ceorl steal a chattel and bear it into his dwelling, and it be attached therein, then shall he be guilty for his part, without his wife, for she must obey her lord. If she dare to declare by oath that she tasted not of the stolen property, let her take her third part. Laws of King Inc. , Cap. 57. A wife, however, who is the spouse of a thief, shall not be liable for the act of the man, because she ought not to accuse her husband nor to disclose his theft or felony, since she has not any power over herself, but her husband has. She ought not, how- ever, to consent to the felony of her husband, nor to be his con- federate. * * * It is not, therefore, in every case that the woman is to be set free, on account of her counsel, aid, or consent, accord- ing as they have been accomplices in the crime, they shall be par- takers in the punishment. Bracton, Book j, Chap, 32. 1 Accord: On indictment for larceny, C. v. Doane, i Cush., 5 (1848) ; riot, Bankus v. St. 4 Ind., 114 (1853) ; indecent exposure, Reg v. Reed, 12 Cox C. C. I (1871); Hendry v. St, 39 Fla., 235 (1897); embezzlement, BollnT/. St. 51 Neb., 581 (1897).— Ed. no Cases on Criminal Law. SARAH CONNOLLY'S CASE. Durham Assizes, 1829. 2 Lewin, 229. The prisoner was indicted for uttering base coin. The evidence was that she had gone from house to house uttering base coin, and that her husband accompanied her to the door, but did not go in. Bayley, J. directed the jury to infer that she was acting under the coercion of her husband, and to find her not guilty. REX V. HUGHES. Lancaster Assizes, 18 13. 2 Lewin, 229. Martha Hughes, the wife of Patrick Hughes, was indicted for forging and uttering three £2 Bank of England notes. James Piatt proved that he went to the shop of the prisoner's husband, in consequence of a conversation which he had had some time before with the husband. The husband was not present. The prisoner beckoned him to go into an inner room, into which she followed him, when he told her what her husband had said to him. They then agreed about the business, and the witness bought of the prisoner three £2 notes at ;^i 4s. each. The witness paid her four £\ notes and was to receive Ss. in change. When he was putting the notes into his pocketbook, and before he received the change, the husband put his head into the room and looked in, but did not come in or interfere in the busi- ness further than by saying, " Get on with you ! " When the wit- ness and the prisoner returned into the shop the husband was there and the prisoner gave him the change, and both the prisoner and the husband cautioned him to be careful. On these circumstances being proved. Cross, for the prisoner, objected that they clearly established that she acted under the coercion of her husband. Supposing both husband and wife on their trial, this evidence would be sufficient to convict him ; and he Cases on Criminal Law. hi submitted that, if so, she must in this case be acquitted. He cited 2 East's P. C, 259 : " If a wife be guilty of larceny in company with her husband, both of them may be indicted, and if the husband be convicted the wife shall be acquitted, i Hale 46 ; Kelynge, 37. " But if the husband be acquitted, and it appear that the felony were by her own voluntary act (by which must be under- stood that her husband, if present, had no knowledge of or par- ticipation in the fact), she may, upon the same indictment, be convicted, for the charge is joint and several. The acquittal or conviction, therefore, of the husband, regulates that of the wife. Here the husband might have been convicted. Thompson, B. (stopping Park and Rain) : " I am very clear as to the law on this point. " The law, out of tenderness to the wife, if a felony be com- mitted in the presence of the husband, raises a presumption prima facie, and prima facie only (as is strongly laid down by Lord Hale), that it was done under his coercion. But it is absolutely necessary that the husband should be actually present and taking a part in the transaction. " Here it is entirely the act of the wife. It is, indeed, in con- sequence of a communication previously with the husband, that the witness applies to the wife, but she is ready to deal, and has on her person the articles which she delivers to the witness. "There was a putting off before the husband came; and it was sufficient if, before that time, she did that which was necessary to complete the crime. The coercion must be at the time of the act done, and then the law, out of tenderness, refers it, prima facie, to his coercion ; but when it has been completed in his absence, no subsequent act of his (although it might possibly make him an accessory to the felony of his wife) can be referred to what was done in his absence." Objection overruled. " When coercion is once established, it should shield the wife — at least until it appears that she has been relieved from its influence — and we do not think that after being coerced into giving assistance to her husband, that simply because she may be the most active in consummating the offence, that this should, as matter of law, make her guilty. On the contrary, the question should still depend on the cause of her increased activity, and not upon the fact of such activity. The presence and constraint of her husband may still be the cause and not her own wickedness.'! Simpson, C. J., in St. v. Hous- ton, 29 S. C, 108 (1888). 112 Cases on Criminal Law. SEILER V. PEOPLE. Court of Appeals of New York, 1879, 77 New York, 41 1. FoLGER, J.^ The mostthatcan be claimed forthe evidence in this case is that the plaintiff in error was in company with the man Brown, just before and just after the larcenous act. She was not near to him when it was done. He was 200 feet or more away. It may be that his eye was upon her, and that she knew it ; no more than that. It was not error for the court, therefore, to state to the jury the distance off which Brown was shown to be ; especially as it was stated, on which to remark to them, that it was for them to say whether that fact did not rebut the presumption that she was coerced by him, and to find whether she was in his presence. The request to charge, that if the four conspired to steal, she must be presumed to be coerced by him, if when she entered the store he was at the entrance, was well denied. His command or procurement would not excuse her. The theft was not done while he was at the entrance. He had passed on, before that. It is the presence of the husband at the thieving act, which raises the presumption. The court was right in telling the jury that the questions were : Whether Brown was her husband ; and was present when the theft was done. It was right in refusing to charge, that the facts were proven from which coercion was to be presumed ; for the presence of Brown at the act was not proven. There was no error on the trial. The judgment should be affirmed. All concur. Judgment affirmed. ^ ^Part of this case is omitted. ^Under a statute allowing, but not compelling a wife to testify in a crim- inal case in which her husband is defendant if, in giving her testimony, her husband being present, she commits perjury, the presumption of coercion does not arise. C. v. Moore, 162 Mass., 441 (1894); see also Smith v. Meyers, 54 Neb., i (1898); nor does the presumption arise on an indictment for keeping a gaming house. Rex v. Dixon, 10 Mod, 335 (1715); or a baiii^y house, Reg. v. Williams, 10 Mod., 63 (1711); even though her husband resided in the house and hired, furnished, and provided for it. C. t/. Cheyney, 114 Mass., 281 (1873). — Ed. Cases on Criminal Law. i ij Gantt, p. J., in St. v. Ma Foo, i lo Mo. 7, (1891) : "Learned counsel for defendant desire us to ingraft an additional modifica- tion on this rule of evidence, and require the State to go further and prove that the husband not only was not the inciter or re- sponsible criminal agent in the commission of the crime, but that he actually disapproved it, and, in the absence of evidence of his disapproval, the wife must be acquitted. This is not the law. There is little in the present organization of society upon which the prima facie presumption itself can stand, and certainly nothing calling for any extension of the presumption." " Before Somerville's case, 26 Eliz., and Somerset's case, A. D. 161 5, I find no exception to the general rule that the coercion of the husband excuses the act of the wife. (See 27 Ass. 40, Stamf. P. C, 26, 27, 142 ; Poulton de pace Regis., 130 Br. Ab. Coron.^ 108 ; Fitz. Ab. Coron., 130, 180, 199.) But after these cases I find the following exceptions in the books : Bac. Max., 57, except treason only, Dalton, c. 147, treason and murder, citing for latter Mar. Lect. 12 (which I conceive refers to the reading of Marrow, a Master in Chancery, in the time of Henry VII. See Willes v. Bridger, 2 B. and A. 282). I Hale, P. C. , pp. 45, 47, treason, murder and homicide; and p. 434, trea- son, murder and manslaughter; Kel. 31, an obiter dictum, murder only ; Hawk., b. I, c. l, s; 11, treason, murder and robbery; Blac. Com., vol. i, p. 444, treason and murder ; vol. iv, p. 29, treason and mala in se, as murder and the like. Hale therefrom alone excepts manslaughter, and Hawkins introduces robbery, without any authority for so doing; and, on the contrary, in R. V. Cruse, 8 C. and P. 545, a case is cited, where Burrough, J. , held that the rule extended to robbery." It seems long to have been considered that the mere presence of the husband was a coercion (see 4 Blac Com., 28), and it was so contended "in R. v. Cruse; and Bac. Max. 56, expressly states that a wife can neither be principal nor accessory by joining with her husband in a felony, because the law intends her to have no will ; and in the next page he says: " If husband and wife join in committing treason, the necessity of obedience doth not excuse the wife's offense, as it does in felony." * * * Dalton cites the exception from Bacon without the rule, and Hale follows Dalton, and the other writers follow Hale ; and it seems by no means improb- able that the exceptions of treason and murder, which seem to have sprung from Somerville' s and Somerset' s cases, and which were probably exceptions to the rule as stated by Bacon, have been continued by writers without advert- ing to their origin, or observing that the presence of the husband is no longer considered an absolute excuse, but only affords a prima facie presumption that the wife acted by his coercion." Russell on Crimes (^International Edition), p. 146. Note by Greaves. 114 Cases on Criminal Law. EFFECT OF COERCION {Continued). (3) Command. MEMORANDUM, 1660. Kelyng, 13. Upon the trial of one Axtell, a soldier who commanded the guards at the King's Tryal, and at his murder ; he justified that all he did was as a soldier, by the command of his superior officer, whom he must obey or die. It was resolved that was no excuse, for his superior was a traitor, and all that joined him in that act were traitors, and did by that approve the treason ; and where the command is traitorous, then the obedience to that command is also traitorous. RIGGS V. STATE. Supreme Court of Tennessee, 1866. 3 Coldwell, 85. Theplaintififinerror, was convicted at the August Term, i866, of murder in the second degree, and sentenced to fifteen years imprisonment in the penitentiary ; from which he appealed. Judge James P. Swan, presiding. R. M. Barton and McFarland, for the plaintiff in error. Trowbridge and Thos. H. Coldwell, Attorney General, for the State. Shackelford, J., delivered the opinion of the Court. The plaintiff in error was indicted in the Circuit Court of Jef- ferson County, for the killing of Captain Thornhill. A change of venue was had to the County of Grainger. At August Term, 1866, of the Circuit Court of Grainger County, he was convicted by a jury, of murder in the second degree, and sentenced to fifteen years imprisonment in the penitentiary. A new trial was moved for, which was overruled, and an appeal taken to this Court. The Court, among other things not excepted to, charged the jury in substance as follows : " A soldier in the service of the United States is bound to obey all lawful orders of his superior Cases on Criminal Law. i i 5 officers, or officers over him, and all he may do in obeying such lawful orders, constitutes no offense as to him. But an order, illegal in itself, and not justified by the rules and usages of war, or in its substance being clearly illegal, so that a man of ordinary sense and understanding would know, as soon as he heard the order read or given, that such order was illegal, would afford a private no protection for a crime committed under such order, provided the act with which he may be charged, has all the ingre- dients in it which may be necessary to constitute the same a crime in law. Any order given by an officer to his private, which does not expressly and clearly show on its face, or in the body thereof, its own illegality, the soldier would be bound to obey, and such order would be a protection to him. No person in the military service has any right to commit a crime in law, contrary to the rules and usages of war, and outside of the purposes thereof; and the officers are all amenable for all crimes thus committed, and the privates likewise are answerable to the law for crimes committed in obeying all orders illegal on their face and in their substance, when such illegality appears at once to a common mind, on hear- ing them read or given." We think there is no error in this charge. It is a well-settled principle, a soldier is not bound to obey an illegal order. If he does, and commits an offense, it is no justifica- tion to him, and he is liable to be proceeded against and punished. This principle was settled in the Supreme Court of the United States, in the case of Mitchell v. Harmon, 13 Howard, 129, in which it was held a military officer cannot rely on an apparently unlawful order of his superior, as a justification. The same principle was recognized and settled in the Court of King's Bench, reported in i Cowp., 180. In this case, a captain in the English navy, by orders of the British admiral, pulled down the houses of some Suttlers on the coast of Nova Scotia, who were supplying the sailors with spirituous liquors, and the health of the sailors was thereby much injured. The motive was a laudable one, and done for the public service. The Courts say, it was an invasion of the rights of private property, without the authority of law, and the officer, who executed the order, was held liable. This being the rule in civil causes, the principle would be more strictly applied in criminal ones. No order, if any was given, could justify the killing of Captain Thornhill, and the parties who did the act are ii6 Cases on Criminal Law. amenable to the criminal law. There being no error in the charge of the Court, the question arises : Do the facts in the record sus- tain the verdict of the jury ? And under the rulings of this Court, it is made our duty, in criminal causes, to examine the proof, and see if it warrants the conviction.^ The proof does not satisfy us the prisoner aided or abetted in the unlawful act of killing. A private soldier when detailed by his Superior officer has no discretion. By the rules of war he is bound to obey the orders of those in command. When he enters the service, unconditional submission to the lawful orders of his superior officers is a duty imposed upon him by his oath and the articles of war. The principle of law, " when men are assembled for an illegal purpose, and the commission of an offense by any one of the party is the act of the whole," is not applicable to this Case. The plaintiff in error being a private soldier, being detailed, was bound to obey the lawful order. The going to Richard Thornhill's without a knowledge of the purpose for which the force was detailed, was not an illegal act ; he had no right to inquire of the officer the object and purpose of the detail, or what he had in view ; and if he was present, unless he participated in the killing- by firing, or aided and abetted in the act of killing, he would not be criminally responsible. It is stated as a principle of law, in i Hale, Pleas of the Crown, 444, and which we recognize arid approver "Although if many come upon an unlawful design, and one of the company kill the adverse party, in pursuance of that design, all are principals ; yet if many be together upon a lawful account, and one of the company kill another of an adverse party, without any particular ?ibetment of the rest to this fact of homicide, they are not all guilty that are of the company, but only those that gave the stroke, or actually abetted them to do it." We forbear to comment further upon the testimony, as the case will undergo another investigation before a jury. We are not satisfied from the proofs in this record, with the verdict of the jury. The judgment will be reversed, and a new trial awarded. ' ^ Part of the opinion is omitted. 'Accord. U. S. v. Jones, 3 Wash. C. C, 209 (1813) ; In re Fair, 100 Fed. R., 149 (1900). See for command of master, Sanders v. St, 26 S. W. (Tex.), 62 (1894);. Parent, P. v. Richmond, 29 Cal., 414 (1866). Compare Reg. v. Boober, 4 Cox C. C, 272 (1850).— Ed Cases on Criminal Law. i 17 EFFECT OF COERCION. {Continued.) (c) Threats. UNITED STATES v. VIGOL. United States Circuit Court, District of Pa, 1795. 2 Dallas, 346. Indictment for high treason in levying war against the United States. The prisoner was one of the most active of the insurgents in the western counties of Pennsylvania, and had accompanied the armed party who attacked the house of the excise officer (Reigan's) in Westmoreland, with guns, drums, &c., insisted upon his surren- dering his official papers, and extorted an oath from him that he would never act again in the execution of the excise law. The same party then proceeded to the house of Wells, the, excise officer in Fayette County, swearing that the excise law should never be carried into effect, and that they would destroy Wells and his house. On their arrival Wells had fled and concealed himself, whereupon they ransacked the house, burned it, with all its contents, including the public books and papers ; and afterwards discovering Wells, seized, imprisoned and compelled him to swear that he would no longer act as excise officer. Witnesses were Hkewise examined to establish that the general combination and scope of the insurrection were to prevent the execution of the excise law by force ; and in the course of the evidence, the duress of the marshal of the dis- trict, the assembling at Couche's, the burning of General Neville's house, &c., were prominent features. Patterson, Justice. ' The counsel, for the prisoner have endeavored, in the course of a faithful discharge of their duty, to extract from the witnesses some testimony which might justify a defence upon the ground of duress and terror. But in this they have failed, for the whole scene exhibits a disgraceful unanimity; and with regard to the prisoner, he can only be distinguished for a guilty pre-eminence in zeal and activity. It may not, however, be useless on this occasion, to observe that the fear that the law recognizes as ^ Part of this case is omitted. ii8 Cases on Criminal Law. an excuse for the perpetration of an offense must proceed from an immediate and actual danger, threatening the very life of the party. The apprehension of any loss of property by waste or fire, or even an apprehension of a slight or remote injury to the person, furnish no excuse. If, indeed, such circumstances could avail, it would be in the power of every crafty leader of tumults and rebellion to indemnify his followers by uttering previous menaces ; an avenue would be forever open for the escape of unsuccessful guilt, and the whole fabric of society must inevitably be laid prostrate. Verdict, Guilty} BAIN V. STATE. Supreme Court of Mississippi, 1890. 67 Mississippi, 557. From the Circuit Court of Attala county. Hon. C. H. Campbell, Judge. The case is stated in the opinion. Allen &• McCool, for appellant. It cannot be the law that nothing is " duress " but a fear of being killed or receiving some serious bodily harm while testifying in court. If so, there can be no legal duress to protect a witness whose evidence is untrue, since there is not an example in all juris- prudence to support such a view. Antecedent circumstances were preying on the mind of the defendant at the time he testified. His calamity placed him in agonizing fear, and hence his clean breast for the State. An improper influence may be exerted in court as well as out of it. Serpentine z/. The State, i How. (Miss.), 256. Slight expressions engendering hope or fear, will avoid the false oath. 37 Mis., 288 ; 4 Mich., 607. The burden of showing duress rested on the defendant, and he should have had liberty to explain by aliunde proof. 41 Am. Rep., 296 ; 28 Min., 426; 9 Gray, 109 ; 15 lb., 495. Improper influence once shown to exist is presumed to con- tinue, unless lapse of time or other circumstances sufficient to dispel the influence of hope or fear have intervened, and in such 1 Accord: Treason, Respublica v. M'Carty, 2 Dall., 86 (1781) ; Mutiny, U. S. v. Haskell, 4 Wash. C. C, 402 (1823).— Ed. Cases on Criminal Law. 119 case any subsequent confessions will be rejected unless they are shown to be voluntary, i Greenleaf Ev., § 221 ; 37 Miss. 288; 44 lb., 333, 382 ; Roscoe, Crim. Ev. (7 ed.), 48.^ Cooper, J., delivered the opinion of the court. The appellant has been indicted and convicted of the offense of perjury. The sole defense attempted to be proved was that appellant's life had been threatened by one Veto Dodd, unless he should go into court and testify so as to criminate himself and certain other persons who were suspected of having- murdered a negro man and his wife, tenants upon the farm of Dodd. The court below excluded the evidence tendered to show the threats upon the ground that it was not proposed to be shown that the threats were made at the instant of delivery of the testimony nor in the presence of the court in which the appellant was testifying. This ruling of the court is the foundation of the errors assigned, the assignments of error other than the first presenting the same ques- tion in different forms. Counsel for appellant press upon our attention with apparent confidence that numerous class of cases in which the credibility of confessions or of testimony has been assailed and impeached by the circumstances under which the confessing person or witness spoke. We fail to perceive their application to the case at bar, in which the single question is, whether a man may justify or excuse deliberate perjury against the life and liberty of others on the ground that he was coerced to the perjury by fear engendered by the threats of others. We are not aware that a similar question has ever been pre- sented for decision. We can conceive of cases in which an act, criminal in its nature, may be committed by one under such circumstances of coercion as to free him from criminality. The impelling danger, however, should be present, imminent and impending, and not to be avoided. Such was not the character of the duress here, and the appel- lant was not only possessed of the power and right of protecting himself, but he also could have appealed to the law to shield him from the threatened danger. ■■ Part of the argument of counsel is omitted. 120 Cases on Criminal Law. If Dodd, by whom the threats were made, should attempt to carry them into execution, the appellant might lawfully oppose force to force, and if necessary might, in the defense of his person, lawfully slay his assailant. But if appellant feared the superior strength or courage of Dodd, he might have invoked the protec- tion of the court. The law has made ample provision for the protection of persons and property under precisely the circumstances named by appellant. By section 3126 of the code it is provided that, " whenever complaint is made under oath by a credible person to any justice of the peace that any person has threatened to commit any offense punishable by the laws of this State against the person or property of another, and such justice is satisfied that there is good reason to fear the commission of such ofTense, he may issue his warrant to arrest and bring the person complained of before himself, or some other justice of the peace, and the justice of the peace before whom such person may be brought shall examine into said charge, and if there be just reason to apprehend that such person will commit the offense, he shall be required by such justice to enter into bond or recognizance in such sum, and with such sureties, and for such time, not exceeding twelve months, as such justice may prescribe, conditioned to keep the peace towards the person against whom or whose property there is reason to fear the offense may be comitted." If default be made in giving the bond required by the justice, it is provided by section 3 128 that the person so failing shall be by the officer committed to jail until the bond be given, or until the expiration of the time for which he was required to furnish such security. The social system would be subverted and there would be no protection for persons or property if the fear of man, needlessly and cravenly entertained, should be held to justify or excuse breaches of the criminal laws of the State, and to excuse or justify the crime of perjury. The judgment is affirmed. Cases on Criminal Law. i 2 1 ARP V. STATE. Supreme Court of Alabama, 1892. 97 Alabama, 5. Coleman, J. At the July Term, 1892, of the Circuit Court, the defendant was convicted of murder in the first degree, and sentenced to suffer death. ^ The testimony of the defendant and the evidence admitted as confessions, showed that he took the Hfe of the deceased without provocation on the part of the deceased, and when there was no real or apparent necessity for the act so far as such necessity pro- ceeded from the deceased. According, to his own statement, the object to be accomphshed by taking the life of the deceased was to prevent deceased from appearing as a witness against him, and one Burkhalter and Leith, charged with retailing whiskey without a license. The defendant's excuse for the homicide was that Burkhalter and Leith threatened to take his life unless he killed ie7is. Ignorance of thelawis no excuse for the violation of it, and if a person choose to run the risk of committing a felony, he or she must take the consequences if it turn out that a felony has been committed. Great stress is laid by those who hold that the conviction should be quashed upon the circumstance that the crime of bigamy is by the statute declared to be a felony and punishable with penal servitude or imprisonment with or without hard labor for any term not exceeding two years. If the crime had been declared to be a misdemeanor punishable with fine or imprisonment, surely the construction of the statute would have been, or ought to have been the same. It may well be that the Legislature declared it to be a felony to deter married persons from running the risk of committing the crime of bigamy, and in order that a severe pun- ishment might be inflicted in cases where there were no mitigating circumstances. No doubt circumstances may and do affect the sentence, even to the extent of the punishment being nominal, as it was in the present case, but that is a very different thing from disre- garding and contravening the plain words of the Act of Parliament. The case is put by some of my learned Brothers of a married man leaving his wife and going into a foreign country intending to settle there, and it may be afterwards to send for his wife and children, and the ship in which he goes is lost in a storm with, as is supposed, all on board, and after the lapse of say a year, and no tidings received of any one having been saved, the underwriters pay the insurance on the ship, and the supposed widow gets probate of her husband's will and marries and has children, and after the lapse of several years the husband appears, it may be a few days before seven years have expired, and the question is asked, would it not be shocking that in such a case the wife could be found guilty of bigamy? My answer is that the Act of Parliament says in clear and express words, for very good reasons as I have already pointed out, that she is guilty of bigamy. The only shocking fact would be that some one for some purpose of his own had instituted the prosecu- tion. I need not say that no public prosecutor would ever think of doing so, and the judge before whom the case came on for trial would, as my brother Stephen did in the present case, pass a 19° Cases on Criminal Law. nominal sentence of a day's imprisonment (which in effect is imme- diate discharge) accompanied, if I were the judge, with a disallow- ance of the costs of the prosecution. It may be said, but the woman is put to some trouble and expense in appearing before the magistrate, who would of course take nominal bail, and in appearing to take her trial. Be it so, but such a case would be very rare indeed. On the other hand, see what a door would be opened to collusion and mischief if, in the vast number of cases where men in humble life leave their wives and go abroad, it would be a good defence for a woman to say and give proof, which the jury beheved, that she had been informed by some person upon whom she honestly thought she had reason to rely, and did believe, that her husband was dead, whereas in fact she had been imposed upon and her husband was alive. What operates strongly on my mind is this, that if the Legis- lature intended to prohibit a second marriage in the lifetime of a former husband or wife, and to make it a crime, subject to the proviso as to seven years, I do not believe that language more apt or precise could be found to give effect to that intention than the language contained in the 57th section of the Act in question. In this view I am fortified by several sections of the same Act, where the words "unlawfully" and "maliciously and unlawfully " are used (as in s. 23), and by a comparison of them with the section in question (s. 57), where no such words are to be found. I espe- cially rely upon the 55th section by which it is enacted that "whosoever shall unlawfully" (a word not used in s. 57) "take or cause to be taken any unmarried girl being under the age of sixteen years out of the possession of her father or mother or any other person having the lawful care or charge of her, shall be guilty of a misdemeanor." Fifteen out of sixteen judges held in the case of Reg. v. Prince, Law Rep., 2 C. C. R., 1 54, that, not- withstanding the use of the word " unlawfully " the fact of the prisoner believing and having reason to believe that the girl was over sixteen afforded no defence. This decision is approved of upon the present occasion by five judges, making in all twenty against the nine who are in favor of quashing the conviction. To the twenty I may, I think, fairly add Tindal, C. J., in Reg. v. Robins, i C. & K., 456, and Willes, J., in Reg. v. Mycock, 12 Cox C. C, 28. Cases on Criminal Law. 191 I rely also very much upon the 5th section of the Act passed in 1885 for the better protection of women and girls, 48 & 49 Vict. c. 69, by which it was enacted that " any person who unlaw- fully, and carnally knows any girl above thirteen and under sixteen years shall be guilty of a misdemeanor," but to that is added a proviso that " it shall be a sufficient defence if it be made to appear to the Court or j ury before whom the charge shall be brought that the person charged had reasonable cause to believe and did believe that the girl was of or above the age of sixteen." It is to be observed that notwithstanding the word " unlawfully " appears in this section it was considered necessary to add the proviso, without which it would have been no defence that the accused had reasonable cause to believe and did believe that the girl was of or above the age of sixteen. Those who hold that the conviction in the present case should be quashed really import into the 57th section of the 24 & 25 Vict. c. 100, the proviso which is in the 5th section of the 48 & 49 Vict. c. 69, contrary, as it seems to me, to the decision in Reg. v. Prince, Law Rep., 2 C. C. R., 154, and to the hitherto undisputed canons for construing a statute. It is said that an indictment for the offence of bigamy com- mences by stating that the accused feloniously married, &c., and consequently the principle of mens rea is applicable. To this I answer that it is to the language of the Act of Parliament and not to that of the indictment the Court has to look. I consider the indictment would be perfectly good if it stated that the accused, being married, married again in the lifetime of his or her wife or husband contrary to the statute, and so was guilty of felony. I am very sorry we had not the advantage of having the case argued by counsel on behalf of the Crown. My reason for abstain- ing from commenting upon the cases cited by Mr. Henry in his very able argument for the prisoner is because the difference of opinion among some of the judges in those cases is as nothing compared with the solemn decision of fifteen out of sixteen judges in the case of Reg. v. Prince, Law Rep., 2 C. C. R., 154. So far as I am aware, in none of the cases cited by my learned Brothers was the interest of third parties, such as the fact of their being children of the second marriage, involved. I have listened with attention to the judgments which have been delivered, and I have 192 Cases on Criminal Law. not heard a single observation with reference to this, to my mind, important and essential point. I am absolutely unable to distin- guish Reg V. Prince, Law Rep., 2 C. C. R., 154, from the present case, and, looking to the names of the eminent judges who consti- tuted the majority, and to the reasons given in their judgments, I am of opinion upon authority as well as principle that the conviction should be affirmed. The only observation which I wish to make is (speaking for myself only), that I agree with my learned brother Stephen in thinking that the phrases " mens rea " and " non est reus nisi mens sit rea " are not of much practical value, and are not only "likely to mislead," but are " absolutely misleading." Whether they have had that effect in the present case on the one side or the other it is not for me to say. I think the conviction should be affirmed. My brothers Denman, Pollock, Field, and Huddleston agree with this judgment, but my brother Denman has written a short opinion of his own, with which my brother Field agrees.* Conviction quashed? HALSTEAD v. STATE. Court of Errors and Appeals of New Jersey, 1879. 41 New Jersey Law, 552. The defendant was the director of the board of freeholders of the county of Hudson, and was indicted for a violation of the act entitled " A supplement to an act entitled ' An act for the punishment of crimes,'" approved March 27th, 1874, which is as follows, viz. : The act under which the indictment is sought to be sustained is found in the laws of 1876, page 16 as follows : "I. Be it enacted by the Senate and General Assembly of 1 Dissenting opinion of Denman, J., is omitted. ^ Accord: Adultery, Banks v. St., 96 Ala. 78 (1891). Contra, bigamy,. C. V. Mash, 7 Mete. 472 (1844) ; Davis v. C, 13 Bush, 318 (1877) ; St. v. Zichfeld, 23 Nev. 304 (1896) ; adultery, St. v. Goodenow, 65 Me. 30 (1876) ; P. V. Hartman, 130 Cal. 487 (1900). — Ed. Cases on Criminal Law. 193 the State of New Jersey, That if any board of chosen freeholders, or any township committee, or any board of aldermen or common councilmen, or any board of education, or any board of commis- sioners of any county, township, city, town or borough in this state, or any committee or any member of any such board or com- mission, shall disburse, order, or vote for the disbursement of public moneys, in excess of the appropriation respectively to any such board or committee, or shall incur obligations in excess of the appropriation and limit of expenditure provided by law for the purposes respectively of any such board or committee, the mem- bers thereof, and each member thereof, thus disbursing, ordering or voting for the disbursement and expenditure of public moneys, or thus incurring obhgations in excess of the amount appropriated and limit of expenditure as now or hereinafter appropriated and limited by law, shall be severally deemed guilty of malfeasance in office, and on being thereof convicted shall be punished by fine not exceeding one thousand dollars or imprisonment at hard labor for any term not exceeding three years, or both, at the discretion of the court." The facts alleged in the indictment were, that at a meeting of the board of freeholders, December 14th, 1876, a resolution was adopted for purchasing certain land for a court-house site for the sum of 11225,720, to be paid for in bonds of the county, "payable out of the amount appropriated and limited for the next fiscal year" — that is, for the fiscal year to commence December ist, 1877, "said bonds to run one year from date," &c. ; that the de- fendant presided at this meeting and subsequently approved the resolution, and, together with the county collector, signed the bonds in accordance with the said resolution ; that the next fiscal year after December 14th, 1876, would commence December ist, 1877, and that no appropriation or limit of expenditure had been fixed for this latter year. It also appeared that for the fiscal year commencing on December ist, 1876, the tax fixed by resolution was the sum of ;g6oo,ooo. Beasley, C. J.' When the state had closed, the defence offered to show that the defendant, in aiding in the passage and ^Argument of counsel and part of opinion relating to another point are omitted. 194 Cases on Criminal Law. effectuation of the resolution which I have pronounced to be illegal, did so under the advice of counsel, and in good faith, and from pure and honest motives, and that he therein exercised due care and caution. The arguments upon this interesting topic, contained in the briefs of the respective counsel, marked, as such briefs are, by acute reasoning and copious learning, have been of much assistance in the examination of the subject. On the part of the defence, it is strongly urged that the de- fendant was not a volunteer in this affair; that he was bound, under the obligations of public duty, to decide and act in the premises, and that if he acted with an honest purpose, and with due circumspection, to hold him guilty under this law would be contrary to those essential principles of justice and public policy on which all law is founded. To enforce this view, we are referred to those general maxims of criminal law which have been so often repeated by judges, and which are so well summarized by Mr. Bishop in the first volume of his work on Criminal Law, section two hundred and five, to the effect, " that in no one thing does criminal jurisprudence differ more from the civil than in the rule as to intent. Crime proceeds only from a criminal mind." Looked at in this light, and in this general aspect, the position of the defence is well calculated to strike the mind with great force, for we have there as the elements of the juncture that the defendant was honest, that he acted with caution, and that he was compelled to act, so that his violation of law was an unavoidable resultant from a discharge of duty, in its best form. It is, therefore, urged that the result is that the rule of law that will convert the defendant into a criminal is a rule that must inevitably, on many occasions, lead to the inculpation, by force of the criminal law, of this class of officials if they discharge their duty faithfully. But it will be observed that the principle that infuses life into this line of argument is too broad to be assented to in its full extent. Nothing in law is more incontestable than that, with respect to statutory offences, the maxim that crime proceeds only from a criminal mind does not universally apply. The cases are almost without number that vouch for this. The defendant in this case pleads that he was ignorant of the law as applied to the facts involved in his conduct But it has been many times decided, and indeed is the admitted general rule, that ignorance of the law Cases on Criminal Law. 195 is no defence against a criminal charge. Mr. Wharton, in an article published in the Albany Law Journal on February 5th, 1879, page thirty-four, says " that ignorance of law is no defence is generally admitted." Mr. Broom, in his Legal Maxims, thus clearly delineates the legal doctrine: "It is," says Lord Kehyon, "a principle of natural justice, and of our law, that the intent and the act must both con- cur to constitute the crime." "A man," as remarked by Earle,' Chief Justice, " cannot be said to be guilty of a delict, unless, to some extent, his mind goes with the act. And the first observa- tion which suggests itself in limitation of the principle thus enun- ciated, is that whenever the law positively forbids a thing to be done, it becomes thereupon ipso facto illegal to do it wilfully, or, tn some cases, even ignorantly, or, maybe, to effect an ulterior laudable object, and consequently the doing of it may form the subject matter of an indictment, or other legal proceedings sim- pliciter, and without the addition of any corrupt motive." In the case of State v. Goodenow, 65 Me. 30, it was decided, on an indictment for adultery, that the defendant could not defend on the plea that she belived that she had been legally divorced. And, in like manner, it is easy to cite cases establishing the doc- trine beyond dispute or cavil, that in many cases an honest mistake in regard to a state of facts will not exculpate when the prohibi- tion of a statute has been violated. As an illustration, I will refer to Reg. V. Woodrow, 15 M. & W. 404, which was an information against a retailer of tobacco, for having in his possession adulter- ated tobacco ; and it was held that he was punishable, though it was shown that he had purchased it as genuine, and had no knowl- edge or cause to suspect that it was not so. Another example is presented in Commonwealth v. Mash, 7 Mete. 472, which was the case of a woman marrying after her husband had been absent for several years, in the honest belief that he was dead ; such defence being disallowed. But on this head it is not necessary to multiply authorities. A crowd of them are collected in the brief of the attorney-general, and in fact it is admitted by the counsel of the ■defence that in a large number of instances of statutory offences, the crime may be committed in the absence of any wrongful intent. Nor even with respect to the common law is it true that a guilty purpose, or the possession of the knowledge requisite to 196 Cases on Criminal Law. make the mind guilty with respect to a particular act, is an essen- tial part of criminality. It is settled in that system by indubita- ble authority, that a statute may be violated by a person so soon after its passage that the fact of its enactment could not by possi- bility have come to his knowledge. Judge Story, in one of his decisions, recognizes this as an established principle of the com- mon law, and applies it to the issue before him. But, on the other hand, it is equally undeniable that in some cases, when the prohibition in a statute against doing a certain act, or series of acts, is couched in general terms, courts have, to use the language of Lord Cockburn, imported into the statute a proviso that the denoted act shall be done from a guilty mind. Such was the case of Rider v. Wood, 2 E. & E. 338, which was an informa- tion against the defendant for unlawfully absenting himself from the service of his employer during the term of his contract of ser- vice, contrary to a statute, the proceeding being founded on a law which enacted that if any servant, &c., " shall contract with any person or persons to serve him, &c., for any time or times what- soever, and having entered into such service, shall absent himself or herself from his or her service before the term of his or her contract shall be completed, the person so offending may be com- mitted," &c. The defendant having absented himself from the service contracted for by him, under the honest behef that a notice that he had served had legally dissolved the contract, the court held that he could not be convicted if he had given the notice in good faith, and believed in its legal efficacy, although in point of law such notice was a nullity. This is manifestly a clear case in which the court held that the culprit must have had a guilty mind,, although such ruling had the effect of qualifying the general statutory language. There are other cases in the same line cited in the briefs. Now these two classes of cases, diverging as they do, and^ seemingly standing apart from each other, may at first view appear to be irreconcilable in point of principle ; but, nevertheless, such is not the case. They all rest upon one common ground, and that ground is the legal rules of statutory construction. None of them can legitimately have any other basis. They are not the products of any of the general maxims of civil or natural law- On the contrary, each of this set of cases is, or should have been,. Cases on Criminal Law. 197 the result of the judicial ascertainment of the mind of the legisla- ture in the given instance. In such investigations the dictates of natural justice, such as that a guilty mind is an essential element of crime, cannot be the ground of decision, but are merely circum- stances of weight, to have their effect in the effort to discover the leg- islative purpose. As there is an undoubted competency in the law maker to declare an act criminal, irrespective of the knowledge or motive of the doer of such act, there can be, of necessity, no judicial authority having the power to require, in the enforcement of the law, such knowledge or motive to be shown. In such instances the entire function of the court is to find out the intention of the legislature, and to enforce the law in absolute conformity to such intention. And in looking over the decided cases on the subject it will be found, that in the considered adjudications, this inquiry has been the judicial guide. And naturally, in such an inquiry, the decisions have fallen into two classes, because there have been two cardinal considerations of directly opposite tendency, influenc- ing the minds of judges ; the one being the injustice of punishing unconscious violations of law, and the other the necessity, in view of public utility, of punishing, at times, some of that very class of offences. All the cases that are pertinent that are relied upon by the counsel of the defendant in this case, are decisions that have been produced mainly under the influence of the former of these two classes of considerations, but they are all, nevertheless, mere constructions of the respective statutory enactments. These cita- tions are made with a view to show that as a general rule the courts will require a corrupt motive to be shown when the statutory denunciation against doing an act contains no such requisition. But the authorities vouched do not sustain that large proposition ; they simply evince that in those special instances in construing the respective enactments, a legislative purpose was perceived of requiring, to constitute the offence, a mind conscious at the time of wrongdoing. The decisions thus adduced are not many; some of them are not apposite to the question ; and none of them can be said to sustain the proposition that in cases where a statute in general terms prohibits the doing of a particular act, the court will interpolate into such statute the requirement of a corrupt motive as an ingredient of the offence, on the sole ground that otherwise it would be opposed to natural justice. For a moment 198 Cases on Criminal Law. I will turn my attention to these cases, to see how far they sustain the proposition above stated, or the kindred proposition that a misapprehension as to the legal application of a statutory prohibition will excuse its infringement. The two cases of Rex v. Jackson, i T. R. 653, and Rex v. Barrat, Doug. 449, have no relevancy, as they were motions for informations, and were therefore applica- tions addressed to the discretion of the court. The next case is that of Commonwealth v. Bradford, 9 Mete. 268, in which the in- dictment was for illegal voting, but it can have no appreciable bearing upon the present inquiry, for although it was indeed held that a mistake with reference to the law might be proved, it ap- peared that the statute alleged to have been violated, made a knowledge of the law a component part of the offence. The act imposed a penalty on a person who should vote "knowing himself not to be a qualified voter ; " and the court sanctioned the admis- sion of evidence tending to show an honest error as to the law. I do not think that it is to be questioned that where a corrupt pur- pose or guilty knowledge is a part of the crime, ignorance of the law may be shown. The recent case of State v. Noyes, was affected by such a circumstance, and the defendant was permitted to show, in repulsion of the charge of fraud, that he was honestly mistaken as to the law and that he acted under the advice of counsel. In the present case, if this act of 1876 had declared that if any member of the board of freeholders should corruptly con- tract a debt in excess of the prescribed limit, there would not upon this point have been any question worthy of a moment's dis- cussion. The next case, which is that of Commonwealth v. Shedd, I Mass. 228, is subject to this same criticism. The next case is the anonymous one taken from 2 East P. C. 765, and it, with respect to its enactment, was this : A statute made it an indictable offence for any person to have in his posses- sion any canvas stamped with the king's mark, unless such person had a certificate of an officer of the crown showing how such article came into his possession. The defendant, who was a woman, was found with such a piece of canvas in her possession, and had no certificate showing how it came to her. On the trial, it appeared that the defendant's husband had purchased it in his lifetime at a public sale by the officers of the navy, and had used it in the family, and that it had been left in the house at his death, Cases on Criminal Law. i 99 and that no certificate appeared to have been taken at the sale. It was obvious that the defendant was morally not guilty and the court pronounced her legally not guilty. As far as appears there was no attempt to put any construction on the statute, derived from its language or the object at which it aimed, but the case as reported was disposed of by the remark made apparently to the jury, that " if the defendant's husband really bought the Hnen at public sale, but neglected to take a certificate, or did not preserve it, it would be contrary to natural justice, after such a length of time, to punish her for his neglect." This as an observation to the jury would not be out of the way, but as lapse of time could have nothing to do with the matter in its legal aspect, it would be an improbable conclusion to infer that the judge in these expressions was assign- ing his grounds for holding this law inapplicable if the defendant's possession of this article was unconsciously wrongful. But I do not think this case, from extrinsic considerations, of much force as a precedent. It is true that the judgment is said to have been rendered, under the circumstances stated, by Judge Foster, who in his day was eminent for his learning, especially in the field of criminal law, but the case is not taken from the well-known volume entitled " Foster's Reports," and which was prepared and published by the judge himself, but from the appendix added by another hand to the third edition, and which appendix is of no authenticity, for we are informed by Mr. Dodson, in his life of Judge Foster, that this appendix contains matters which the judge, by the advice of Lord Mansfield and Lord Hardwicke, had himself suppressed. I also observe that in the preface to his own edition this venerable magistrate says that he is about to submit a few crown cases in which he had taken a share, and that his other notes "are too crude and imperfect to admit of publication," and yet it is from these notes that the appendix in question has been composed. It seems to me this case is of little account. More- over, it is highly probable that it was, in point of fact, put on the same ground with Reg. v. Sleep, 8 Cox's Crim. Cas. 472, which is another authority cited for the defence, and which was the case of a person indicted under the same statutory provision for having in his possession certain copper marked with an arrow, denoting that it had formerly belonged to the government. The jury having found that the evidence was insufficient to show that the copper 200 Cases on Criminal Law. was thus marked, Cockburn, Chief Justice, and his associates adjudged that there could be no conviction, the Chief Justice say- ing that "the ordinary principle that there must be a guilty mind to constitute a guilty act applies to this case, and must be imported into this statute, as was held in Reg. v. Cohen, 8 Cox's Crim. Cas. 41, where this conclusion of law was stated by Hill, Justice, with his usual clearness and power." It will be perceived that the Chief Justice does not attempt to justify the implication made by him, except by the reference to the judgment of Hill, Justice, in the case named, so that we are constrained to refer to that deci- sion for explanation, and by doing so, we find the enactment in question is expounded in the usual way by a reference to its con- text and its effects, and the conclusion arrived at that unless the adjudged interpretation should be adopted the act would be run into absurdity. No one can doubt that, granting these judicial premises, the conclusion was in harmony with ordinary rules. The remaining cases cited, Reg. v. Tinkler, i Fos. & F. 513 ; Hearne v. Garten, 2 E. & E. 66 ; Rider v. Wood, 2 E. & E. 338 ; Taylor I/. Newman, 4 B. & S. 89; Buckmaster v. Reynolds, 13 C. B. (N. S.) 62, and United States v. Connor, 3 McLean 572, are all decided on the same principle that was applied in the last case just specially noticed. It is in this class of decisions that the case of State V. Cutter, 7 Vroom 125, is to be included. These cases have been specially referred to by me, with the purpose of illustrating by examples the conclusion already expressed, that the subject under consideration is completely embraced in the legal department of statutory construction, and that each decided case rests on its own facts and particularities, and that the maxim, "actus non facit reum. nisi mens sit rea," has no controUing effect. That this maxim has, and should have, in every doubtful case a decided influence, is not denied ; but it is intended to be affirmed that when an act is prohibited in express terms by a statute, such prohibition cannot be contracted so as to embrace only such persons as guiltily do such act, by the unassisted force of such maxim. The course of the inquiry, therefore, has led to this point: is there anything in the language of the statute now to be con- strued, or in the legislative design displayed in it, or in the conse- quences, if its terms are construed strictly, by force of which this Cases on Criminal Law. 201 court can limit its operation to those only who act with conscious- ness of violating the law ? Now it is incontestable that, in view of the interpretation above put upon this provision of the statute, the duty thereby required of this defendant was of the simplest possible character. According to that interpretation the legislature, in effect, said to these freeholders, "yourselves fix the sum requisite for your expenditure during the year, but you are interdicted from making any payment or contracting any debt beyond such limit." I find it impossible to regard such a prohibition as involving any idea of complexity, or difficulty in its execution. To obey such an injunc- tion seems, to my mind, a very intelligible matter indeed ; certainly a duty much easier of performance than that of the retailer of tobacco, mentioned in the case already cited from Meeson & Welsby, who was enjoined, under a penalty, not to have in his' possession any adulterated tobacco, and which duty, his counsel contended, ■could only be perfectly and certainly performed by having a chemi- cal analysis made of each sample that he purchased. If the duty, then, be a simple one, and not one which is subject to very great •difficulties in its performance, there is nothing in the nature of the .act prohibited from which the court can say, in the face of the legislative language, that it was not the intention to make it appli- cable to every one who should violate its letter. Counsel indeed pressed upon the court the consideration that this statute, from the infelicity of its phraseology, was, with respect to its purpose or .application, open to much question, and that in point of fact pro- fessional gentlemen had expressed variant opinions with regard to it. This may be so, but when the question is as to the intention of the legislature, this argument is out of place. It would be prepos- terous for this court to hold that the legislature, in this act, has intended to punish the person who infringes the letter of this law, -without regard to the question of his moral delinquency, and at the same time to say that such effect shall not be given to the statute, because of the lame way in which it has been penned. This would be to put the case upon the rejected ground of the hardship arising from applying the law to a person whose mind was not guilty, instead of abiding by the adopted doctrine of ascertaining the intention of the law maker. The sole business of the court is to find the mean- ing of this law, and then to give it effect in that sense. It will also 202 Cases on Criminal Law. be observed that the result to which I have come, that this duty- imposed on the freeholders is a plain one and one not difficult of performance, dissipates all idea that the court can, by construction, control the generality of its terms, on the ground that, read in its rigor, it bears so hardly on this class of officers as to raise a pre- sumption against such an interpretation. If there has been any hardship, it has arisen from the verbal obscurity of the statute, and such a consideration, it has been just remarked, ought not to affect the mind of the court. Nor is it the province of the court to say whether this law is too rigorous or not ; that is the part of the legislature ; but it certainly is not clear that such a regulation may not be subservient to a wise public policy. Entertaining the view that the act which this defendant was ordered to abstain from doing was neither difficult to comprehend or to perform, I find myself unable to yield to the notion that the language of the provision in question can be curtailed by construction. The judgment should be affirmed} For affirmance — The Chancellor, Chief Justice, Depue, Reed, Scudder, Van Syckel, Woodhull, Clement, Dodd, Green, Lilly — 1 1. For reversal — None. STERN V. STATE. Supreme Court of Georgia, 1874. 53 Georgia, 229. Myers Stern was tried at the November term, 1873, of the county court of Clarke county for the offence of allowing a minor, Frank Talmadge, to play at billiards without the consent of his parent or guardian. The evidence made out a prima facie case for the State, but for the defense it was shown that Stern, before allowing Talmadge to play on his table, had inquired as to his age ^Accord: St. v. Huff, 89 Me. 521, (1897); Fraser v. St., 112 Ga. 13 (1900) ; St. V. Foster, 46 Atl. (R. I.) 833 (1900). — Ed. Cases on Criminal Law. 203 and had been informed by said minor that he was an adult ; that he appeared to be over twenty-one years of age, and that he was, in fact, within six months of maturity at the time that he indulged in the aforesaid game. The county court refused to consider this testimony, holding that upon proof of the playing of the game with the knowledge of the defendant, of the minority of Talmadge, and of the absence of the consent of his parent or guardian, conviction was the inevit- able result. The case was carried by certiorari to the Superior Court, where the judgment of the county court was affirmed, and defendant excepted. T. W. Rucker, for plaintiff in error. Emory Speer, Solicitor General, by W. B. Thomas, for the State. McCay, Judge. 1 . We agree with the counsel for the plaintiff in error that the county judge did not take a proper view of the law on the trial. To make a crime, there must be the union of act and intent, or there must be criminal negligence. It is not con- clusive evidence of guilt on the part of the defendant that he permitted this young man to play at his table ; that the young man was, in fact, a minor, and that the parent did not consent. These facts, it is true, make a prima facie case, and if they stood alone, the guilt of the defendant would be manifest ; but evidently there was evidence of another element in the case, which, by the return of the county judge, is shown not to have been considered by him in arriving at his conclusion. There was evidence going to show that the defendant might have been honestly mistaken as to the age of the young man. It is clear to us that if the defendant, after due diligence, thought honestly that this young man was not a minor, he is not guilty. If he did so think, after proper inquiry, the element of intent does not exist ; the act was done under a mis- take of fact. In such a case, there is no guilt and no crime. This is the doctrine of all the books, and is, besides, common sense and common justice. 2. Nor is there anything in the nature of this offence which alters the rule. If one who shoots down his dearest friend by mistake, supposing him to be a dangerous wild beast or a burglar, 204 Cases on Criminal Law. is not guilty of any crime, surely one who permits a minor to play billiards without the consent of the parent, under the honest behef that he is not a minor but of full age, is not guilty. In both cases, however, to excuse the guilt there must be no want of proper cau- tion on the part of the accused. He must have used due diligence, according to the circumstances and the nature of the case. But if he do this, and the evidence show that after such caution he is still honestly mistaken he is not guilty. We are not prepared to say that the evidence here is conclusive of an honest mistake. We do not say that the defendant was bound to have inquired of the parent. That would depend on his accessibility, and on the strength of the other circumstances indicating full age. It is impossible to lay down any general rule. Each case must depend on its own nature and circumstances. From the very nature of this offense special diligence is necessary. Everybody knows that there is uncer- tainty in such cases, and as the law has made the age of any bil- liard-player important, even in spite of this liability to mistake, every saloonkeeper should act in view of the fact that he is dealing with an uncertain thing. The man who throws a heavy weight from the top of a building is bound to a greater caution if he does it in a city or town, and into a street, than if he does it in the country, and into a little traveled road. As we have said, we do not think this evidence establishes conclusively that the defendant was honestly mistaken. We incline to the opinion of Judge Rice that there is some evidence to justify the finding, and had this convic- tion been by the verdict of a jury, under a legal charge as to the law, we should hesitate to disturb it. But the record shows the county judge did not consider the question of intention ; he acted on the idea, that as the proof was clear of minority, the law had been violated, whatever might have been the honest opinion of the defendant. He held him to be bound to inquire of the parent — nay, on the general rule he acted on, he, perhaps, would have found him guilty if he had inquired of the parent — had the parent, either by mistake, or untruthfully, answered that the son was of age. It appears therefore, that on the trial of this case, the judge, who acted as judge and jury, mistook the law, did not consider the evidence going to show an honest mistake, after due caution, and we send the case back to be tried again under a proper view of the law, to-wit : the defendant is not guilty, if, under all the circum- Cases on Criminal Law. 205. stances, he honestly thought the young man not to be a minor, and the dihgence required is that reasonable diligence which, in view of the nature of the case, a good citizen and prudent maa would use. Judgment reversed. ^ COMMONWEALTH v. WEISS. Supreme Court of Pennsylvania, 1890, 139 Pennsylvania, 247. Opinion, Mr. Justice Clark.' This was an action brought to recover the penalty of ^100,. provided for in the third section of the Act of May 21, 1885, P. L. 22, commonly known as the Oleomargarine Act. At the trial,, the defendant submitted a point requesting the court to instruct the jury " that, if they (the jury) believe, from the evidence, that the defendant did not knowingly furnish, or authorize to be furnished, or know of being furnished, to any of his customers, any oleomargarine, but, so far as he knew, furnished genuine butter,, then the verdict must be for the defendant." The point was refused, and whether the court was right in refusing it, as we understand the case, is the only question upon which a decision is- desired. The argument contained in the paper book, as well as- the oral argument in this court, was directed to this question only, and we assume that the parties intended to raise no other. That portion of the charge in which binding instructions were given to 1 Accord : Selling liquor to minors, P. v. Welch, 71 Mich. 548 (1888); [Contra : St. v. Hartfiel, 24 Wis. 60 (1869); Farmer v. P. 77 111. 322 (1875),;. St. V, Cain, 9 W. Va. 559 (1876); C. v. Finnegan, 124 Mass. 324(1878); Redmond v. St. 36 Ark. 58 (1880) ; St. v. Sasse, 6 S. D. 212 (1894) ; In re Carlson's License, 127 Pa. 330 (1889);] Selling liquor to habitual drunkards, Williams v. St 48 Ind. 306 (1874) ; Crabtree v. St. 30 Ohio St. 382 (1876) ; Smith V. St. 55 Ala. i (1876). [Contra : Barnes v. St. 19 Conn. 398 (1849) ;. St. V. Heck, 23 Minn. 549 (1877).] Having in possession counterfeiting tools, P. V. White, 34 Cal. 183 (1867); Illegal voting by person under 21 years, Gordon v. St. 52 Ala. 308 (1875); Permitting growth of Canada thistles,. Story V. P. 79 111. App. 562 (1898). Contra : Allowing minors to loiter on premises, St. v. Kinkead, 57 Conn. 173 (1889). -Ed. 2 The opinion only is printed. 2o6 Cases on Criminal Law. find for the plaintiff, is not quoted in totidem verbis, in the assign- ments of error, according to our rules ; it would seem, therefore, that the appellant's intention is to confine our deliberations to the single question referred to. The first and third sections of the Act of 1885 provide as follows : " " I. That no person, firm, or corporate body shall manufac- ture, out of any oleaginous substance or any compound of the same, other than that produced from unadulterated milk or of cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell, or offer for sale, or have in his, her, or their posses- sion with intent to sell the same as an article of food." " 3. Every person, company, firm, or corporate body who shall manufacture, sell, or offer or expose for sale, or have in his, her, or their possession with intent to sell, any substance, the manufacture and sale of which is prohibited by the first section of this act, shall, for ever>' such offence, forfeit and pay the sum of one hundred dollars, which shall be recoverable, with costs, by any person suing in the name of the commonwealth, as debts of like amount are by law recoverable," etc. Guilty knowledge or guilty intent is, in general, an essential element in crimes at the common law, but statutes providing police regulations, in many cases make certain acts penal, where this element is wholly disregarded. The distinction is thus laid down in 3 Greenl. Ev., § 21 : "The rule" (i. e., that ignorance of fact will excuse) " would seem to hold good in all cases where the act, if done knowingly, would be be malum in se. But, where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems, will not excuse its violation. Thus, for example, where the law enacts the forfeiture of a ship having smuggled goods on board, and such goods are secreted on board by some of the crew, the owners and officers being alike inno- cently ignorant of the fact, yet the forfeiture is incurred notwith- standing their ignorance. Such is also the case in regard to many other fiscal, police, and other laws and regulations, for the mere Cases on Criminal Law. 207 ^violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted ; for the law in these cases seems to bind the parties to know the facts, and to obey the law at their peril." To the same effect, also, is Wharton, Crim. Law, ■§§ 83, 2442. Whether a criminal intent, or a guilty knowledge, is a neces- sary ingredient of a statutory offence, therefore, is a matter of -construction. It is for the legislature to determine whether the public injury, threatened in any particular matter, is such and so great, as to justify an absolute and indiscriminate prohibition. Even if, in the honest prosecution of any particular trade or business, conducted for the manufacture of articles of food, the product is healthful and nutritious, yet, if the opportunities for fraud and adulteration are such as to threaten the public health, it is undoubtedly in the power of the legislature, either to punish those who knowingly traffic in the fraudulent article, or, by a sweeping provision to that effect, to prohibit the manufacture and sale altogether. The question for us to decide, therefore, is whether or not, from the language of the statute, and in view of the mani- fest purpose and design of the same, the legislature intended that the legality or the illegality of the sale should depend upon the ignorance or knowledge of the party charged. The statute in question was an exercise of the police power, and the act was sustained upon this ground, not only in this court, but also in the Supreme Court of the United States : Powell v. Commonwealth, 114 Pa., 265 ; Powell v. Pennsylvania, 127 U. S., 678. The prohibition is absolute and general ; it could not be expressed in terms more explicit and comprehensive. The statu- tory definition of the offence embraces no word implying that the forbidden act shall be done knowingly or wilfully, and, if it did, the design and purpose of the act would be practically defeated. The intention of the legislature is plain, that persons engaged in the traffic shall engage in it at their peril, and that they cannot set up their ignorance of the nature and qualities of the commodities they sell, as a defence. In Massachusetts, a statute declared that if any person should "sell, keep, or offer for sale, adulterated milk," he should be punished, etc. ; and it was held that the penalty was incurred, although the sale was made without any knowledge of the adul- 2o8 Cases on Criminal Law. teration, as when the seller had bought the milk for pure milk r Commonwealth v. Farren, 9 Allen, 489 ; Commonwealth v. Nichols, 10 Allen, 199. Upon the same ground, it has been held and it is familiar law, that the statutes against selling intoxicating liquors are violated, although the vendor does not know that it is intoxicating: Commonwealth v. Boynton, 2 Allen, 160; Common- wealth V. Goodman, 97 Mass., 117; Commonwealth v. Hallett, 103 Mass., 452. Where a statute imposed a penalty upon " any person who shall sell, or keep for sale, naptha, under any assumed name," a party charged with the offence was held to be guilty, although he was not aware that the article sold was naptha, but believed it to be some other oil : Commonwealth v. Wentworth, 118 Mass., 441. So, where a party is charged with furnishing^ liquors to minors, or for permitting a minor to play billiards in his saloon, he is not permitted to set up his ignorance of the minor's age to defeat the charge : Wharton Crim. Law, § 2442, and cases there cited. In our own case. In re Carlson's License, 127 Pa., 330, Carlson, in a proceeding to revoke his liquor license, under the Act of May 13, 1887, P. L., 113, was charged with furnishing liquors to minors, in violation of the seventeenth section of the same act. He admitted the sale of liquors to the minors in ques- tion. His excuse was that their appearance indicated that they were of full age, and that, as a precaution before selling, he asked their age, and each responded that he was of full age ; that he sold to them in good faith, fully believing them to be so. Under the Act of 1854, a necessary element to constitute the offence was that the sale should be wilful, but in the Act of 1887 the word "wilfully" was omitted, and it was enacted " that it shall not be lawful for any person, with or without license, to furnish by sale, gift, or other- wise," "any spirituous, vinous, malt or brewed liquors," "at any time, to a minor." His license having been revoked, the case was brought here for review, and the proceedings were affirmed. Chief Justice Paxson, delivering the opinion of the court said : " If we look into the opinion of the court for the facts, we find nothing to help the plaintiffs. From it we learn that the offence of which the plaintiffs in error were guilty was that of selling hquors to minors, and that the only excuse offered was that they did not know that the persons to whom they sold were minors. This ignorance is not a sufficient excuse or justification under the act of Cases on Criminal Law. 209 assembly. If such a defence could be successfully interposed in such cases, there would be few convictions, and the law would be nullified for all practical purposes." To the same effect are Com- monwealth V. Sellers, 130 Pa., 32; Commonwealth v. Holstine, 132 Pa., 3 57, and Commonwealth v. Zelt, 138 Pa., 615. We are of opinion that judgment was rightly entered for the plaintiff, and the judgment is Affirmed} STATE V. WRAY. Supreme Court of North Carolina, 1875. 72 North Carolina, 253. Settle, J. The defendants being indicted for retailing spirit- uous liquors, without a license so to do, the jury rendered the follow- ing special verdict : " The defendants were druggists and partners in the town of Shelby, and kept medicines for sale, but had no license to retail spirituous Uquors. In the month of July, 1872, Dr. O. P. Gardner, a practicing physician in the town of Shelby, prescribed the use of a half pint of French brandy for Mrs. Durham, the wife of the witness, Hill Durham, and directed the witness to go to the defendants for it. That Dr. Gardner also went to the defendants and directed them to let the witness have the said brandy for his wife as medicine. The witness then went to the defendants and purchased the half pint of French brandy, and his wife used it as medicine. That French brandy is a spirituous liquor ; that it is also an essential medicine, frequently prescribed by physicians, and often 1 Accord: Selling adulterated food, C. v. Farren, 91 Mass., 489 (1864), St. V. Smith. 10 R. I., 258 (1872), P. v. Kibler, 106 N. Y., 321 (1887), St.z/. Newton, 50 N.J. L. 534 (1888), St v. Kelly, 54 Ohio St., 166 (1896), selling intoxicating liquor, King v. St., 66 Miss., 502 (1889), C. v. O'Kean, 152 Mass., 584 (1891); contra: Farrell v. St., 32 Ohio St., 456 (1877). Having in possession adulterated tobacco, Reg. v. Woodrow, 15 M. & W., 404 (1846) ; Selling vinegar below standard, P. v. Worden Grocer Co., 118 Mich., 604 (1898); Removing timber from school lands, St. v. Dorman, 9 S. D., 528 (1897).— Ed. 2IO Cases on Criminal" Law. used, and that in this case it was bought in good faith as a medi- cine, and was used as such. The letter of the law has been broken, but has the spirit of the law been violated ? The question here presented has been much discussed, but it has not received the same judicial determination in all the States in which it has arisen. In this conflict of authority we shall remember that the reason of the law is the life of the law, and when one stops the other should also stop. What was the evil sought to be remedied by our statute ? Evidently the abusive use of spirituous liquors, keeping in view at the same time the revenues of the State. The special verdict is very minute in its details, and makes as strong a case for the defend- ants as perhaps will ever find its way into court again. A phy- sician prescribes the brandy as a medicine for a sick lady, and directs her husband to get it from the defendants, who are druggists. It may be that a pure article of brandy, such as the physician was will- ing to administer as a medicine, was not to be obtained elsewhere than at the defendants' drug store. The doctor himself goes to the defendants and directs them to let the witness have the brandy as a medicine for his wife. And the further fact is found, which per- haps might have been assumed without the finding, that French brandy is an essential medicine, frequently prescribed by physicians and often used ; and the farther and very important fact is estab- lished, that in this case it was bought in good faith as a medicine, and was used as such. After this verdict we cannot doubt that the defendants acted in good faith and with due caution in the sale which is alleged to be a violation of law. In favor of defendants, criminal statutes are both contracted and expanded, i Bishop, par. 261. Now unless this sale comes within the mischief which the statute was intended to suppress, the defendants are not guilty ; for it is a principle of the common law, that no one shall suffer criminally for an act in which his mind does not concur. The familiar instance given by Blacksto^pe illustrates our case better than I can do by argument. The Bolognian law enacted " that whosoever drew blood in the street, should be pun- ished with the utmost severity." A person fell down in the street with a fit, and a surgeon opened a vein and drew blood in the street. Here was a clear violation of the letter of the law, and yet from that day to this, it has never been considered a violation of the spirit of Cases on Criminal Law. 211 the law. Perhaps it will give us a clearer view of the case if we put the druggist out of the question, and suppose that the physician himself, in the exercise of his professional skill and judgment, had furnished the liquor in good faith as a medicine. Can it be pre- tended that he would be any more guilty of a violation of our stat- ute than the surgeon was guilty of a violation of the Bolognian law ? "We think not. But we would not have it understood that physicians and drug- gists are to be protected in any abuse of the privilege. They are not only prohibited from selling liquor in the ordinary course of business, but also from administering it as a medicine unless it be •done in good faith, and after the exercise of due caution as to its necessity as a medicine. The sale of liquor without a license, in quantities less than a quart, is prima facie unlawful, and it is incum- bent upon one who does so sell, to show that it was done under circumstances which render it lawful. In this case we think such •circumstances have been shown, and we concur in the judgment of his Honor, that the defendants are not guilty. Per Curiam. Judgment affirmed. SECTION VI. CONCURRENCE OF SEVERAL INTENTS. REX V. WILLIAMS. Kings Bench, 1795. I Leach Crown Cases, 529. Mr. Justice Ashurst.^ Rhenwick Williams, the prisoner at the bar, was tried in the, last July Session on the Statute of 6 Geo. i., c. 23. And the indictment charged, that he, on the i8th January, 1790, at the parish of St. James, in a certain public street called St. ■■ Part of this case is omitted. 212 Cases on Criminal Law. James's Street, wilfully, maliciously and feloniously did make an assault ovi Anne Porter, spinster, with intent wilfully and maliciously to tear, spoil, cut, and deface her garments ; and that he, on that said i8th of January, 1 790, in the parish aforesaid, &c. , did wilfully, maliciously, and feloniously tear, spoil, cut, and deface her silk gown, petticoat, and shift, being part of the wearing apparel which she then had and wore on her person. The jury found the prisoner Guilty; but the judgment was respited, and the case submitted ta the consideration of the judges upon three questions. The judges areof opinion, that the case, as proved, is not sub- stantially within the meaning of the Act of Parliament. This statute was passed upon a particular and extraordinary occasion. Upon the introduction of Indian fashions into this country, the silk weavers, conceiving that it would be detrimental to their manufac- ture, made it a practice to tear and destroy the clothes and gar- ments which were of a different commodity from that which they wove, and to prevent this practice the statute of 6 Geo. i., c. 23 was made. To bring a case therefore within this statute, the primary intention must be the tearing, spoiling, cutting, or defacing of the clothes ; whereas, in the present case, the primary intention of the prisoner appears to have been the wounding of the person. of the prosecutrix. The Legislature, at the time they passed this Act, did not look forward to the possibility of a crime of so diaboli- cal a nature as that of wounding an unoffending person merely for the sake of wounding the person, without having received any provocation whatever from the party wounded. But even upon the supposition that it was possible for the Legislature to entertain an idea of such an offence, it is clear they did not intend to include it within the penalties of this statute, because, if they had entertained such an idea, it is probable they would have annexed to it a higher punishment than this statute inflicts. As the Legislature therefore could not have framed this statute to meet this offence, it does not fall within the province of those who are to expound the laws t& usurp the office of the Legislature, and to bring an offence within the meaning of an Act, merely because it is enormous, and deserving of the highest punishment. But although the lash of the Legislature does not reach this offence so as to inflict the conse- quences of felony on the offender, yet the wisdom of the common law opens a means of prosecution by indictment for the misdemeanor. Cases on Criminal Law. 213 and, on conviction of the offender, arms the Court with a power to punish the offence in a way that may force him to repent the temerity of so flagrant a violation of the rules of law, the precepts of social duty, and the feelings of humanity.^ REX V. GILLOW. Court for Crown Cases Reserved, 1825. I Moody, 85. The prisoner was tried, and convicted before Mr. Justice Bayley, at the Lancaster Lent assizes, in the year 1825, of mali- ciously shooting at Dennis Carter, with intent to do him some grievous bodily harm. It appeared that the prisoner had just come out of a wood, armed with a gun, illegally to kill game there, between two and three o'clock on the morning of the 2d November, 1824. He was skirting the wood to kill game there, when three keepers who were upon the watch for poachers, sud- denly sprung up, and were rushing forward to seize him, when the prisoner fired his gun at one of the keepers, and hit him upon the lower part of his back and buttocks. The wound was not dangerous. ^ It seems that Mr. J. BuUer, at the subsequent consultation of the judges, retained the opinion he had given to the jury, viz : that the case came within the statute, because the jury, whose sole province it was to find the intent, had expressly found that the intent of the prisoner was to wound the party by cutting through her clothes, and therefore that he must have intended to cut her clothes ; and for this opinion he relied upon the case of Cook and Wood- burn, upon the statute 22 and 23, Car. II. c. I., commonly called the Coventry Act, charging them in the words of the Act with an intention to maim a Mr. Crisp. The fact of maiming was clearly proved, but the defendants insisted that their intention was to murder him, and not to maim him, and therefore that they were not within the statute. But Lord King said that the intention was a matter of fact to be collected from the circumstances of the case, and as such was proper to be left to the jury; and that if it was the intent of the prisoners to murder, it was to be considered whether the means made use of to accomplish that end and the consequences of those means were not likewise in their intention and design ; and the jury found them guilty and they were executed. But it seems that upon a subsequent occasion Willes, J., and Eyre, B., expressed some dissatisfaction with this determination, and thought, at least, that the construction ought not to be carried further, i East, 400 and 424. 214 Cases on Criminal Law. The jury were of opinion that the prisoner's motive was to- prevent his lawful apprehension, but that in order to effect that purpose he had also the intention of doing to Carter some grievous bodily harm. It was objected, that the act having specified the intent to- prevent lawful apprehension, as one of the intents made essential to constitute the offense, and that being the main and principal intent in this case, the indictment should have charged that as the intent. The learned judge was of opinion that if both intents existed, the question which was the principal and which was the subordinate intention was immaterial ; but though the learned judge did not reserve the point, he thought it right to submit the case to the consideration of the judges. In Easter term, 1825, the Judges (Best, L. C. J. and Littledale, J. absent) met and. considered this case, and held that if both intents existed, it was immaterial which was the principal and which the subordinate one,, and that the conviction was therefore proper.^ 1 Accord: Rex t/. Shadbolt, 5 Car. & P., 504 (1833) ; St. v. Mitchell,. 5 Ire. L., 350 (1845); P. V. CarmichaeU 5 Mich., 10 (1858); St. v. Clark,. 69 Iowa, 196 (1886). — Ed. Cases on Criminal Law. 215 Chapter IV. Negligence as Supplying Intent. Touching the sin of homicide, appeals are made thus : Knot- ting, who is here, appeals Carling, who is there, for that whereas Cadi, the father (brother, son, or uncle) of this Knotting . . . was struck on such a part of his body by a curable stroke (or had such a curable disease or wound), for the cure whereof he had placed himself under this Carling, who professed himself a master of medical practice, there came this Carhng, and undertook the case, and by his folly and negligence, etc., feloniously slew him. Or thus : withdrew sustenance from him, whereby qn such a day, etc., he slew him. Or thus : so long delayed his delivery [from prison] that thereby he slew him. Mirror of Justices {Sel. Soc.^ Ch. 15. HULL'S CASE. Old Bailey, 1664. Kelyng, 40. 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 workmen 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 their 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 2i6 Cases on Criminal Law. laborers, and all of them went from the danger but only Cam- bridge, 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 for workmen 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 the 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 the 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 betwixt the case in question.the house from which the timber was thrown standing thirty foot 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, called out to stand aside, and then throw down rubbish, or a piece of timber, by which a man is killed, this is manslaughter ; being in London, there is a con- tinual concourse of people passing up and down the streets, and a new passenger, who did not hear him call out, and therefore the casting 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, etc., my Brother Wylde and I held that a far different 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. ■ ' Cases on Criminal Law. 217 KNIGHT'S CASE. Lancaster Assizes, 1828. I Lewin C. C, i68. Prisoner was indicted 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 there sitting, 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." Note. — A similar case occurred before Hullock, B., at the York Spring Assizes, 1829, and a similar judgment w^s delivered. RIGMAIDON'S CASE. Lancaster Assizes, 1833. I Lewin C. C, 180. Prisoner, a wine merchant at Liverpool, was indicted for man- slaughter, in having, by negligence in the manner of slinging a cask or puncheon, caused the same to fall and kill two females who were passing along the causeway. It appeared in evidence that there were three modes of slinging casks customary in Liver- pool : one by slings passed round each end of the cask ; a second, by can -hooks ; and a third, in the manner in which the prisoner had slung the cask, which caused the accident, viz., by a single rope round the center of the cask. The cask was hoisted up to the fourth story of a warehouse, and on being pulled end-ways towards the door, it slipped from the rope as soon as it touched the floor of the room. 2i8 Cases on Criminal Law. Per Parke, J., to the jury : " The double slings were undoubtedly the safest mode ; but if you think the mode which the prisoner adopted, viz., that of a single rope, was reasonably sufficient, you cannot convict him." Prisoner was convicted and sentenced to a month's imprison- ment. STATE V. O'BRIEN. Supreme Court of New Jersey, 1867. 32 New Jersey Law, 169. Dalrimple, J.' On the fifteenth day of November, 1865, the defendant was a switch-tender, in the employ of the New Jersey Railroad and "Transportation Company. His duty was to adjust, and keep adjusted, the switches of the road at a certain point in the city of Newark, so that passenger trains running over the road would continue on the main track thereof, and pass thence to the city of Elizabeth. He failed to perform such duty, whereby a passenger train of cars, drawn by a locomotive engine, was unavoidably diverted from the main track to a side track, and thence thrown upon the ground. The cars were thrown upon each other with great force and violence, by means whereof one Henry Gardner, a passenger upon the train, was so injured that he died. The defendant was indicted for manslaughter, and convicted upon trial in the Essex Oyer and Terminer. He insisted, and in different forms, asked the court to charge the jury, that he could not legally be convicted, unless his will concurred in his omission of duty ; the court refused so to charge. A rule to show cause why the verdict should not be set aside was granted, and the case certified into this court for its advisory opinion, as to whether there was any error in the charge of the court below, or in the refusal to charge, as requested. The indictment was for the crime of manslaughter. If the defendant's omission of duty was wilful, or in other words, if his ^ The opinion only is printed. Cases on Criminal Law. 219 will concurred in his negligence, he was guilty of murder. Intent to take life, whether by an act of omission or commission, distin- guishes murder from manslaughter. In order to make out against the defendant the lesser offence of manslaughter, it was not neces- sary that it should appear that the act of omission was wilful or of purpose. The court was right in its refusal to charge, as requested. The only other question is, whether there is error in the charge delivered. The error complained of is, that the jury were instructed that a mere act of omission might be so criminal or culpable as to be the subject of an indictment for manslaughter. Such, we believe, is the prevailing current of authority. Professor Greenleaf, in the third volume of his work on evidence, § 129, in treating of homicide, says : " It may be laid down, that where one, by his negligence, has contributed to the death of another, he is responsible. The caution which the law requires in all these cases, is not the utmost degree which can possibly be used, but such reasonable care as is used in the like cases, and has been found, by long experience, to answer the end." Wharton, in his Treatise on Criminal Law, p. 382, says ; " There are many cases in which death is the result of an occurrence, in itself unexpected, but which arose from negligence or inattention. How far in such cases the agent of such misfortune is to be held responsible, depends upon the inquiry, whether he was guilty of gross negligence at the time. Inferences of guilt are not to be drawn from remote causes, and the degree of caution requisite to bring the case within the limits of misadventure, must be proportioned to the probability of danger attending the act immediately conducive to the death." The propo- sitions so well stated by the eminent writers referred to, we beheve to be entirely sound, and are applicable to the case before us. The charge, in the respect complained of, was in accordance with them. It expressly states, that it was a question of fact for the jury to settle, whether the defendant was, or was not guilty of negligence ; whether his conduct evinced under the circumstances such care and diligence as were proportionate to the danger to life impending. The very definition of crime is an act omitted or committed in violation of public law. The defendant in this case omitted his duty under such circumstances, as amounted to gross or culpable or criminal negligence. The court charged the jury. 220 Cases on Criminal Law. that if the defendant, at the time of the accident was intending to do his duty, but in a moment of forgetfulness omitted something which any one of reasonable care would be likely to omit, he was not guilty. The verdict of guilty finds the question, in fact, involved in this proposition against the defendant, and convicts him of gross negligence. He owed a personal duty not only to his employers, but to the public. He was found to have been grossly negligent in the performance of that duty, whereby human life was sacrificed. His conviction was right, and the court below should be so advised.^ REGINA V. MACLEOD. Court of Criminal Appeal, 1874. 12 Cox C. C, 534. Alexander Macleod was charged with the manslaughter of his wife, Annie Macleod, at Carlisle, on the 15th of October, 1873. Thurlow and T. F. Fenwick were for the prosecution. Charles Russell, Q. C. , and Fawcett were for the defence. The case against the prisoner was that of having unlawfully killed his wife by having administered to her a large quantity of a certain ' Accord: Reg. v. Pargeter, 3 Cox C. C, 191 (1848); Reg. v. Hughes, 7 Cox C. C, 301 (1857) ; cf. Rex v. Green, 7 Car. & P., 156 (1835). See also U. S. V. Knowles, 4 Sawy. , 517 (1864): Thomas v. P. .2 Colo. App., 513 (1892).— Ed. "If the prisoner is and has been afflicted in the manner claimed [with somnambulism] and knew, as he no doubt did, his propensity to do acts of violence when aroused from sleep, he was guilty of a grave breach of social duty in going to sleep in the public room of a hotel with a deadly weapon on his person, and merits, for that reckless disregard of the safety of others, some degree of punishment, but we know of no law under which he can be punished. Our law only punishes for overt acts done by responsible moral agents. If the prisoner was unconscious when he killed the deceased, he cannot be punished for that act, and as the mere fact that he had a weapon on his person and went to sleep with it there did no injury to any one, he cannot be punished for that." Cofer J. in Fain v. C, 78 Ky. 183(1879). Cases on Criminal Law. 221 drug called muriate of morphia. From the evidence it appeared the prisoner, who had been for about twenty or thirty years a sur- geon on the medical staff of the Madras Army in India, came over to live in England, about a year and a half or two years ago, and shortly after came to Carlisle, and brought with him the deceased woman his, wife. For a short time before the 1 5th of October, while the prisoner and his wife were living together in Chiswick street, Carlisle, one of their children, who was about six years of age, became ill of typhoid fever, and for a fortnight before that the deceased woman had been in a bad and weak state of health. That indisposition was materially increased by having to attend to her sick child, which she had done most assiduously, and for several days previous to the 15th of October, she appeared never to have obtained good rest. In the middle of that day — the 1 5th of October — she appeared very unwell indeed, and the prisoner, finding she had not obtained any proper rest, determined to give her an opiate. At 4 p. m. he went to Mr. Todd, a chemist in the town, and there obtained in a bottle twenty grains of morphia, and paid eightpence for it, that being the price of that quantity to a medical man. The prisoner went home, gave his wife one grain, after weighing it, and repeated other does without weighing them ; altogether he administered something like sixteen and a half grains before seven o'clock that evening, in about three or three and a half hours. About 6.30 the prisoner went for Dr. Walker, and told him his wife had taken too much morphia, and as they were pro- ceeding from Dr. Walker's house to the prisoner's they had a conversation in which the prisoner stated that he had given her repeated doses of morphia, that he had given her one grain as a first dose which he had weighed, but that in repeating the doses he had not weighed them, but guessed the quantity. Dr. Walker on his arrival found the poor woman lying on the hearth rug in front of the fire suffering from pain and apparently unconscious. Dr. Walker tried various means of restoring her. At twenty minutes before nine o'clock, Dr. Maclaren was called in and he injected atropine as an antidote. The deceased was then in a state almost comatose, and it was found impossible to rouse her. She died at ten o'clock, having all the symptoms of death by morphia. Under these circumstances it was submitted by the prosecution that the conduct of the prisoner had been so heedless and reckless in giving 222 Cases on Criminal Law. such large doses of morphia, that he was criminally liable and was guilty of the offence of manslaughter.-^ Denman, J., in summing up the case to the jury, said, the law was this, whether a man be a medical man or not, if he dealt with dangerous medicines he was bound to use them with proper skill, and was bound to bring proper care, and employ proper caution, so that persons should not be endangered by want of skill, on his part,or want of caution or care in dealing with those deadly ingred- ients. Whether it be deadly weapons, or drugs, the law was the same, and it made no difference whether a medical man was dealing with a patient or, as a volunteer, dealing with his friend or his wife. The jury might be enlightened by looking at the rela- tions between the parties, and he was by no means prepared to say that, in judging of the evidence, it would not enhghten them very much, and enable them to appreciate the evidence on the main point, whether the man did not do his best, not in the sense of doing a bad best — but doing a good best, he being a medical man and therefore likely to know whether a drug was likely to be dangerous in the quantity administered or innocuous. There was ample evidence that the death of the deceased was caused by mor- phia. There was great difference of opinion as to the quantity of the drug which could be administered safely ; however, if the jury were satisfied that the death was caused by morphia ; and if it was administered without proper care, skill, and caution, and without a proper knowledge of morphia by the prisoner — whether in the weighing of the drug, or in any other way that would be clear negligence — he would not use the term " gross negligence," because it was liable to misinterpretation — and if that was so, the prisoner would be guilty of manslaughter. But if the drug was administered without want of skill and intending to do for the best — doing noth- ing, in fact, a skilful man might not do — then if the jury merely thought it was some error of judgment which anybody might have committed, the prisoner should be acquitted. Not Guilty? 1 Part of this case is omitted. 2 Accord : St. v. Hardister, 38 Ark., 605 (1882) ; C. v. Pierce, 138 Mass., 165 (1884).— Ed. Cases on Criminal Law. 22^ REGINA V. SHEPHERD. Court for Crown Cases Reserved, 1862. I LeigA <&* Cave, 147. The following case was reserved by Williams, J. The prisoner was indicted for the murder of her daughter, Mary Ann Ashton, and tried before me at the gaol delivery for the county of Devon in December last. The case for the prosecution was that the prisoner, having a great ill-will towards the deceased, had purposely neglected to procure a midwife, or other proper person, to attend her daughter, when she was taken in labor ; and that, by reason thereof, she died in child-birth. She was about eighteen years of age and unmarried. The prisoner, nearly four years before the trial, had married a second husband, who was not the father of the deceased. After the marriage the deceased lived with her step-father and her mother for some time, and then went out to service, occasionally returning to live with them when she was out of place, and, at such times, working at glove-making in order to earn her subsistence. About the beginning of the harvest before her death (which took place on October 26th, 1861), she came back from service to her step- father's house, and continued to reside with her mother and her step-father and their family until she died, except that she was absent staying with an aunt near Bridgwater for about six weeks, •whence she returned to her step-father's house on Tuesday, and •continued there till the following Saturday, when she died. At the close of the case for the prosecution, it was objected by the counsel for the prisoner that she was under no legal duty or obligation to procure, or try to procure, the attendance of a mid- wife for her daughter, and therefore, that she was not criminally responsible for neglecting to do so. I told the jury to consider, whether it was established by the evidence that the death of Mary Ann Ashton was attributable to the prisoner's neglect to use ordinary diligence in procuring the assistance of a midwife, or other proper attendant, and if it was not so established, to acquit the prisoner ; but if it was so established, then to consider, secondly, whether, by so neglecting, she intended 224 Cases on Criminal Law. to bring about the death of her daughter, and if so, I told the jury- to convict her of murder, but if not, of manslaughter. The jury convicted her of manslaughter. But I respited the judgment, in order to obtain the opinion of this Court, whether the objection to the conviction was well founded. This case was argued- on the 25th of January, 1863, before Erle, C. J., WiGHTMAN, J., WiLLiAMS, J., WiLDE B. and Mellor, J. The prisoner was unable, from poverty, to instruct counsel ;. but, at the request of the Court, H. J. Cole, who had defended the prisoner upon her trial, argued the case as amicus curia. Cole. The conviction must be quashed. Previously to the late statute, 14 & 15 Vict. c. 100, s. 4, the indictment must have set forth the means by which the death of the deceased was caused. It must have been caused either by an act of mis-feasance or non- feasance. If the act is one of non-feasance, it must be shown that the party charged was under an obligation to perform the act omit- ted, and had the means of fulfilling that obligation. Williams, J. It would have been sufficient if the indictment had shown facts from which the duty would arise, without setting forth the duty itself. The duty might be implied by law from the facts stated. Cole. No doubt. But there must be a duty, and the duty must arise either from contract or relationship. Here there was clearly no duty from contract ; but it is contended on the part of the prosecution that, from the facts as stated, there arose a duty from the relationship existing between the prisoner and the deceased. Now, there was no duty on the mother or step-father here to support this girl. The case of Regina v. St. Botolph's, Aldgate, Fol. 54, in which it was held, upon the construction of the 43 Eliz., c. 2, s. 7, that a step-father was bound to support his step-child during the Hfe of the wife, has been overruled in the subsequent case of Rex v. Munden,. I Str. 190, where it was held that the relationship meant by that stat- ute was blood relationship only. The cases on the subject are fully set out and commented upon in Cooper v. Martin, 4 East, 76; in which Rex v. Munden was approved of and followed. It is submitted, therefore, that neither the step-father nor the mother was bound to support the woman's child by a former husband before the 4 & 5 Wm. 4, c. 76, s. s 7. That statute makes the step-father liable for its support, until the child is sixteen, but not afterwards. Then, if Cases on Criminal Law. 225 they are not bound to supply the child with food, neither are they bound to supply it with medical attendance. In Rex v. Friend, Russ, & Ry. 20, the general opinion of the Judges was, " That it was an in- dictable offence, as a misdemeanor, to refuse or neglect to provide sufficient food, bedding, &c., to any infant of tender years, unable to provide for and take care of itself (whether such infant were child, ap- prentice or servant), whom a man was obliged by duty or contract to provide for, so as thereby to injure its health ; but that, in that case, the indictment was defective in not stating the child to be of tender years, and unable to provide for itself." In Russell on Crimes and Misdemeanors, it is said that, where the wife is to be considered merely as the servant of the husband, she will not be answerable for the consequences of his breach of duty, however fatal : Rex v. Squire, I Russ. C. & M. 19. Rexz/. Saunders, 7 C. & R 277, is to the same effect. There Alderson, B., says, "The prisoner is indicted as a mar- ried woman. If her husband supplied her with food for this child, and she wilfully neglected to give it to the child, and thereby caused its death, it might be murder in her. In these cases the wife is in the nature of the servant of the husband. It does not at all turn upon the natural relation of mother. To charge her, you must show that the husband supphed her with food to give to the child and that she wilfully neglected to give it." Erle, C. J. The wife is not liable, unless it is shown that the husband enabled her to perform the duty attempted to be cast upon her. Cole. No. The same point was similarly decided in Regina V. Edwards, 8 C. & P. 611. There was no duty on the mother in this case. The girl was of full age. Williams, J. The verdict must be taken to have found that the prisoner could have got a midwife, if she had chosen. I dis- tinctly told the jury that if she had no means of obtaining the ser- vices of a midwife, they ought to acquit her. It must be taken that she had such means. Mellor, J. And had funds ? Williams, J. It did not appear whether she had funds or not. Erle, C. J. By ordinary care she might have got a midwife. Wightman, J. That is, by going to a greater or less distance, where a midwife would have been found, who would have attended. 226 Cases on Criminal Law. Cole. It is admitted that there was the physical ability to get a midwife ; but there was no legal duty requiring her to do so. Wilde, B. Your argument is founded on the absence of any legal obligation. Cole. It is. Where there is no obligation there is no criminal responsibility. There was no more duty on her to get a midwife than on any stranger. Wilde, B. You contend that the duty, if any, arising from the presence of the girl in the house, bound the husband and not the wife. Cole. I do. In Regina v. Chandler, Dears. C. C. 453, there was no evidence that the prisoner, a single woman, had the actual possession of means to support her child ; and, although it was proved that she could have obtained such means by applying to the relieving officer of the union, it was held that that was not sufficient. There Pollock, C. B., says, " It is not sufficient to prove that the prisoner might by possibility have obtained the necessary means." In Regina v. Hogan, 2 Den. C. C. 277, judgment was arrested on the ground that the indictment omitted to aver that the prisoner had the means of supporting the child. Erle, C. J. In Chandler's Case the prisoner had the means in the sense that, if she had asked the relieving officer, she would have obtained support for the child. So here the prisoner had means in the sense that she could have asked the midwife to come in. She had not what maybe called manual control of the means. She had to go and ask a third person for help. S. Carter {Bere with him) for the Crown. The cases cited do not bear on the point in question. It was the natural duty of the prisoner to take steps to preserve the life of her daughter ; Black- stone's Commentaries by Stephen, Vol. 2, p. 281. The duty of parents, towards their children, when young, is clear. It is not clear that that duty ceases at any time. The duty here was incumbent upon the wife, as the husband was absent the whole of the day. Williams, J. That is a material fact and ought to have been stated in the case. He had gone out for his day's work, and was not at home, when his daughter was taken in labor. Carter. The duty naturally incumbent on the woman is sup- ported by the duty imposed by the 43 Eliz. c. 2, s. 7. That statutory duty is continued by the 5 Geo. i, c. 8 ; the 59 Geo., 3, c. 12, s. 26 ; and the 4 & 5 Wm. 4, c. 76. In Russell on Crimes, Cases on Criminal Law. 227- Vol. I, p. 493, by Greaves, there is a query by the learned editor, whether cases may not occur where the wife would be legally bound to apply for relief to the parish officers. That point came under dis- cussion in Regina v. Vann, 5 Cox C. C. 379. In Regina v. Mabbett, 5 Cox C. C. 339, Erle, J., is said to have been of opinion "that a woman who, having a child, neglects for four or five days going to the union for the purpose of getting support for it, she knowing that such neglect would be likely to produce the death of the child, it would be manslaughter." Erle, C. J. What became of the prisoner in that case ? Carter. She was acquitted. Erle, C. J. I should have been very much surprised, if any- one had been convicted before me of felony in not applying to a relieving officer for food. Carter. Here the jury must be taken to have found that there was a criminal neglect on the part of the mother. From the circum- stances of the case there could not be a continued neglect for four or five days as required in Regina v. Mabbett. In Regina v. Middle- ship, 5 Cox C. C. 275, it was held that, if a woman has the means and power of obtaining such assistance as may save the life of her child, and neglects to do so, she is guilty of manslaughter. There the child was newly born ; but the age is not material. If there is power to obtain assistance, and a voluntary abstinence from doing so, it is manslaughter. Then, does the duty cease to exist because the girl is eighteen years of age? In Marriott's Case, 8 C. & P. 425, the prisoner was convicted of manslaughter in neglecting to provide necessaries for the use of an old woman who was in no way related to him. So here the girl could not possibly procure assistance for herself Futher it is contended that there was an implied contract on the part of the mother to supply this girl with necessary assist- ance in her labor. In Cheeseman's Case, 7 Car. & R, 455, there was only the relationship of aunt and niece. Wightman, J. That case is totally different. There was actual violence. Carter. In Ferguson's Case, i Lewin, 181, the prisoner, who had undertaken to attend upon a woman in child-birth, was indicted for neglecting to take proper care of her, by means whereof she died, and was convicted of manslaughter. Here the prisoner under- took to attend upon her daughter. 228^ Cases on Criminal Law. Mellor, J. There is no evidence of that. Carter. In Regina v. Walters, i Russ. C. & M., 488, 3d ed., CoLTMAN, J.,.says, " If a party so conducts himself with regard to a human being, which is helpless and unable to provide for itself, as must necessarily lead to its death, the crime amounts to murder." So a gaoler maybe guilty of manslaughter, if he neglects to supply his prisoner with neccessaries ; Rex v. Huggins, 2 Str., 882 ; S. C. Ld. Raym., 1574. In Rex v. Simpson, i Lew., 172, it was held that a man had no right to hazard the consequences in a case in which medical assistance may be obtained, and that, if death ensues by reason of his not obtaining such assistance, he is guilty of manslaughter. Erle, C. J. We have to see whether, on the facts stated to us, there was an omission of any duty rendering the prisoner liable to be convicted of felony. It is important that the boundaries of crime should be well defined. They are not so definite as they might be in cases of negligence ; and our duty is to consider and see whether there are any facts here to bring this case within the principle of any of the cases where the omission of a duty resulting in death has been held to be manslaughter. The facts of the case are that the. prisoner did not procure the aid of a midwife for her daughter during child-birth. In consequence of her omitting to do so, a difficulty occurred, and death ensued. Was there a breach of duty for which she would be responsible in a criminal court in not obtaining that aid ? We must take it that, if she had used ordinary care, she would have procured the attendance of a midwife-; that she knew where a midwife could be found ; and that, if the mid- wife had been summoned, she would have attended. Of course her skill must have been paid for ; and there is no evidence that the woman had the means at her command of paying for that skill. The midwife would probably have attended without being paid. Yet the prisoner cannot be criminally responsible for not asking for that aid which, perhaps, might have been given without compensation. Aid of this kind is not always required in child- birth ; and sometimes no ill consequences result from its absence. Here, however, it was wanted, and was not applied. These facts do not seem to me to fall within the principle of any of the cases that have been cited. The cases where the person, whose death is caused, has been brought into circumstances where he cannot help Cases on Criminal Law. 229 himself, as by imprisonment, by the act of the party charged are clearly distinguishable. There the persons imprisoned are helpless, and their custodians, by the fact of their being so, have charged themselves with the support of their prisoners. The case of parent and child of tender years is also distinguishable, as are the other cases where such a duty is imposed by law or contract, as in the case of master and apprentice. Here the girl was beyond the age of childhood, and was entirely emancipated. Then, being in the prisoner's house, she is brought to bed, and the mother omits to procure her a midwife. I cannot find any authority for saying that that was such a breach of duty as renders her, in the event which ensued, liable to the consequences of manslaughter. Williams, J. I am of the same opinion and for the same reasons. There was no legal duty binding the prisoner to procure the aid of a midwife. Williams, J. I am of the same opinion. No doubt, the prisoner is morally guilty ; but legally she is not punishable. Wilde, B., and Mellor, J., concurred. Conviction quashed. REGINA V. MARRIOTT. Central Criminal Court, 1838. 8 Carrington &> Payne, 425. Murder. The first count of the indictment stated that it was the duty of the defendant to provide one Mary Warner, under the care and control of the defendant, with sufficient meat, drink, clothing, firing and medicine and, that by the neglect of the defend- ant so to provide said Mary Warner with sufficient meat, etc., said Mary Warner became mortally diseased, and of said mortal disease, died. There was a second count charging that the defendant wilfully, etc., assaulted Mary Warner, and confined her in a certain dark, cold, unhealthy and unwholesome room,without proper food, etc., by means of which she died. From the evidence of the prosecution it appeared that the deceased, Mrs. Warner, who was about 74 years of age, had lived for some time with a sister in Cannon street, in the city, in a house 230 Cases on Criminal Law. which they let out in lodgings, and of which the sister had a lease under the Pewterers' Company. Upon the death of the sister whose name was Reepe, in March, 1837, the prisoner attended at the funeral, and, among others, a grandson of Mrs. Reepe, named Charles Reepe, was present. He was called as a witness, and gave his evidence as follows : — " Mrs. Warner's sister was my grandfather's second wife ; I remember the death of Mrs. Reepe ; I went to her funeral, and saw the prisoner there ; after the funeral he called me on one side, and asked me if I should have any objection to pay for my cloak, and my sister's, and my brother's also, as he did not wish to put Mary Warner to any expense, and he should pay for his. He told me he was left executor ; he shewed me about a quarter of a sheet of writing paper as a will, and told me he had found it by mere chance lying on the ground. I observed Mrs. Warner was much grieved, and took a chair and sat down by the side of her, and told her she should come and live at home with me, and I would make her happy and comfort- able for the remainder of her life ; her reply was, that it was a kind offer, certainly. The prisoner said : " No, no, sir ; she shall go home and live along with me, as you are no relation whatever." I asked him what relation he was. He said he was a townsman, and that he had buried Mrs. Reepe's sister, and it was Mrs. Reepe's wish that he should bury her too ; in fact, that he was executor ; he said : "Mrs. Warner is going home to live along with me until affairs are settled, and I will make her happy and comfortable." To prove the interference of the prisoner in Mrs. Warner's affairs, as well as to show that he had undertaken to provide her with food and other necessaries, a Mrs. Cruikshank was called as a witness. She said : " I am the wife of Robert Cruikshank, and live at No. 34 Cannon street, city; some day previous to the lOth of October I went with my husband to No. i Dolphin court ; I there saw the prisoner and his wife ; Mr. Marriott asked me to write an agreement about the house No. 34 Cannon street, of which Mr. Cruikshank was to take the upper part ; I heard the prisoner mention the name of Mary Warner to his wife ; he talked in an in- distinct tone ; I could hear nothing more than the name of Mary Warner ; Mrs. Marriott dissented to what he said, whatever it was, and he again repeated it to her, and she again dissented ; I asked the prisoner what interest Mrs. Warner had in the house, and he Cases on Criminal Law. 231 said, " None whatever " ; he asked me " If I remembered a con- versation he had with me respecting the decease of Mrs. Reepe" ; I told him " Perfectly well " ; he said, " Did I not remember he had told me at Mrs. Reepe's decease, that Mrs. Warner was her sister;" I inquired in what way Mrs. Warner could be a party to the agree- ment ; his reply was, " None whatever." He said something about her not being capable of undergoing the fatigue ; that at her advanced age she was quite incapable ; that he had been accus- tomed to let lodgings ; there was an agreement ultimately signed ; I produce it; it is not stamped; after it had been signed, I inquired whether Mrs. Warner was a relative, as he seemed to take such an interest in her affairs; he said, "None at all" ; he said, respecting the house in Cannon street, Mrs. Warner having been accustomed to let lodgings, he had taken the lease of the house of the Pewterers' Company, on condition of paying up an arrear of rent ; that they had given him four years to pay it by three instalments, 20/. of which he had paid, in consideration of which he had undertaken to keep Mrs. Warner comfortable as long as she lived ; I wished to purchase some of the furniture, and he said I might make my own selection ; he did not say to whom it belonged ; I understood it was his own property ; he did not speak of it as anybody's property but his own ; he appointed a Mr. Kelly to value the furniture in the house in Cannon street to Mr. Cruik- shank, and a Mr. Phillips was appointed to value it for us ; the amount of the valuation was 37/., within a few shillings ; that has not been paid ; we were to pay it to Mr. Marriott. On her cross- examination she said : — " When the name of Mary Warner was mentioned, and Mrs. Marriott shook her head, the prisoner said, ' Yes, yesj better ; ' and the name of Mary Warner was put into the agreement, because Mrs. Marriott asked me to do so." The clerk to the Pewterers' Company was called, and he said " there was never any premises in Cannon street let to the prisoner ; he never at any time took a lease in any shape from the Pewterers' Company ; he has paid two instalments of il/. i$s. each for arrears of rent due from Mrs. Reepe ; he paid it as her execu- tor, he so stated." On his cross-examination he was asked whether there was not a petition sent in on the part of Mary Warner, as the sister of Mrs. Reepe, to let her off the arrears in consideration of her long tenancy? His reply was : "There was a memorial sent 232 Cases on Criminal Law. in in the name of the prisoner ; he stated his object to be to serve Mary Warner ; the prayer of the petition was not acceded to ; he made himself answerable for the amount, and signed a written memorandum." The will of Mrs. Reepe was read ; it was dated the 26th of March, 1836, bequeathing to Mrs. Warner all her effects, and the lease of the house in Cannon street. A clerk in the Prerogative Office was called, and stated that the personal property was sworn under 100/., and that letters of administration were granted the 20th of July, 1837; that Mrs. Warner must have appeared personally ; and that the prisoner was one of her sureties for the proper administration of the effects.' Patteson, J., in summing up (after stating the first count of the indictment and observing upon certain parts of the evidence) said : If the prisoner was guilty of wilful neglect, so gross and wilful that you are satisfied he must have contemplated the death of Mrs. Warner, then he will be guilty of murder. If, however, you think only that he was so careless, that her death was occasioned by his neghgence, though he did not contemplate it, he will be guilty of manslaughter. The cases which have happened of this description have been generally cases of children and servants, where the duty has been apparent. This is not such a case ; but it will be for you to say, whether from the way in which the prisoner treated her, he had not by way of contract, in some way or other, taken upon him the performance of that duty which she, from age and infirmity, was incapable of doing. [His Lordship then read the statements of Mr. Reepe and Mrs. Cruikshank, and continued] This is the evidence on which you are called on to infer that the prisoner undertook to provide the deceased with necessaries ; and though, if he broke that contract, he might not be liable to be indicted during her life, yet, if by his negligence her death was occasioned, then he becomes criminally responsible. Verdict. Guilty of manslaughter only. ^ The statemement is abridged and a portion of the evidence not bear- ing on the duty of the defendant is omitted. Cases ON Criminal Law. 233 REGINA V. POCOCK. Queens Bench, 1851. 5 Cox C. C, 172. This was a rule to quash a coroner's inquisition which had been removed into this court by certiorari. The inquisition alleged that the defendants were the trustees of a public road under an act of Parliament ; that it was their duty to contract for the due reparation of the said road ; that they feloniously did neglect and omit to contract for the repair of the same, whereby it became very miry, ruinous, deep, broken, and in great decay ; and that a cart, which the deceased was driving along the road, fell into a hole in the road, and by reason thereof the deceased was thrown out, and sustained the injuries of which he afterwards died. Charnock showed cause. This case is not distinguishable from those of persons who have the charge of machinery at mines, of signals, or locomotives on railways, and the like ; and there are many precedents of indictments for manslaughter in such cases where death has been occasioned by a neglect of duty on the part of the persons so intrusted ; R. v. Barrett, 2 Car. & K. 343 ; R. V. Haines, ib., 368 ; R. v. Gregory, S B. & Ad. 555. Here a pub- Uc duty was cast upon the trustees, and they were authorized to raise money by rates for the purpose ; and if their neglect of duty has caused the death of another, they are guilty of manslaughter. Hayes, contra, was not called upon. Lord Campbell, C. J. The cases cited show a personal duty, the neglect of which has directly caused death ; and, no doubt, where that is the case, a conviction of manslaughter is right. But how do those apply to trustees of a highway? How can it be said that their omission to raise a rate, or to contract for the reparation of the road, directly causes the death ? If so, the surveyors or the inhabitants 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 crim- inal law in a most alarming manner, for which there is no principle or precedent. Patteson, J. This is really too extravagant. WiGHTMAN, J. Concurred. 234 Cases on Criminal Law. Erle, J. In all the cases of indictment for manslaughter, where the death has been occasioned by omission to discharge a duty, it will be found that the duty was one connected with life, so that the ordinary consequence of neglecting it would be death. Such are the cases of machinery at mines, of engine-drivers, or the omission to supply food to helpless infants. Inquisition quashed. UNITED STATES v. MOORE. United States District Court for District of Massachu- setts, 1873. 2 Lowell, 232. Indictment. — False Swearing. — The jury found the defend- ant guilty on the second count ; ^ and he moved for a new trial upon several rulings, which had been duly reserved, but are not necessary to be here referred to, and upon one part of the charge, which is recited in the opinion of the court. Lowell, J. I have made up my mind that my instruction to the jury upon one point was not sufficiently full and explicit, and may, perhaps, have misled them, to the injury of the defendant. I charged in the words attributed to Judge Sprague, in U. S. v. Atkins, I Sprague, 558, "that the jury must be satisfied that the defendant swore to a declaration which, at the time, he knew to be false ; and that may be either by swearing to a fact which he knows is not true, or by swearing to his knowledge of the fact when he knew he had no such knowledge.'' There is some difference of opinion in the United States as to whether perjury, or false swearing in the nature of perjury, can be committed by mere rash and reckless statements on oath ; and though my charge, rightly understood, did not authorize the jury to convict the defendant, if the evidence only showed recklessness, yet I am not sure it may not have been understood in that sense. Indeed, I think my own views were not quite distinct upon the point. Mr. Bishop, in his treatise on Criminal Law (3d ed.) vol. i, ^ Part of this case is omitted. Cases on Criminal Law. 235 § 396, says : " Probably the better opinion is, that perjury is not committed by any mere reckless swearing to what the witness would, if more cautious, learn to be false ; but the oath must be wilfully corrupt." In a note, he quotes, as opposed to his own opinion, an extract from a report of the penal code commissioners of New York : " An unqualified statement of what one does not know to be true is equivalent to a statement of that which one believes to be false." The latter proposition may be nearly true, so far as the effect of the statement on others is concerned ; but it is not a sound legal definition of perjury. I agree, rather, with Mr. Bishop's opinion, that there must be some fact falsely stated, with knowledge of its falsity, before there can be perjury. It has been held, indeed, by an able and learned court, that rash swearing, without any reasonable or probablecauseof belief of the fact sworn to, is perjury : Com. v. Cornish, 6 Binney, 249. That was a case in which the defendant had been wounded in a riot, at night, and had sworn to the prosecutor as the person who wounded him. The doctrine was denied to be law, in an able and careful charge to the jury in the. Circuit Court of the United States, sitting in the same State : U. S. v. Shellmire, Baldwin, 370. It has been virtually denied in this State, in Com. v. Brady, 5 Gray, 78, where the defendant swore that he saw a man running from a burning build- ing, whom he believed to be A. The judge charged in, the lan- guage of the court in Pennsylvania, and the ruling was set aside. The court, to be sure, put their decision upon the ground that the defendant only swore to his belief; but personal identity is almost always a matter of belief An affidavit or statement, that I saw a certain person, does not usually import anything more than that I saw some one whom I believed, and still believe, to be that person. If I saw no one, or if I believed the person to be different from him I have named, it is perjury ; but not otherwise. If any material circumstance is falsely stated, such as that the witness was present, and heard a certain conversation, it has been held to be perjury if he were not present, though the conversation really occurred : Peo- ple V. McKinney, 3 Parker, Crim. C, 510. In such a case, the materiality of the circumstance would be the only question. Grant- ing the materiality of the fact, whether it be a statement of knowl- edge, or of information or belief, or a simple statement of a fact, if the witness knows that the fact is not so, or that he has no such 236 Cases on Criminal Law. information, or no such belief, he is guilty. But if he only swears rashly to his belief of a matter of which he does not profess to have personal knowledge, the jury cannot be permitted to decide on the reasonableness of his belief, except as tending to show whether he did believe. In short, perjury is always of some matter of fact ; and belief may be a fact. In this case, the only questions of fact put in issue by the indictment and by the law are : Was the statement false, and did the defendant know it to be false? In this respect, it is like the offence of passing a counterfeit note, knowing it to be counterfeit. Proof of reasonable cause of behef may warrant a jury to find knowledge ; but it is not the legal equivalent of knowledge. The true question, therefore, for the jury was the one which the indictment points out : Did the defendant swear to this fact, knowing it to be false ? I do not mean to say that there was not evidence from which the jury might have answered this question in the affirmative ; but, as I cannot say how they would have answered it, I feel it to be my duty to grant a new trial. New trial ordered. Cases on Criminal Law. 237 Chapter V. Intent as Affected by Conditions. SECTION I. IGNORANCE OR MISTAKE OF LAW. REX V. THURSTON. King's Bench, 1649. I Levinz, 91. Indictment of murder, and on a special verdict found at the Assizes at Bury, the case was : in Hillary Term, 1659, ^ latitat issued to arrest him, returnable in Easter Term, 1660, on which the twenty-ninth of May he was arrested by a warrant thereupon, and upon that arrest the bailiff was killed ; and afterwards an act is made for the confirmation of all judicial proceedings, which related to the first day of the parliament, viz., 15 April, 1660, and the sole question was, if by the relation of the act which made the proceedings legal and the arrest good (which else had been void and without authority), this killing be murder. And it was argued at the bar by Kelynge, for the King, and by Jones, for the defendant : And Kelynge said, that by relation all the process is made good, for it shall relate to the first day of the parliament; /(?«fj argued the Act should relate to the first day of the parliament, but not to such intent as to make it murther ex post facto, which was not so when the fact was done. The Court said nothing; but afterwards, in Easter Term, 16 Car. 2, I heard Thurston plead his pardon of this murder, whereby it seems as if the opinion of the Court was against him. 238 Cases on Criminal Law. STATE V. BOYETT. Supreme Court of North Carolina, 1849. 10 Iredell, 336. Pearson, J.^ " Ignorantia legis neminem excusat." Every one competent to act for hiniself is presumed to know the law. No one is allowed to excuse himself by pleading ignorance. Courts are compelled to act upon this rule, as well in criminal as civil matters. It lies at the foundation of the administration of justice. And there is no telling to what extent, if admissible, the plea of ignorance would be carried, or the degree of embarrassment that would be introduced into every trial, by conflicting evidence upon the question of ignorance. In civil matters, it is admitted, the presumption is frequently not in accordance with the truth. The sales of property are com- plicated systems — the result " not of the reason of any one man, but of many men put together ; " hence, they are not often under- stood, and more frequently not properly applied, and the presump- tion can only be justified upon the ground of necessity. But, in criminal matters, the presumption most usually accords with the truth. As to such as are. mala in se, every one has an innate sense of right and wrong, which enables him to know when he violates the law, and it is. of no consequence if he be not able to give the name, by which the offence is known in the law books, or to point out the nice distinctions between the different grades of offence. As to such as are " mala prohibita" they depend upon statutes printed and published and put within the reach of every one ; so that no one has a right to complain if a presumption, necessary to the administration of the law, is applied to him. To allow ignorance as an excuse would be to offer a reward to the ignorant. The defendant voted, when he was not entitled by law to vote. He is presumed to know the law. Hence, he voted, knowing that he had no right, and, acting with this knowledge, he neces- sarily committed a fraud upon the public — in the words of the Act ' The opinion only is printed. Cases on Criminal Law. 239 he knowingly and fraudulently voted when he was not entitled to vote. It being proved on the part of the State that he voted, not having resided within the bounds of the company for six months next preceding the election, a case was made out against him. He offered to prove, for the purpose of rebutting the inference of fraud, that he had stated the facts to a respect- able gentleman, who advised him he had a right to vote. His Honor held the testimony inadmissible. We concur in that opinion. The evidence had no tendency to rebut the inference of fraud, for the inference was made from his presumed knowledge, of the law, and that presumption could not be met by any such proof, without introducing all the evils which the rule was intended to avoid. The question, in effect, was : shall a man be allowed, in excuse of a violation of the law, to prove that he was ignorant of the very law, under which he professed to act, and under which he claimed the privilege of voting ? If he was not ignorant of the law, and that he cannot be heard to allege, then, he voted knowingly, and, by necessary inference, fraudulently. An indictment for extortion charges that the defendant received the fee " unlawfully, corruptly, deceitfully, and extorsively. " This averment the State must prove. It is done by showing that the defendant received what the law does not allow him to take ; for the presumption is " he knew the law upon the subject of fees to be taken by himself," and the inference from such knowledge is, that he acted "corruptly and deceitfully," (words quite as strong as knowingly and fraudulently), unless it is shown that he did so by some inadvertence, or mistake in calculation. He cannot excuse himself for taking more than the legal fee by saying that he was misled by the advice of an attorney. If such, or like excuses were admitted, it would hardly ever be possible to convict. He might always contrive to ground his conduct upon misappre- hension or improper advice. State v. Dickens, i Hay, 406. It would be a different question if the defendant had stated the facts to the judges of the election, and they had decided in favor of his right to vote, for their decision would rebut the presumption of knowledge on his part, in a manner contemplated by law. 240 Cases on Criminal Law. The case was ably argued for the defendant. It was insisted that it was necessary for the State to aver and prove that the defendant voted knowingly and fraudulently. That position is admitted. The reply is, the averment was made and was proved ; for proof being made that he voted when he was not entitled to vote, the presumption is that he knew the law, and fraud is the necessary inference, as corruption and deceit were in the case above cited. It cannot be contended, that to fix him with knowledge, the State must show that some one read and explained the law to him ; or to fix him with fraud, that it must be proven he had been bribed. If so, the statute is a dead letter. Our attention was called to the fact that the Act of , 1 844, making the offence indictable, uses the words, " knowingly and fraudu- lently," which words are not used in the Act of 1777, imposing a penalty. To incur the penalty under the Act of 1777, the voting must be unlawful, and it must be done knowingly and fraudu- lently, in the sense above explained. If one, having a deed for fifty acres of land, votes in the Senate, and it turns out that the deed only contains forty-nine acres, the penalty is not incurred, unless he knew the fact at the time he voted. So, if one votes for a constable, and it turns out that the dividing line includes him in another company, there is not in either case that criminal intent, which is a necessary ingredient of the offence, whether it be pun- ished by a penalty or by indictment. The Act of 1844 expresses in so many words what the law would have implied. It is a strained inference, that, by so doing, the Legislature intended to make the case of illegal voting an " exception," and to take it out of the rule "ignorantia legis'' a rule which has always been acted upon in our law, and in the laws of every nation of which we have any knowledge, and without which, in fact, the law cannot be administered. The inference sought to be made results in this : the Legislature did not intend the Act of 1844 to be carried into effect; it was intended to he " brutum fulmen." No reason has been suggested for making an exception in this case. The only additional qualification, to that of a voter for a member of the House of Commons, is a residence of six months in the captain's company. This is not complicated or difficult to be understood. Why make the exception and offer a reward for ignorance in this partic- Cases on Criminal Law. 241 ular case ? Such a construction cannot be admitted, unless the law makers had declared their intention by positive enactment. Per Curiam. There is no error in the Court below, and the same must be so certified.^ CUTLER V. STATE. Supreme Court of New Jersey, 1873. 36 New Jersey Law, 1 25. The opinion of the Court was delivered by Beasley, C. J.^ The defendant was indicted for extortion in taking fees to which he was not entitled, on a criminal complaint before him as a justice of the peace, The defence which he set up, and which was over- ruled, was that he had taken these moneys innocently, and under a belief that by force of the statute he had a right to exact them. This subject is regulated by the twenty-eighth section of the act for the punishment of crimes. Nix. Dig. 197. This clause declares that no justice or other officer of this State shall receive, or take any fee or reward, to execute and do his duty and office, but such as is or shall be allowed by the laws of this State, and that "if any justice, etc., shall receive or take, by color of his office any fee or reward whatsoever, not allowed by the laws of this' State, for doing his office, and be thereof convicted, he shall be punished," etc. If the magistrate received the fees in question without any corrupt intent, and under the conviction that they were lawfully his due, I do not think such an act was a crime by force of the statute above cited. ^Accord: Illegal voting, McGuire v. St., 7 Humph., 54 (1846); keeping gaming house, Winehart v. St., 6 Ind., 30 (1854) ; statutory larceny, St. V. Welch, 73 Mo., 284 (1880); bigamy, P. -v. Weed, 36 N. Y., 628 (1883); murder, Weston v. C, lii Pa., 251 (1886) ; opening grave, St. v. McLean, 121 N. C, 589 (1897); unlawful discrimination, St v. Railway, 122 N. C, 1052 (1898); compounding crime, St. v. Carver, 69 N, H., 216 (1897) ; false imprisonment, Begley v. C, 60 S. W. (Ky.) 847 (1901); cf. C. V. Bradford, 9 Mete, 268 (1845).— Ed. 2 Part of the opinion relating to another point is omitted. 242 Cases on Criminal Law. But it is argued on the part of the prosecution, that as the fees to which the justice was entitled are fixed by law, and as he cannot set up, as an excuse for his conduct his ignorance of the law, his guilty knowledge is undeniable. The argument goes upon the legal maxim ignorantia legis neminem excusat. But this rule, in its application to the law of crimes, is subject, as it is sometimes in respect to civil rights, to certain important exceptions. Where the act done is malum in se, or where the law which has been infringed was settled and plain, the maxim, in its rigor, will be applied ; but where the law is not settled, or is obscure, and where the guilty intention, being a necessary constituent of the particular offence, is dependent on a knowledge of the law, this rule, if enforced, would be misappHed. To give it any force in such instances, would be to turn it aside from its rational and original purpose, and to convert it into an instrument of injustice. The judg- ments of the Courts have confined it to its proper sphere. When- ever a special mental condition constitutes a part of the offence charged, and such condition depends on the question whether or not the culprit had certain knowledge with respect to matters of law, in every such case it has been declared that the subject of the existence of such knowledge is open to inquiry, as a fact to be found by the jury. This doctrine has often been applied to the offence of larceny. The criminal intent, which is an essential part of that crime, involves a knowledge that the property taken belongs to another ; but even when all the facts are known to the accused, and so the right to the property is a mere question of law, still he will make good his defence if he can show, in a satisfactory man- ner, that being under a misapprehension as to his legal rights, he honestly believed the articles in question to be his own. Rex v. Hall, 3. Car. & P., 409 ; Reg. v. Reed, Car. & Marsh. 306. The adjudications show many other applications of the same principle, and the facts of some of such cases were not substantially dissimilar from those embraced in the present inquiry. In the case of The People v. Whaley, 6 Cow., 661, a justice of the peace had been indicted for taking illegal fees, and the Court held that the motives of the defendant, whether they showed corruption or that he acted through a mistake of the law, were a proper question for a jury. The case of The Commonwealth v. Shed, i Mass., 228, was put before the jury on the same ground. This was likewise Cases on Criminal Law. 243 the ground of decision in the case of The Commonwealth v. Bradford, 9 Mete, 268, the charge being for illegal voting, and it being declared that evidence that the defendant had consulted counsel as to his right of suffrage and had acted on the advice thus obtained, was admissible in his favor. This evidence was only important to show that the defendant in infringing the statute had done so in ignorance of the rule of law upon the subject. Many- other cases resting on the same basis might be cited ; but the fore- going are sufficient to mark clearly the boundaries delineated by the courts to the general rule, that ignorance of law is no defence when the mandates of a statute have been disregarded or a crime has been perpetrated. That the present case falls within the excep- tions to this general rule, appears to me to be plain. There can be no doubt that an opinion very generally prevailed that mag- istrates had the right to exact the fees which were received by this defendant, and that they could be legally taken under similar cir- cumstances. The prevalence of such an opinion could not, it is true, legalize the act of taking such fees ; but its existence might tend to show that the defendant, when he did the act with which he stands charged, was not conscious of doing anything wrong. If a justice of the peace, being called upon to construe a statute with respect to the fees coming to himself, should, exercising due care, form an honest judgment as to his dues, and should act upon such judgment, it would seem palpably unjust, and therefore inconsistent with the ordinary grounds of judicial action, to hold such conduct criminal if it should happen that a higher tribunal should dissent from the view thus taken, and should decide that the statute was not susceptible of the interpretation put upon it. I think the defendant had the right in this case to" prove to the jury that the moneys, which it is charged he took extorsively, were received by him under a mistake as to his legal rights, and that as such evidence being offered by him was overruled, the judgment on that account must be reversed.^ 1 Accord: Perjury, U. S. v. Conner, 3 McLean, 573 (1845); malicious mischief, Goforth v. St., 8 Humph., 37 (1847) ; trespass, St. w. Hause, 71 N. C, 518 (1874); conspiracy, P. v. Powell, 63, N. Y., 88 (1875); larceny, P. V. Husband, 36 Mich., 306 (1877) ; extortion, Leeman v. St, 35 Ark., 438 (1880). See also Reg. v. Allday, 8 Car. & P., 136 (1837).— Ed, ^44 Cases on Criminal Law. SECTION II. IGNORANCE OR MISTAKE OF FACT. In the case of Sir William Hawksworth, related by Baker in his chronicle of the time of Edward IV., p. 223 ^sud anno, 147 1], he being weary of his life and willing to be rid of it by another's hand, blamed his parker for suffeHng his deer to be destroyed, and commanded him that he should shoot the next man that he met in the park that would not stand or speak. The knight himself came in the night into the park, and, being mfet by the keeper, refused to stand or speak. The keeper shot and killed him, not knowing him to be his master. This seems to be no felony, but excusable by the statute of Malef adores in parcis, for the keeper was in no fault, but his master ; but, had he known him, it had been murder. / Hale, P. C, 4.0. COMMONWEALTH v. PRESBY. Supreme Judicial Court of Massachusetts, 1859. 80 Massachusetts, 65. Indictment for an assault and battery. Trial in the Court of Common Pleas, in Middlesex, at October Term, 1858, before Aiken, J., to whose rulings the defendant alleged exceptions, the material part of which is stated in the opinion of the Court. The decision was made in i860. Hoar, J. The defendant, a police officer, and watchman of the city of Lowell, arrested one Harford for being intox- icated in the public street in .that city in the night time, and committed him to the watch house. For this act he was indicted for an assault and battery upon Harford ; and at the trial the presiding judge was asked to instruct the jury, "that, if said Presby had reasonable and probable cause to believe that said Harford was intoxicated at the time of the arrest, then he was authorized in taking and retaining said Harford." But the judge Cases on Criminal Law. 245. refused so to rule, and instructed the jury that if Harford was .not intoxicated, they should find the defendant guilty ; to which refusal and instruction exceptions were taken. The duty and power of a police officer to make an arrest without a warrant, for the offence of intoxication, arise from the Statute of 1855, c. 215, § 23, which provides that " if any person shall be found in a state of intoxica- tion, in any highway, street, or other public place, any sheriff, deputy sheriff, constable, watchman or police officer, shall, without any warrant, take such person into custody, and detain him in some proper place, until, in the opinion of such officer, he shall be so far recovered from his intoxication as to render it proper to carry him before a court of justice," &c. It is argued on behalf of the Commonwealth that if Harford was not intoxicated, this statute affords no justification for his arrest, because the fact, and not a suspicion or belief, however reasonable, of intoxication, is requisite to justification. This may be true in regard to the civil rights of the person whose liberty is invaded ; and in a civil action the wrong-doer must usually justify his act, or be held responsible for the damages which it has occasioned. And it may be conceded that if the defendant had no other defence:to this indictment than a justification of the act, his defence fails. We come then to the consideration of the question, whether it is true, as a universal proposition, that every imprisonment, arrest or detention of the person, which is not capable, of a technical justification, constitutes a criminal assault and battery. However loosely the doctrine may have been stated in elementary books, it is evident, upon careful consideration that this cannot be so; and we are aware of no adjudged case in which it has been so deter- mined. To constitute a criminal act, there must be, as a general rule, a criminal intent. "An unwarrantable act," says Blackstone, '' without a vicious will, is no crime at all." 4 Bl. Com. 21. "Ignorance or mistake is a defect of will ; when a man, intending to do a lawful act, does that which is unlawful. For here the deed and the will acting separately, there is notthat conjunction between them, which is necessary to form a criminal act. But this must be an ignorance or mistake of fact, and not an error in point of law." 4 Bl. Com. 27. This principle is recognized by all the best author- ities on, criminal law. Thus in i Russell On, Crimes,;(7th Amer. 246 Cases on Criminal Law. ed.) I, it is said that "without the consent of the will, human actions cannot be considered as culpable ; nor where there is no will to commit an offence, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offences." And in I Hale's Pleas of the Crown, 15, the general doctrine is stated, that "where there is no will to commit an offence, there can be no transgression." See also i Gabbett Crim. Law, 4. And in all these writers, ignorance of fact, unac- companied by any criminal negligence, is enumerated as one of the causes of exemption from criminal responsibility. As an application of the rule, Levett's case, cited by Justice Jones in Cro. Car. 538, is most often quoted. In that case, upon an alarm of thieves in the night time, the master of the house killed a person found secreted in a closet, who was not a thief, but was there by lawful means ; but the act having been done under the reasonable belief that the person killed was a felon, the excuse was held sufficient. And Hale gives the illustration of a sentinel firing at his commanding officer, who advances to his post, under the reasonable belief that he is an enemy, as coming within the same rule. I Hale, P. C, 42. The principle is applied directly to the case of assaults, in i Russell on Crimes, 754. "Whether the act shall amount to an assault must in every case, be collected from the intention." And it has been said by this court, that " it is undoubtedly true, that in order to support an indictment for an assault and battery, it is necessary to show that it was committed ex intentione, and that if the criminal intent is wanting, the offence is not made out." Commonwealth v. Randall, 4 Gray, 38. The court indeed add that " this intent is always inferred from the unlawful act," but by an unlawful act is meant intentional violence, without justification or excuse; and where ignorance of fact is an excuse, the inference is rebutted. Insanity or idiocy has always been held an excuse for an act other- wise criminal, because there is no criminal intent accompanying the act. There may be in many cases some difficulty in applying these familiar principles to the facts proved ; and great caution should cer- tainly be used in admitting the excuse of ignorance or mistake, so as to exclude from its protection those who do not exercise all reason- able means to inform themselves before they commit an act which Cases on Criminal Law, 247 is apparently an invasion of private right, and a breach of the public peace ; and not to sanction violence under circumstances where there is no necessity for any action whatever. But in the case we are now considering, the duty is made im- perative upon the officer to make the arrest without a warrant, if he finds an intoxicated person in the street. The language of the statute is not that he " may," but that he " shall " arrest the offender. If he neglects this duty, he is liable to an in- dictment. He has then this alternative presented, that if the person whom he sees is really intoxicated, he must arrest him, or suffer the consequences of official misconduct. The fact of intoxication, though usually easy to ascertain, is not a fact capable of demon- stration, or of ascertainment with absolute certainty, in most cases. Suppose a watchman to find a man in the gutter, stupefied, and smelling very strongly of spirituous liquors. The man may have fallen in a fit, and some person have tried to relieve him by the application of a stimulant, and then have left him in search of assistance. Or, in another case, the person arrested may have been simulating, for purposes of amusement or mischief, the appearance and conduct of drunkenness. Is the officer to be held a criminal, if, using his best judgment and discretion, and all the means of in- formation in his power, in a case where he is called upon to act, he makes a mistake of fact, and comes to a wrong conclusion ? It would be singular, indeed, if a man deficient in reason would be protected from criminal responsibility; and another, who was obliged to decide upon the evidence before him, and used in good faith all the reason and faculties which he had, should be held guilty. Upon the exceptions before us, we therefore feel bound to decide, that the defendant, being required by his official duty to make the arrest, if the fact of intoxication existed ; and acting in a matter which did not admit of absolute certainty ; if he acted in good faith, upon reasonable and probable cause of belief, without rashness or negligence, he is not to be regarded as a criminal because he is found to have been mistaken ; and that the excep- tions must be sustained, and a new trial granted. R, B. Caverly, for the defendant. 6". H. Phillips (Attorney General), for the Commonwealth, cited St. 1855, t. 215, § 23 ; Rohan v. Swain, 5, Cush., 281. 248 Cases on Criminal Law. STATE V. NASH. Supreme Court of North Carolina, 1883. 88 North Carolina, 618. Indictment for assault and battery, tried at the Fall Term, 1882, of Richmond Superior Court, before Gilmer, J. The defendant was put upon the stand as a witness in his own behalf; admitted that he fired the gun at the crowd, and proposed to prove that before he fired, his child, who was sleeping near a .window in the house, through which the noise of the bells and horns and firing was heard and the flash of the firing seen, rose up and ■ran to the witness with blood on her face (caused as he afterwards learned, but did not then know, by her running against the end of a table), and under the impulse of the moment, believing that she had been shot, he got his gun and went to the door, and, seeing, the flash of pistols fired, as he supposed, by the retreating crowd, 'fired his gun at and into the crowd. This evidence was objected to by the state and excluded by the court, and the defendant excepted. The court instructed the jury that the defendant had not shown justification for the shooting. Verdict of guilty ; judgment ; appeal by the defendant' Ashe, J. fhe question presented by the record is, was there error in the refusal of the judge to receive the evidence offered by the defendant ? We are of the opinion there was error in rejecting so much of the proposed testimony as tended to show, on the part of the defendant, a reasonable ground of belief that the trespassers upon his premises had fired into his house and wounded his child. It may be, as testified by the prosecutor, that the band of young men who went to the defendant's house on the night in ques- tion only intended innocent amusement ; but there is one unusual and rather extraordinary feature in the transaction, that the party intending a mere serenade should, on such an occasion, carry guns and pistols ; they are certainly very unusual instruments of music in the hands even of a calithumpian band. They I entered the enclosure, twenty in numb(jr ; marched 1 The statement of facts is abridged. Cases on Criminal Law. 249 round the house, blowing horns, ringing bells and firing guns and pistols, which must have greatly frightened the family and the defendant himself, unless he is a man of more than ordinary cour- age. But whether awed or not by such a display of numbers and lawlessness, yielding to the dictates of prudence, he submitted to the humiliating indignity and remained within doors until his httle daughter, as he proposed to show, ran to him with her face bleed- ing ; and believing, as was natural under the circumstances, that she had been shot, he seized his gun and went to the door, saw the flash of firearms and shot into the crowd and wounded the prose- cutor. We must suppose it was all the work of an instant. Did the defendant, under these circumstances, have reasonable ground to believe that his daughter had been shot^ and the assault upon him and his house was continuing ? If he had, then he ought to have been acquitted. We know this has been a much mooted question, but upon an investigation of the authorities our conclusion is, that a reasonable belief that a felony is in the act of being committed on one will excuse the killing of the supposed assailant, though no felony was in fact intended. And whatever will excuse homicide, will, of course, excuse assault and battery. In State v. Scott, 4 Ired., 409, the court says : " In consulta- tion it seemed to us at one time that the case might properly have been left to the jury, favorably to the prisoner, on the principle of Levet's case, Cro. Car., 538 ; i Hale, 474, which is, that if the pris- oner had reasonable ground for believing that the deceased intended to kill him, and under that belief slew him, it would be excusable, or, at most, only manslaughter, though in truth the deceased had no such design at the time." It is to be noted that Levet was acquitted. But the court did not give the prisoner, in Scott's case, the benefit of the principle, for the reason that no such instruction had been asked in the court below, the court concluding , that the prisoner would have requested the instruction, if he had acted upon such belief ; and there were besides other circumstances in the case which prevented the application of the principle. But it is clearly to be deduced from the opinion of Chief Justice Ruffin, who spoke for the court, that in a proper case the principle might be invoked to excuse a defendant. See also Patterson v. People, 46 Barb , 627. 250 Cases on Criminal Law. The same doctrine was enunciated by Parker, J., afterwards Chief Justice of the Supreme Court of Massachusetts, in the famous case of Commonwealth v. Selfridge, Self. Trial, 100, and the prin- ciple is thus illustrated : " A, in the peaceful pursuit of his affairs, sees B walking towards him with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the same instant the pistol is fired, and of the wound B dies. It turned out that the pistol was in fact loaded with powder only and that the real design of B was only to terrify A." The judge inquired : " Will any reasonable man say that A is more criminal than he would have been if there had been a ball in the pistol ? " 2 Whar. Crim. Law, § 1026 (g) and note ; Whar. Law of Homi- cide, 215, et seq. But it may be objected that the defendant acted too rashly ; before he resorted to the use of his gun, he should have taken the precaution to ascertain the fact whether his child had been actually shot. But that doctrine is inconsistent with the principle we have announced. If the defendant had reason to believe and did believe in the danger, he had the right to act as though the danger really existed and was imminent. Taking, then, the fact to be that the trespassers had fired into the defendant's house and shot his child, and the firing continued, there was no time for delay. The occa- sion required prompt action. The next shot might strike him or some other member of his family. Under these circumstances the law would justify the defendant in firing upon his assailants in defense of himself and his family. But as we have said, the grounds of belief must be reasonable. The defendant must judge, at the time, of the ground of his appre- hension, and he must judge at his peril ; for it is the province of the jury on the trial to determine the reasonable ground of his belief. And here the error is in the court's refusing to receive the proposed evidence, and submitting that question to the consideration of the jury. A venire de novo must be awarded.* Smith, C. J., dissenting. I am unable to concur with the 1 Accord : Reg. v. Rose, 15 Cox C. C, 540 (1884) ; Cf. Isham v. St. supra; St. V. Downs, 91 Mo., 19 (1886). — Ed. Cases on Criminal Law. 251 other members of the court in the conclusion reached that the tes- timony of the defendant in explanation of his conduct, if admitted and believed, would be a defense to the charge, or have any other legal effect than to mitigate his offence ; and hence, as immaterial upon the issue, and tending to mislead, there is no error in reject- ing it. The facts in connection with this proposed statement are sum- marily as follows : A boisterous and unruly crowd, in what seems to have been a frolic, enter the defendant's premises in the early night with bells, horns and firearms, by the noise of which as they pass around his dwelling himself and his family are greatly annoyed and their peace disturbed. As they are about to leave, his little frightened daughter runs up to him with blood upon her face, caused by her striking against a table, but which he then supposed to proceed from a shot wound. Acting upon the impulse produced by this misconception and without stopping to make inquiry as to the cause or extent of the inquiry [injury?], he seizes his gun loaded with shot of large size, hastens to the door and out into the porch, and, seeing the flash of the gun, fires into the retreating body then near the outer gate, some thirty-five yards distant, without a word of warning or remonstrance, and wounds one of the number in the leg. This was, in my opinion, a hasty and unauthorized act in the use of a deadly weapon, not in defense of himself or family or premises, but the offspring of a spirit of retaliation for what he erro- neously supposed to have been done, and whose error could have at once been corrected. If death had ensued, the circumstances would not have excused the homicide, and as it was not fatal it cannot be less than an assault. Human life is too safely guarded by law to allow it to be put in peril upon such provocation, and however much it may palliate the defendant's impulse and the rash act in which it resulted, it cannot, in my opinion, excuse his use of a deadly instrument in so reckless a manner. Per Curiam. Venire de novo. 252 Cases on Criminal Law. SECTION III. INFANCY. (a) Responsibility of Infants. Item. A girl of thirteen years of age was burnt because while she was servant to a woman she killed her mistress : and it was found to be so and adjudged treason. And it was said that by the old law no one under age was hung, or suffered judgment of life or limb. But Spigurnel found that an infant of ten years of age killed his companion and concealed him ; and he caused him to be hung, because by the concealment he showed that he knew how to distinguish between evil and good. And so malice makes up for age. Year Book, \ 2 Edward III., 626. GODFREY V STATE. Supreme Court of Alabama, 1858. 31 Alabama, 323. Walker, J.^ The single point to be considered in this case, is, whether the charge of the court below to the jury was correct. An analysis of that charge shows that the jury were distinctly instructed, that the defendant, being between seven and fourteen years of age, was, prima facie, incapable of committing crime; that to overturn the intendment in favor of his incapacity to com- mit crime, the jury must be convinced from the evidence beyond a reasonable doubt, after allowing due consideration to the fact that the accused was a negro and a slave, that he knew fully the nature of the act done, and its consequences ; and that he showed plainly intelligent design and malice in the execution of the act. This charge, after an anxious and careful examination of it, we can not pronounce erroneous. ^ The opinion only is printed. Cases on Criminal Law. 253 An infant, above seven, but under fourteen years of age, is presumed not to have such knowledge and discretion, as would make him accountable for a felony committed during that period. But, if that presumption is met by evidence clearly proving the existence of that knowledge and discretion deemed requisite to a legal accountability, the reason for allowing an immunity from punishment ceases, and, with it, the rule which grants such immu- nity ceases. There are many cases where children between those ages, being shown to have been cognizant of the criminal nature of the act done, have been punished under the criminal law. A girl, thirteen years of age, was executed for killing her mistress. Two boys, one nine, and the other ten years of age, were con- victed of murder, because one of them hid himself, and the other hid the dead body ; thus manifesting, as was supposed, a con- sciousness of guilt, and a discretion to discern between good and evil. A boy of eight years of age, who had malice, revenge, and cunning, was hanged for firing two barns. A boy ten years old, who showed a mischievous discretion, was convicted of murdering his bed-fellow. 4 Bla. Com. 23-24. In the case of Rex v. Owen, 2 Car. & P., 236, it was referred to the jury, to determine whether the act of a girl ten years old, alleged to constitute a larceny, was known by her to be wrong when it was done ; and, upon that question, she was acquitted. It is said in Hale's Pleas of the Crown, page 22, that one between the ages of seven and fourteen might be convicted of a capital offense, "if it appeared by strong and pregnant evidence and cir- cumstances that he was perfectly conscious of the nature and malignity of the crime." In an American case the same principle is thus stated : " If it shall appear by strong and irresistible evi- dence that he had sufficient discernment to distinguish good from evil, to comprehend the nature and consequences of his acts, he may be convicted, and have judgment of death." State v, Aaron, I Southard, N. J. R., 231. In that case, a negro boy, who was a slave, of eleven years, was convicted of murder ; but a new trial was granted on account of an erroneous ruling as to the compe- tency of a witness, and it does not appear what farther was done in the case. In the case of the State v. Guild, 5 Halst. 163, a negro slave, of less than twelve years, was convicted of murder ; and the report 254 Cases on Criminal Law. of the case informs us, that the defendant was executed. In that case, the court, dissenting from the cautious statement of the law found in Hale's Pleas of the Crown, vol. i, p. 27, per- mitted a conviction upon confessions. In this case, although a confession was given in evidence, the facts proved estabhshed the guilt of the accused so clearly, that it is fairly inferrible that no importance was attached to it by the court or jury, and its effect is not noticed in the charge. The question, whether a conviction could be had upon confessions, does not arise, and we do not com- mit ourselves to the doctrine of the decision last above cited upon that point. All the authorities concur in maintaining the correctness of the propositions of law involved in the charge. Bishop on Crim- inal Law, §§ 283, 284, 285 ; I Archbold's Crim. PL, 3, 4, and 5, and notes ; i Russell on Crimes, 3, 4, and 5 ; Roscoe's Crim. Ev., 942, 944 ; Wharton's Am. Crim. Law, 51; i Wheeler's Crim. Cases, 231 to 234. Reason, humanity, and the law, alike required that the court should, in its charge, throw around the jury every guard and restriction necessary to prevent an improper conviction in such a case. This has been carefully done by the court in this case, and we are bound to pronounce a full approval of the charge. The judgment of the city court is affirmed, and its sentence must be executed.^ 1 Accord: When the offense charged is a misdemeanor ; vagrancy, C. ex rel, V. M'Keagy, i Ash. (Pa.) 248 (1828); battery, State v. Goin, 9 Humph., 175 (1848); illegal sale of liquor, C. v. Mead, 92 Mass., 398 (1865). — Ed. " No person shall in any case be convicted of any offense committed before he was of the age of nine years ; nor, of any offense committed between the years of nine and thirteen unless it shall appear by proof that he had discretion to understand the nature and illegality of the act constituting the offense." Penal Code of Texas, Art. 34. Section 283 of the Criminal Code of Illinois fixes the age at which criminal responsibility attaches, at ten years. Cases on Criminal Law. 255 INFANCY. {Continued.) {b) Proof of Age. STATE V. ARNOLD. Supreme Court of North Carolina, 185 i. 13 Iredell, 184. Appeal from the Superior Court of Law of Columbus County, at the Fall Term, 185 1, his Honor Judge Battle, presiding. This is an indictment for the murder of Simon Dyson. The prisoner appeared at his trial, in October, 1850, to be a small boy, but his age was not stated. Evidence was given on the part of the State, that, within a week or two before the homicide, the prisoner had several times expressed ill-will towards the deceased, and threatened to kill him^. The counsel for the prisoner alleged, that he was, apparently, under the age of fourteen years, and, therefore, that it was incum- bent on the State to prove, that he was over that age, or, if under it, that he had such knowledge of right and wrong, as would ren- der him responsible for the homicide, if he committed the act. The court held the 07ius of proof to lie on the prisoner, as to his age. The prisoner was convicted, and from the judgment on the convic- tion, appealed to this court. RuFFiN, C.J. Onthe last point the court is also of opinion, that there was no error. The objection assumed as a fact, that the prisoner appeared to be under fourteen years of age. As there was no proof on the point, it could only be judged of by inspection, and, so far as that goes, it must be taken to have been decided against the prisoner, both by the court and the jury. As the subject of direct proof, the onus was certainly on the prisoner, as the reputed age of every one is peculiarly within his own knowledge, and also the per- sons by whom it can be directly proved. Per Curiam. There is no error in the judgment, and the cer- tificate will issue accordingly. ^Only so much of this case as relates to proof of age is printed. 256 Cases on Criminal Law. SECTION IV. INSANITY. («) Test of Insanity. Nota reader, every act which a man non compos doth, either concerns his life, his lands, or his goods * * * as to his life, the law of England is that he shall not lose his life for felony or murder, because the punishment of a felon is so grievous. * * * 2. No felony or murder can be committed without a felonious intent and purpose. * * * Also for the same reason, « Chatham v. St. 92 Ala. 47 (1890). — Ed. Cases on Criminal Law. 327 if upon consideration of all the evidence, the jury have a reason- able doubt of the defendant's guilt, he is entitled to an acquittal ; and the application of this principle is not affected by reason of the fact that the criminating testimony offered by the prosecution, may have imposed upon the defendant the burden to overcome its effect. If the offense is of such a character, that the exercise of a specific intent is a necessary element in its commission, it cannot be said, that a jury should be satisfied beyond a reasonable doubt of the defendant's guilt so long as the jury have a reasonable doubt arising from the evidence, that the defendant was capable of form- ing such specific intent Any other rule would authorize a verdict of guilty in a criminal case on a less degree of proof and conviction of the judgment than that of satisfaction beyond a reasonable doubt. Henson v. The State, 112 Ala. 41 ; Chatham v. The State, 92 Ala. 47 ; King v. The State, 90 Ala. 612 ; Walker v. The State, 91 Ala. 76.^ The condition of the defendant's mind, arising from his vol- untary drunkenness, was no excuse for the assault, an offense included in that charged. It can only be considered upon the ques- tion of his guilt of the statutory offense for which he was indicted, to wit, an assault with intent to forcibly ravish, which involves the condition of the defendant's mind. Engelhardt v. The State, 88 Ala. 100. Reversed and remanded, 1 Accord : Davis v. St. 54 Neb. 177(1898). Contra: C. v. Haggerty, (Pa.) Lewis, U. S. Cr. L. 402 (1847) ; St. v. Grear, 29 Minn. 221 (1882) ; St V. Hill, 46 La. Ann. 27 (1894). — Ed. 328 Cases on Criminal Law. SECTION VI. INCORPORATION. ANONYMOUS. King's Bench, 1702. 12 Modern, 559. Note. — Per Holt, Chief Justice. A corporation is not in dictable but the particular members of it are. UNITED STATES v. JOHN KELSO COMPANY. United States District Court for California, 1898. 86 Federal Reporter, 304. De Haven, District Judge. On October 9, 1897, there was filed in this court by the United States district attorney for this dis- trict, an information charging the defendant, a corporation, with the violation of "An act relating to the limitation of the hours of daily service of laborers and mechanics employed upon the public works of the United States and of the District of Columbia," approved August i, 1892, 2 Supp. Rev. St. p. 62. Upon the filing of this information, the court, upon motion of the district attorney, directed that a summons in the general form prescribed by section 1390 of the Penal Code of this state, be served upon said corporation, and accordingly on said date a summons was issued, directing the defendant to appear before the judge of said court in the court room of the United States district court for this district on the 21st day of October, 1897, to answer the charge contained in the information. The summons stated generally the nature of the charge, and for a more complete statement of such offense referred to the information on file. On the day named in Cases on Criminal Law. 329 said summons for its appearance, the defendant corporation ap- peared specially by its attorney, and moved to quash the summons, and to set aside the service thereof, upon grounds hereinafter stated. Upon the argument of this motion, it was claimed in be- half of the defendant : First, that the act of congress above referred to does not apply to corporations, because the intention is a necessary element of the crime therein defined, and a corpora- tion as such is incapable of entertaining a criminal intention; second, that, conceding that a corporation may be guilty of a violation of said act, congress has provided no mode for obtaining juris- diction of a corporation in a criminal proceeding, and for that reason the summons issued by the court was unauthorized by law, and its service a nullity. It will be seen that the first objec- tion goes directly to the sufficiency of the information, and pre- sents precisely the same question as would a general demurrer, attacking the information on the ground of an alleged failure to charge the defendant with the commission of a public offense. This objection is one which would not ordinarily be considered upon a motion like that now before the court, when the party making the objection refuses to acknowledge the jurisdiction of the court, or to make any other than a special appearance for the pur- pose of attacking its jurisdiction ; but, in view of the conclusion which I have reached upon the second point urged by the defend- ant, it becomes necessary for me to determine whether the act of congress above referred to is applicable to a corporation, and whether a corporation can be guilty of the crime of violating the provisions of said act. Section i of that act makes it unlawful for a contractor or subcontractor upon any of the public works of the United States, whose duty it shall be to employ, direct, or control the services of laborers or mechanics upon such public works, "to require or permit any such laborer or mechanic to work more than eight hours in any calendar day except in case of extraordinary emergency." And section 2 of the act provides "that * * * any contractor whose duty it shall be to employ, direct, or control any laborer or mechanic employed upon any public works of the United States * * * who shall intentionally violate any pro- vision of this act, shall be deemed guilty of a misdemeanor, and for each and every offense shall upon conviction be punished by a fine not to exceed one thousand dollars or by imprisonment for 330 Cases on Criminal Law. not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof." It will be observed that by the express language of this statute there must be an intentional violation of its provisions, in order to constitute the offense which the statute defines. In view of this express declaration, it is claimed in behalf of defendant that the act is not applicable to corporations, because it is not possible for a corpora- tion to commit the crime described in the statute. The argument advanced to sustain this position is, in substance, this: That a cor- poration is only an artificial creation, without animate body or mind, and therefore, from its very nature, incapable of entertaining the specific intention which, by the statute, is made an essential element of the crime therein defined. The case of State v. Great Works M. & M. Co., 20 Me. 41, supports the proposition that a corporation is not amenable to prosecution for a positive act of misfeasance, involving a specific intention to do an unlawful act, and it must be conceded there are to be found dicta in many other cases to the same effect. In a general sense, it may be said that no crime can be committed without a joint operation of act and intention. In many crimes, however, the only intention required is an intention to do the prohibited act, — that is to say, the crime is complete when the prohibited act has been intentionally done ; and the more recent and better considered cases hold that a cor- poration may be charged with an offense which only involves this kind of intention, and may be properly convicted when, in its cor- porate capacity, and by direction of those controUing its corporate action, it does the prohibited act. In such a case the intention of its directors that the prohibited act should be done is imputed to the corporation itself. State v. Morris E. R. Co., 23 N. J. Law, 360 ; Reg. V. Great North of England Ry. Co., 58 E. C. L. 315 ; Com. z/. Proprietors of New Bedford Bridge, 2 Gray, 339. See, also, State z/. Baltimore & O. R. Co., 15 W. Va. 380. That a corporation may be liable civilly for that class of torts in which a specific malicious intention is an essential element is not disputed at this day. Thus an action for malicious prosecution will lie against a banking corporation. Reed v. Bank, 130 Mass. 434; Goodspeed v. Bank, 22 Conn. 530. An action will lie also against a corporation for a malicious libel. Railroad Co. v. Quigley, 21 How. 202; Maynard T^. Insurance Co., 34 Cal. 48. The opinion Cases on Criminal Law. 331 in the latter case, delivered by Currey, C. J., is an able exposition of the law relating to the liability of corporations for malicious libel, and in the course of which that learned judge, in answer to the contention that corporations are mere legal entities existing only in abstract contemplation, utterly incapable of malevolence, and without power to will good or evil, said : "The directors are the chosen representatives of the corpora- tion, and constitute, as already observed, to all purposes of dealing with others, the corporation. What they do within the scope of the objects and purposes of the corporation, the corporation does. If they do any injury to another, even though it necessarily in- volves in its commission a malicious intent, the corporation must be deemed by imputation to be guilty of the wrong, and answer- able for it, as an individual would be in such case." The rules of evidence in relation to the manner of proving the fact of intention are necessarily the same in a criminal as in a civil case, and the same evidence which in a civil case would be suf- ficient to prove a specific or malicious intention upon the part of a corporation defendant would be sufficient to show a like intention upon the part of a corporation charged criminally with the doing of an act prohibited by the law. Of course, there are certain crimes of which a corporation cannot be guilty ; as, for instance, bigamy, perjury, rape, murder, and other offenses, which will readily sug- gest themselves to the mind. Crimes like these just mentioned can only be committed by natural persons, and statutes in relation thereto are for this reason never construed as referring to corpora- tions ; but when a statute in general terms prohibits the doing of an act which can be performed by a corporation, and does not ex- pressly exempt corporations from its provisions, there is no reason why such statute should be construed as not applying to them, when the punishment provided for its infraction is one that can be, inflicted upon a corporation, — as, for instance, a fine. In the act of congress now under consideration it is made an offense for any contractor or subcontractor whose duty it shall be to employ, direct or control any laborer employed upon any of the public works of the United States, to require or permit such laborer to work more than eight hours in any calendar day. A corporation may be a contractor or subcontractor in carrying on public works of the United States, and as such it has the power or capacity 332 Cases on Criminal Law. to violate the provision of this law. Corporations are, therefore, within the letter, and, as it is as much against the policy of the law for a corporation to violate these provisions as for a natural person so to do, they are also within the spirit of this statute ; and no reason is perceived why a corporation which does the prohibited act should be exempt from the punishment prescribed therefor. If the law should receive the construction contended for by the defendant, the result would be that a corporation, in contracting for the doing of any public work, would be given a privilege denied to a natural person. Such an intention should not be im- puted to congress, unless its language will admit of no other inter- pretation.^ The motion of the defendant will be denied.^ ^ Part of the opinion involving another point is omitted. * Accord : Nuisance, North. Cent. Ry. Co. v. C, 90 Pa., 300 (1879); contempt of court, Telegram Newspaper Co. v. C, 172 Mass., 294 (1899). Contra: as to misfeasance, St. v. Ohio & Miss. R., 23 Ind., 362 (1864). — Ed. Cases on Criminal Law. 333 Chapter VI. The Criminal Act. SECTION I. CONCURRENCE OF ACT AND INTENT. REGINA V. MATTHEWS. Court of Criminal Appeal, 1873. 12 Cox C. C, 489. BoviLL, C. J.^ We have considered this case, and have come to the conclusion that the conviction must be quashed. The jury have found that at the time the prisoner found the heifers he had reasonable expectation that the owner could be found, and that he did not believe that they had been abandoned by the owner. But at the same time they have found that at the time of finding the heifers the prisoner did not intend to steal them, but that the intention to steal came on him subsequently to the first interview with Stiles. That being so, the case is undistinguishable from Reg. V. Thurborn, 3 Cox C. C. 453, and the cases which have followed that decision. Not having any intention to steal when he first found them, the presumption is that he took them for safe custody, and unless there was something equivalent to a bailment afterwards, he could not be convicted of larceny. On the whole we think there was not sufficient to make this out to be a case of larceny by a bailee. Conviction quashed. 1 The opinion only is printed. 334 Cases on Criminal Law. MILTON V. STATE Supreme Court of Florida, 1898. 40 Florida, 251. Mabry, J.^ The following instruction given by the court to the jury was excepted to by defendant, viz: "If you believe from all the testimony in this case that the defendant was informed that, in a certain house, an offense was being committed against the ordinances of the city of Tampa, and that the defendant was a policeman of the city of Tampa at the time, then it was his duty, and it was lawful, if not resisted, for him to go into said house for the purpose of preventing, or arresting those who might in his presence be guilty of a violation of the ordinances of said city ; but if you believe from all the evidence in this case that he went to that house in "good faith as an officer of the law to enforce the law, and after he got in there,. violated the law himself, then the law removes its sanction to such entry, and he becomes a tres- passer from the beginning." This charge is not correct, and we find no authority to sustain it. The Circuit Judge must have failed to observe the distinction obtaining in the civil and criminal depart- ments of the law in the application of the rule sought to be invoked in the charge. Mr. Bishop says, vol. i Crim. Law, § 208, 8th edition, "in civil jurisprudence we have the rule that when a man does a thing by permission of law — not by license, but by permis- sion of law — and, after proceeding lawfully part way, abuses the lib- erty the law had given him, he shall be deemed a trespasser from the beginning by reason of this subsequent abuse. But this doctrine does not prevail in our criminal jurisprudence ; for no man is punishable criminally for what was not criminal when done, even though he afterwards adds either the act or the intent, yet not the two together." The cases cited, State v. Moore, 12 N. H. 42 and Commonwealth v. Tobin, 108 Mass. 426, S. C. 11 Am. Rep. 375, sustain the text. The judgment is reversed and a new trial atvarded. 1 Part of the opinion is omitted. Cases on Criminal Law. 33 S REGINA V. SUTTON. Court for Crown Cases Reserved, 1838. 2 Moody, 29. The prisoner was tried before Mr. Baron Alderson at the Spring assizes for the county of Gloucester, 1838, upon an indict- ment which contained two counts : — first, for steaHng a sheep ; secondly, for killing the same with intent to steal the carcase. The jury found the prisoner guilty upon the latter count only. It appeared that the prisoner was interrupted by the prose- cutor, who came into his field whilst the prisoner was in the act of killing the sheep. The sheep, however, had only been wounded in the throat, the jugular vein being cut on one side of it, but not altogether through. The animal was immediately removed by the prosecutor to his own house, and the wound sewed up, but it died in two days. The jury found the prisoner had given to the sheep a deadly wound, of which it died two days after, with intent to steal the carcase. Upon these facts the learned Baron directed them to find a verdict of guilty upon- the second count. See Clay's case, R. & R. 387. In Easter term, 1838, Lord Denman, C. J., Tindal, C. J., Lord Abinger, C. B., Park, J., Litiledale, J., Parke, B., BOLLAND, B., BOSANQUET, J., AlDERSON, B., PaTTESON, J., COLE- ridge, J., CoLTMAN, J., Considered this case, and unanimously held the conviction right. PINKARD V. STATE. Supreme Court of Georgia, i860. 30 Georgia, 757. The plaintiff in error was indicted and found guilty of simple larceny. He moved for a new trial on the following grounds : 4th.* Because the court erred in refusing to charge the jury as requested by the counsel for defendant, in writing, that, if they, the jury, J- Part of this case is omitted. 336 Cases on Criminal Law. believe from the evidence that Pinkard, the defendant, did agree with Perry and Axon to steal the negro woman belonging to Brinsfield, yet if they believe that Pinkard abandoned the purpose, and went off and did not participate in the crime, then the jury must find the defendant not guilty. By the Court. Lumpkin, J., delivering the opinion. We think the fourth charge should have been given. The law as well as the gospel allows a place of repentance, and, notwith- standing the accused may at one time have agreed to engage in this crime, yet, if he afterwards changed his mind and abandoned that intention, he is not guilty. And there was proof in that case to warrant a charge to that effect. SECTION II. SUFFICIENCY OF THE ACT. (a) Solicitation. BACON'S CASE. King's Bench, 1664. Levinz, 146. He was indicted for intending to murder the Master of the Rolls, and for offering 100/. to J. S. to do it ; and saying. That, if he would not, he would do it himself; and he being convicted, it was moved that this intent only was not indictable : But the Court to the contrary said: "Anciently the will was reputed or taken for the deed in matters of felony, and tho' it is not so now, yet it is an offense and finable ; and they fined him 1000 marks, three months' imprisonment, and to find sureties of good behavior during life."^ 1 In some Year Books of the fourteenth century we find our lawyers ap- pealing to a * * * dangerous maxim, voluntas reputabitur pro facto. See Coke, Third Instit. 5 ; Stephen, Hist. Crim. Law, ii., 222. This was, we believe, due to the fact that, owing to the disuse of appeals, our criminal law had become far too lenient in cases of murderous assaults which did not cause death. We * * * believe that the adoption, even for one limited pur- pose, of this perilous saying was but a momentary aberration. Our old law started from the other extreme : factum reputabitur pro voluntate. Pollock & Maitland's Hist. Eng. Law, Vol. II, p. 475, n. — Ed. Cases on Criminal Law. 337 REX V. HIGGINS. King's Bench, i8oi. 2 East, 5. The defendant was indicted for a misdemeanor at the quarter sessions for the county of Lancaster, and was convicted on the second count of the indictment, charging, " That he on, &c., at, &c., did falsely, wickedly, and unlawfully solicit and incite one James Dixon, a servant of J. Phillips, &c., to take, embezzle, and steal a quantity of twist, of the value of three shillings, of the goods and chattels of his masters J. P., &c., aforesaid, to the great damage ot the said J. P., &c., to the evil example, &c., and against the peace," &c. After judgment of the pillory and two years' imprisonment, a writ of error was brought, and the following causes assigned for error: i. That the said count does not set forth any misdemeanor or offense which the justices of peace at their quarter sessions had jurisdiction to determine.' The case was twice argued ; first in Trinity term last by Scarlett for the defendant and Cross for the crown ; and now Top- ping for the defendant, and Christian for the crown. Le Blanc, J. It is contended, that the offense charged in the second count, of which the defendant has been convicted, is no misdemeanor because it amounts only to a bare wish or desire of the mind to do an illegal act. If that were so, I agree that it would not be indictable. But this is a charge of an act done ; namely, an actual solicitation of a servant to rob his master, and not merely a wish or desire that he should do so. A solicitation or inciting of another, by whatever means it is attempted, is an act done ; and that such an act done with a criminal intent is punishable by indictment has been clearly established by the several cases referred to. The cases of R. v. Daniel, and R. v. Callingwood, cited for the defendant, do not support the proposition that a mere solicitation is not indictable : on the contrary Lord Holt says in the former case, 6 Mod. 10 1, that perhaps an indictment might be for the evil act of persuading another to steal. That part of the case, however, was determined upon the want of a venue. 1 Part of this case is omitted. 338 Cases on Criminal Law. And in R. v. Callingwood, 2 Ld. Raym., Iii6, the only point determined was, that the first part of the charge which was for enticing an apprentice to take and carry away goods from his master, was not indictable, being only a private injury for which an action on the case would lie, but not of such a public nature as to maintain an indictment ; and that the second part of the charge was not well laid for want of a venue. Judgment affirmed} COMMONWEALTH v. HUTCHINSON.] Superior Court of Pennsylvania, 1898. 6 Pennsylvania Superior Court, 405. Opinion by Smith, J., January 18, 1898 : The defendant was convicted and sentenced on the charge of soliciting one Robert Williams to burn a store building.^ It is contended, on the part of the defense, that solicitation to commit a misdemeanor is not indictable, and that, as the indict- ment charges only such solicitation, it sets forth no criminal offense. There seems no question that solicitation to commit a felony is a misdemeanor : Rex v. Higgins, 2 East, 5 ; Rex v. Hickman, I Moody, 34; Reg. v. Quail, 4 F. & F. 1076 ; State v. Avery, 7 Conn. 266 ; People v. Bush, 4 Hill, 133 ; Com. v. McGill, et al.^ Add. 21 ; State v. Bowers, 15 L. R. A. 199. This, however, can not be affirmed of the broad proposition that solicitation to commit a misdemeanor is itself a misdemeanor. On the contrary, it seems clear that with respect to various misdemeanors, involving little or no moral turpitude or prejudice to society, solicitation to their commission is not in law an offense. It is equally clear that as to certain others, it is an offense. The cases cited in Wharton's Criminal Law, sec. 179, show that such solicitations are indict- ^ Kenyon, C. J., and Grose and Lawrence, JJ., delivered concurring opinions. ^ The indictment and part of the opinion relating to a question of evi- dence are omitted. Cases on Criminal Law. 339 able, "when their object is interference with public justice, as when a resistance to the execution of a judicial writ is counseled, or perjury is advised, or the escape of a prisoner is encouraged, or the corruption of a public officer is sought, or is invited by the officer himself." In Rex v. Phillips, 6 East, 464, it was held that solicita- tion to commit a misdemeanor of an evil and vicious nature was indictable. The authorities collected in the notes to Washington V. Butler, 25 L. R. A. 434, embrace cases in which it was held indictable to solicit another to make a plate for counterfeiting bills of exchange ; to commit assault and battery ; to commit perjury. There is also a class of cases frequently referred to in the discus- sion of this question, but really without bearing on it ; solicitations accompanied with the offer of a bribe, of which Rex v. Plympton, 2 Ld. Raymond, 1377, and Rex v. Vaughan, 4 Burr., 2494, are leading instances. In these the act sought was lawful ; the offer of a bribe to influence its performance was the unlawful feature. The adjudications by the highest court of our own State, on the subject of solicitation to commit crime, touch it only at two points. They decide that it is a misdemeanor to solicit the com- mission of murder: Stabler v. Com., 95 Pa. 318; Com. v. Randolph, 146 Pa, 83 ; and that solicitation to commit fornication or adultery is not indictable : Smith v. Com., 54 Pa. 209. The latter case does not, however, go to the length of declaring that solicitation to commit a misdemeanor is not a misdemeanor. No general rule on the subject was there laid down. The decision was based on the difficulty of defining the particular offense charged in the case ; of determining " what expressions of the face or double entendres of the tongue, what freedom of manners, are to be adjudged solicitation ; " and on the principle that " a rule of law which should make mere solicitation to fornication or adultery indictable would be an impracticable rule, one that in the present usages and manners of society would lead to great abuses and oppressions." It may be added that the act charged was one that tended only to secret immorality by the parties immediately involved, and not directly to the public prejudice. In the broad field lying between the extremes thus adjudi- cated, our guide must be found in the principles that underlie our criminal code. To reach just conclusions, we must pursue the method thus laid down by Mr. Justice Paxson in Com. v. McHale, V 340 Gases on Criminal Law. §7 Pa. 397, and applied in that case : " We must look beyond the eases and examine the principles upon which common law offenses rest It is not so much a question whether such offenses have been punished as whether they might have been. . . . We are of opinion that all such crimes as especially affect public society are indictable at common law. The testis not whether precedents can be found in the books, but whether they injuriously affect the public police and economy." The distinction, sometimes attempted, between solicitation to commit a felony and to commit a misdemeanor, is based on an artificial and not an intrinsic difference. It has received compara- tively slight judicial recognition. In Reg. v. Ransford, 13 Cox C. C. 9, it was declared to be without foundation. Indeed, the statutory classification of crime, as felony or misdemeanor, is gov- erned by no fixed or definite principle, but is purely arbitrary. Legislative whim or caprice may alone determine in which category an offense, not a felony at common law, shall be placed. There is no reason, arising from the nature of the offenses, why the burning of another's house shall be classed as a felony, and the burning of one's own house or other building, with intent to defraud insurers, as a misdemeanor ; why the larceny of money shall be pronounced a felony, and its embezzlement only a misdemeanor ; why it shall be deemed a felony to make counterfeit coin, and but a misde- meanor to utter it, or a felony to attempt to utter a counterfeit bank note, and only a misdemeanor to utter counterfeit coin ; why the possession of ten counterfeit bank notes, with intent to utter them, shall be declared a felony, and the forgery of a deed merely a misdemeanor ; or why the forgery of a bank check shall be made a felony, and the forgery of a promissory note but a mis- demeanor. With respect to the public police and economy, and the general interests of society, there are misdemeanors more per- nicious in effect than some of the felonies. As to the mode and incidents of trial there is no distinction, except as between offenses triable exclusively in the oyer and terminer and those within the jurisdiction of the quarter sessions. As to punishment, trial for misdemeanor may subject the defendant to punitive consequences more serious than those to which he is exposed in trial for many of the felonies, since the penalty is often more severe, and, even if acquitted, the costs may be imposed upon him. It is obvious that. Cases on Criminal Law. 341 with respect to the majority of criminal offenses, the distinction between felonies and misdemeanors rests on no substantial basis, and that the classification of an offense as a felony or a misde- meanor affords no just criterion for determining whether solicitation to its commission is indictable. Under such a test, one may be punished for soliciting the theft of the most trifling chattel, or the burning of the most worthless dwelling, yet may with impunity incite to the embezzlement of millions, or to the laying in ashes of the largest manufactories, or the entire business quarter of a city. The only practical and reasonable test is that stated and applied in Com. V. McHale, supra : the manner in which the act may " affect the public police and economy ; " and the only logical conclusion is that all acts which " especially affect public society," to its injury, are criminal. The act for which the defendant is here indicted, as thus affecting public society, is the solicitation described in the indictment. Argument is scarcely needed to demonstrate that the solicita,- tion charged in the present case is of a character to injuriously affect public society and the public police and economy. Except solicitations to murder and riot, nothing is more calculated to disorder and terrorize society than incitements to incendiarism;. Such incitement is a direct blow at security of property and even ■of life. It must therefore be pronounced an indictable offense. The judgment of the Court below is affirmed} 1 Compare C. v. Willard, 22 Pick., 476 (1839). — Ed. 342 Cases on Criminal Law. SUFFICIENCY OF THE ACT. {Continued.) {b) Attempt. KELLY V. COMMONWEALTH. Supreme Court of Pennsylvania, 1858. I Grant's Cases, 484. Thompson, J. The Commonwealth claimed a conviction on this indictment, for murder in the first degree, upon two grounds. First, that the killing was in an attempt to commit a rape on the person of the daughter of the deceased. Secondly, that it was a wilful, deliberate and premeditated killing.^ In dealing with this first ground, we think the court presented the case more strongly against the prisoner than was warranted by the evidence or the law. An attempt to commit a rape, in which killing occurs, is necessarily an overt act, indicating the intent and purpose of the assault, of which clear proof, sufficient to place the fact beyond a reasonable doubt, should be given. A mere inten- tion to commit the offense is nothing, unless accompanied by acts directed towards its accomplishment. The killing, to constitute the crime of murder, without the specific intent to take life, must be clearly shown by the prosecution to have occurred in the per- formance of such acts as should estabhsh the independent substan- tive crime. It seems that the unlawful entry of the prisoner and his asso- ciates into the house of the deceased took place on the night of the occurrence near midnight. They were all young men, and, it would appear from the evidence, had been drinking. When first heard, the deceased said, "they were drunken men." When it was discovered they were in the room in which the deceased and his daughter were in bed together, the former jumped out of bed, and asked, " what they wanted ?" when one of the party inquired " if the girl was in the house," to which the deceased answered they should call and see her at another time, and something was 'Jnly so much of this case as relates to attempt is printed. Cases on Criminal Law. 343 said about drinking whisky, but by whom the. witness could not remember. She says they then took hold of her father, and she jumped out of bed, and with a bar of iron struck one of the party engaged with her father on the arm so severely as to draw from him an exclamation indicative of pain, after which, it seems, she received a blow on the arm from the same person, which felled her. There was no other attempt made upon her then, as we learn, and the prisoner and his associates left the room, and the deceased and the witness again retired to bed. Thus far there was certainly no attempt on the girl ; nor would it have been such as is necessary to constitute the crime, if the effort had been, as alleged, for there was scarcely a shadow of proof of it, to get the deceased out of the room with an intent to return again to the girl. This would only have been a meditated attempt at most — not an actual one. We learn from the charge of the court, for it does not appear on the paper-books, that the prisoner and his associates returned to the room. A scuffle again ensued between the deceased and one of the party. Before it began the witness says she put into the hands of deceased a bar of iron, and with another piece in her hand fled out of the house to call assistance. That on going out one of the party caught her by the leg, but she defended herself, and he let her go. That when she returned she found the deceased lying on the floor with his skull fractured, of which he soon died, and the intruders gone. In all this, where is the evidence of attempted rape? The fatal blow, according to the testimony of the girl, was given in her absence. Nothing like an attempt had occurred before she left the house — not even anything indicative of such design, we should say, and the parties were gone before she returned. The court, in the outset of charge, had distinctly submitted to the jury the ques- tion, whether the prisoner had killed the deceased, and " if in attempt to perpetrate a rape upon his daughter, he is guilty of murder in the first degree ;" and on this inquiry, and as evidence, they direct the jury to consider " for what purpose the prisoner and his confederates go to that house that night? Was it for for* nication or rape ? This last can be answered by referring to the evidence ; of this you will judge." At this point the court direct the jury to the evidence of the acts of the prisoner and his associ- ates ; the entry into the house, and accompanying facts, and asks 344 Cases on Criminal Law. them " if they see anything like fornication or consent " to sexual intercourse? From this, the question of whether the intent to commit a rape was not the motive for entry and the motive for killing, was presented to the jury ; and if so, it is declared to be a case of murder in the first degree. The court manifestly in all this substitutes "intent" for "attempt." If murder be committed with an intent afterwards to commit a rape, and the attempt is never made, the party would be answerable in the first degree only for the wilful, deliberate, and premeditated killing, but not for murder in the attempted rape. The intent is not equivalent to an act demonstrative of an attempt. The girl testified to no attempt on her person indicative of any such intent, and she was the only witness, unless it be what is said by her about being caught as she fled. But in this she proves no demonstration towards the com- mission of the crime. Even if she had proved it, it does not appear that the prisoner caught her, and if he did not, he is not to be affected by the act of another, unless a common purpose to do the act attempted was shown to exist between that other and the prisoner ; it is only in such cases that the act of one shall be deemed the act of all. The court should have instructed the jury that acts are necessary to constitute an attempt, and that an attempt to commit a rape is an ineffectual offer, by force, with intent to have carnal connection. If such acts, with such intent, were not proved in the case, then the prisoner could not be convicted on this branch of it. On the contrary, the court submitted all the acts of the prisoner to the jury, to find, if they chose, an intent to commit a rape, which, if found, was to transform acts indifferent, or at most equivocal in regard to the girl, into an actual attempt upon her, and thus to change the whole inquiry on the question of intentional killing ; for if it was perpetrated in an attempt to commit a rape, it would be murder in the first degree, as we have said, without regard to whether the killing was by design or acci- dent. This shows the importance of great care in lajnng the law down on the question of an attempt. It should be an actual, not a constructive one. If the entry into the house of deceased had been shown to have been burglarious, with the design to commit a rape, and the breaking and entry were pursuant to such a design, it might have been considered, under such circumstances, evidence of an attempt. Cases on Criminal Law. 345 But, to constitute it such, the specific intent to commit the crime must have existed at the moment of breaking and entering — not formed afterwards — for if so, the breaking could not be construed an attempt, as it had not this character in the minds of the prisoner and his associates at the moment of doing the act. Judgment reversed, and a new trial awarded} SIMPSON V, STATE. Supreme Court of Alabama, 1877. ^^ Alabama, i. Brickell, C. J. The indictment contains a single count, charging, in the prescribed form, the defendant with an assault with intent to rnurder one Michael Ford.^ The offense charged must be proved, and an essential element of the present offense is not only an assault with intent to murder, but the specific intent to mur- der Ford, the person named in the indictment. If the intent was to murder another, or if there was not the specific intent to murder Ford, there cannot be a conviction of the aggravated offense charged, though there may be of the minor offense of assault, or of assault and battery. Barnes v. State, 49 Miss., 1 7 ; Jones v. State, 1 1 Sm. & Mar., 3x5 ; Ogletree v. State, 28 Ala., 693 ; Morgan v. State, 33 Ala., 413 ; State v. Abram, 10 Ala., 928. The intent cannot be implied as matter of law ; it must be proved as matter of fact, and its existence the jury must determine from all the facts and circumstances in evidence. It is true, the aggravated offense with which the defendant is charged cannot exist, unless if death had resulted, the completed offense would have been murder. From this, it does not necessarily follow, that every assault from which, if death ensued, the offense would be murder, is an assault with intent to murder, within the purview of the statute, or that the specific intent, the essential characteristic of the offense, exists. Therefore, in Moore v. State, 18 Ala., 533, an 1 See also Stabler v. C, 95 Pa., 318 (1880).— Ed. ^ Part of the opinion is omitted. 346 Cases on Criminal Law. affirmative instruction, "that the same facts and circumstances which would make the offense murder, if death ensued, furnish suf- ficient evidence of the intention," was declared erroneous. The Court say : " There are a number of cases, where a kiUing would amount to murder, and yet the party did not intend to kill. As if one from the house-top recklessly throw down a billet of wood upon the sidewalk where persons are constantly passing, and it fall upon a person passing by and kill him, this would be, by the common law, murder ; but if, instead of killing him, it inflicts only a slight injury, that party could not be convicted of an assault with intent to murder." Other illustrations may be drawn from our statutes; murder in the first degree may be committed in the attempt to per- petrate arson, rape, robbery or burglary, and yet an assault com- mitted in such attempt, is not an assault with intent to murder. If the intent is to ravish, or to rob, it is under the statute a distinct offense from an assault with intent to murder, though 'punished with the same severity. And at common law,if death results in the prosecution of a felonious intent, from an act malum in se, the killing is murder. As if A shoot at the poultry of B, intending to shoot them, and by accident kills a human being, he is guilty of murder, i Russ. Cr., 540. Yet, if death did not ensue, if there was a mere battery, or a wounding, it is not, under the statute, an assault with intent to murder. The statute is directed against an act done, with the par- ticular intent specified. The intent in fact, is the intent to murder the person named in the indictment, and the doctrine of an intent in law different from the intent in fact, has no just application; and if the real intent shown by the evidence is not that charged, there can not be a conviction for the offence that intent aggravates, and in contemplation of the statute, merits punishment as a felony. Ogletree v. State, supra; Morgan v. State, supra. As is said by Mr. Bishop, the reason is obvious, the charge against the defendant is, that in consequence of a particular intent reaching beyond the act done, he has incurred a guilt beyond what is deducible merely from the act wrongfully performed ; and therefore, to extract by legal fiction from this act such further intent, and then add it back to the act to increase its severity, is bad in law. i Bish. Cr. Law, § 5 14. An application of these general principles, will show that several of the instructions given by the City Court were erroneous, Cases on Criminal Law. 347 and some of them misleading, or invasive of the province of the jury. The sixth, asserts the familiar principle of the law of evidence that a man must be presumed to intend the natural and probable consequences of his acts, and from it draws the conclusion, " that if a man shoots another with a deadly weapon, the law presumes that by such shooting, he intended to take the life of the person shot." Whether this instruction would, or would not be correct, if death had ensued from the shooting, and the defendant was on trial for the homicide, it is not now important to consider. In a case of this character, the instruction is essentially erroneous, for if it has any force, it converts the material element of the offence, the intent to murder a particular person, into a presumption of law, drawn from the nature of the weapon, and the act done with it ; while the intent is a fact which must be found by the jury, and the character of the weapon, and the act done, are only facts from which it may or may not be inferred. The weapon used, and the act done, may in the light of other facts and circumstances, import an intent to maim, or merely to wound, distinct offences from that imputed to the defendant ; and maiming or wounding is a probable, natural consequence of the act done with such weapon. In Morgan v. State, 33 Ala., 413, the court, at the request of the defendant, charged the jury, " that they must be convinced beyond all reasonable doubt, that the prisoner intended to shoot Scrimpshire" (the prosecutor), "before they can convict the prisoner of an assault with intent to murder," but added, referring to the particular facts of the case, "that the presenting of a pistol, loaded and cocked, within carrying distance, by one man at another, with his finger on the trigger, in an angry manner, is, in itself, an assault with intent to murder." This court said : " The explanatory charge given by the court in this case cannot be supported. It ignores one of the material facts which constitute the offence for which the prisoner was on trial. The defendant was not guilty, as charged, unless he committed the assault, and this act was done with a special intent to kill and murder the person assaulted." It was said the facts were proper for the consideration of the jury, and (quot- ing from Ogletree v. State, supra), that it was competent for them, in their deliberations, " to act upon the presumptions which are recognized by law, so far as they are applicable, and their own judgment and experience, as applied to all the circumstances in 348 Gases on Criminal Law. evidence. It does not, however, result as a conclusive presump- tion at law, from the facts supposed in the charge, that the accused had the intent to take the life of Scrimpshire : the surrounding cir- cumstances should have been considered by the jury ; and unless the jury were convinced that the prisoner entertained the particular intent to take the life of his adversary, then the prisoner could not be convicted of the higher crime. The particular intent reaches beyond the act done, and is a fact to be found preliminary to con- viction, as necessary to the other fact itself, viz : that the assault was committed. In other words, while the law permits and com- mands juries to indulge all reasonable inferences from the facts in proof, it does, propria vigore, infer the one fact from another." The result is that the judgment of the City Court is reversed, and the cause remanded. The prisoner will remain in custody until discharged by due course of law.-^ COMMONWEALTH v. PEASLEE. Supreme Judicial Court of Massachusetts, 1901. 177 Massachusetts, 267. Holmes, C. J.^ This is an indictment for an attempt to burn a building and certain goods therein, with intent to injure the insurers of the same. Pub. Sts., c. 210, § 8. The substantive offence alleged to have been attempted is punished by Pub. Sts., c. 203, § 7. The defence is that the overt acts alleged and proved do not amount to an offence. It was raised by a motion to quash and also by a request to the judge to direct a verdict for the defendant. We will consider the case in the first place upon the evidence, apart from any question of pleading, and afterwards will take it up in connection with the indictment as actually drawn. The evidence was that the defendant had constructed and arranged combustibles in the building in such a way that they were ^Accord : Reg v. Donovan, 4 Cox C. C, 401 (1850) ; see also C. v. Brosk, 8 Dist. Rep. (Pa.) 638 (1899)— Ed. 2 The opinion only is printed. Cases on Criminal Law. 349 ready to be lighted, and if lighted would have set fire to the build- ing and its contents. To be exact, the plan would have required a candle which was standing on a shelf six feet away to be placed on a piece of wood in a pan of turpentine and lighted. The defendant offered to pay a young man in his employment if he would go to the building, seemingly some miles from the place of the dialogue, and carry out the plan. This was refused. Later the defendant and the young man drove toward the building, but when within a quar- ter of a mile the defendant said that he had changed his mind and drove away. This is as near as he ever came to accomplish- ing what he had in contemplation. The question on the evidence, more precisely stated, is whether the defendant's acts come near enough to the accom- plishment of the substantive offence to be punishable. The statute does not punish every act done toward the commission of a crime, . but only such acts done in an attempt to commit it. The most common types of an attempt are either an act which is intended to bring about the substantive crime and which sets in motion natural forces that would bring it about in the expected course of events but for an unforeseen interruption, as in this case if the candle had been set in its place and lighted but had been put out by the police, or an act which is intended to bring about the sub- stantive crime and would bring it about but for a mistake of judgment in a matter of nice estimate or experiment, as when a pistol is fired at a man but misses him, or when one tries to pick a pocket which turns out to be empty. In either case the would-be criminal has done his last act. Obviously new considerations come in when further acts on the part of the person who has taken the first steps are necessary before the substantive crime can come to pass. In this class of cases there is still a chance that the would-be criminal may change his mind. In strictness, such first steps cannot be described as an attempt, because that word suggests an act seemingly sufficient to accomplish the end, and has been supposed to have no other mean- ing. People V. Murray, 14 Cal., 159, 160. That an overt act, although coupled with an intent to commit the crime commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt But some preparations may amount to an attempt. It is a ques- 350 Cases on Criminal Law. tion of degree. If the preparation comes very near to the accom- plishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor although there is still a locus penitenticB in the need of a further exertion of the will to complete the crime. As was observed in a recent case, the degree of proximity held sufficient may vary with circumstances, including among other things the apprehension which the particular crime is calculated to excite. Commonwealth z/. Kennedy, 170 Mass., 18, 22. (See also Commonwealth w. Willard, 22 Pick., 476.) A few instances of liability of this sort are mentioned on the page cited. As a further illustration, when the servant of a contractor had delivered short rations of meat by the help of a false weight which he had substituted for the true one, intending to steal the meat left over, it was held by four judges, two of whom were Chief Justice Erie and Mr. Justice Blackburn, that he could be con- victed of an attempt to steal. Regina v. Cheeseman, L. &. C, 140; S. C, 10 W. R., 255. So lighting a match with intent to set fire to a haystack, although the prisoner desisted on discover- ing that he was watched. Regina v. Taylor, i F. &. F. , 5 1 1 . So getting into a stall with a poisoned potato, intending to give it to a horse there, which the prisoner was prevented from doing by his arrest. Commonwealth v. McLaughlin, 105 Mass., 460. See Clark V. State, 86 Tenn., 511. So in this Commonwealth it was held criminal to let a house to a woman of ill fame with intent that it should be used for purposes of prostitution, although it would seem that the finding of intent meant only knowledge of the intent of the lessee. Commonwealth z^. Harrington, 3. Pick., 26. See Commonwealth v. Willard, 22 Pick., 476, 478. Com- pare Brockway v. People, 2 Hill, 558, 562. The same has been held as to paying a man to burn a barn, whether well laid as an attempt or more properly as soliciting to commit a felony. Com- monwealth V. Flagg, 135 Mass., 545,549. State v. Bowers, 35 So. Car., 262. Compare Regina z/. Williams, i C. & K., 589; S. C, I Denison, 39. McDade v. People, 29 Mich., 50, 56. Stabler v. Commonwealth, 95 Penn. St., 318. Hicks v. Common- wealth, 86 Va., 223. On the other hand, making up a false invoice at the place of exportation with intent to defraud the revenue is not an offence if not followed up by using it or attempting to use it. United Cases on Criminal Law. 351 States V. Twenty-eight Packages, Gilpin, 306, 324. United States V. Riddle, 5 Cranch, 311. So in People v. Murray, 14 Cal., 159, the defendant's elopement with his niece and his requesting a third person to bring a magistrate to perform the marriage cere- mony, was held not to amount to an attempt to contract the mar- riage. But the ground on which this last decision was put clearly was too broad. And however it may be at common law, under a :statute like ours punishing one who attempts to commit a crime •"and in such attempt does any act towards the commission of such offence" (Pub. Sts., c. 210, § 8), it seems to be settled elsewhere that the defendant could be convicted on evidence like the present. People V. Bush, 4 Hill, 133, 134. McDermott z/. People, 5 Par- ker Cr. Rep. 102. Griffin v. State, 26 Ga., 493. State v. Hayes, 78 Mo. 307, 316. See Commonwealth v. Willard, 22 Pick., 476. People V. Bush is distinguished in Stabler v. Commonwealth as a decision upon the words quoted. 95 Penn. St., 322. Under the cases last cited we assume that there was evidence of a crime and perhaps of an attempt, — ^the latter question we do not decide. Nevertheless, on the pleadings a majority of the court is of opinion that the exceptions must be sustained. A mere col- lection and preparation of materials in a room for the purpose of setting fire to them, unaccompanied by any present intent to set the fire, would be too remote. If the accused intended to rely upon his own hands to the end, he must be shown to have had a present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it out. We are not aware of any carefully considered case that has gone further than this. We assume without deciding that this is the meaning of the indictment, and it would have been proved if for instance the evidence had been that the defendant had been frightened by the police as he was about to light the candle. On the other hand, if the offence is to be made out by showing a prepara- tion of the room and a solicitation of some one else to set the fire, which solicitation, if successful, would have been the defendant's last act, the solicitation must be alleged as one of the overt acts. It was admissible in evidence on the pleadings as they stood to show the defendant's intent, but it could not be relied on as an overt act unless set out. The necessity that the overt acts should be alleged has been taken for granted in our practice and decisions. 352 Cases on Criminal Law. (see e. g. Commonwealth v. Sherman, 105 Mass., 169 ; Common- wealth V. McLaughlin, 105 Mass., 460, 463 ; Commonwealth V. Shedd, 140 Mass., 451, 453), and is expressed in the forms and directions for charging attempts appended to St. 1899, c. 409, § 28 and § 2. Commonwealth v. Clark, 6 Gratt., 675. State z/. Colvin, 90 No. Car., 717. The solicitations were alleged in McDermott v. People. In New York it was not necessary to ay the overt acts relied upon. Mackesey v. People, 6 Parker Cr, Rep., 114, 117, and New York cases, supra. See 3 Encyc. PI. & Pr., "Attempts," 98. A valuable collection of authorities con- cerning the crime will be found under the same title in 3 Am. & Eng. Encyc. of Law (2d ed.). If the indictment had been properly drawn we have no question that the defendant might have been convicted. Exceptions sustained} MARLEY V. STATE. Supreme Court of New Jersey, 1895. 58 New Jersey Law, 207. Beasley, Chief Justice.^ The defendants were indicted for incurring an obligation in behalf of the county in excess of the legal limit. The indictment sets out, in detail, the several acts done by them to that end, and the proofs corresponded with such allegations. The case, therefore, that was made by the indictment was in all respects proved. In this situation the trial court con- cluded that the series of acts so done by the defendants was, as a matter of law, wholly nugatory ; that such acts did not and could not impose any legal obligation on the county. This construction of the legal question thus involved, having been adopted at the trial, the jury was then instructed, as we have 1 Seealso, U. S. v. Stephens, 3 Sawy., 116 (1882) ; Cornwell v. Asso- ciation, 69 N. W. (N. D.) 191 (1896.).— Ed. * Part of the opinion only is printed. Cases on Criminal Law. 353 seen, that although they would not be warranted to find the defend- ants guilty of the crime thus charged, they still had the right, if the, evidence established the fact, to find that they had attempted to commit it. This theory of the case, we think, is fallacious ; it is demon- strably erroneous from two considerations. The first of these is, that the decision of the trial judge, that the facts proved did not show the imposition of an obligation on the county, was tantamount to a decision that the indictment itself did not charge any offence ; for the facts charged and the facts proved were identical. It would seem to be self-evident that if the case made by the record was wholly established by the evidence, and the latter, in a legal point of view, was nugatory, it neces- sarily follows that the case as presented in the record was equally nugatory. Therefore, accepting the view of the judge at the trial, and from which we do not dissent, it is an unavoidable corol- lary that the defendants could not be convicted of an attempt to commit a crime that was not charged. The statutory regulation in question is, by its very terms, applicable to the situation when the indictment exhibits on its face a criminal offence. In the present instance this essential is lacking, according to the view of the law taken at the trial. On this ground also the judgment is invalid. The same result must obtain from another aspect of the case. It has been entirely settled by judicial decisions that the act which it is declared that these defendants attempted to do cannot be done by the method stated in the indictment. As the law has been ex- pounded, the board of freeholders, to which they regularly belonged, under the existent circumstances, could not impose upon the county the obligation in question. Siedler v. Chosen Free, holders, &c., 10 Vroom, 632. And so far was this doctrine extended that in the Circuit Court of the United States in the case of Cramp- ton V. Zabriskie, lOi U. S., 601, it was held that where the county bonds had been given for lands conveyed to the county, such bonds being in excess of the funds appropriated, such transaction is, in all its parts, utterly void, and a decree was accordingly made requiring the vendor of the property to accept a reconveyance and to return the bonds so given in payment of the purchase- money. This decree was affirmed in the Supreme Court of the 354 Cases on Criminal Law. United States; on the ground that the board of freeholders could not, in the mode adopted, incur any obligation for the county be- yond its income previously provided by taxation. And this, as has been shown, was the doctrine in accordance with which the present case was tried. Looking, then, to this datum it is obvious that the defendants have been convicted of an attempt to commit a misdemeanor which was a legal impossibility, and which they knew to be such. Such a procedure would appear to be inconsistent with the fundamental principles of law applicable to the subject. An intent to commit a crime is not equivalent to an attempt to commit it, for the purpose must be accompanied with some sub- stantive act, or series of acts, tending towards its accomplishment. _ Mr. Bishop, with his usual explicitness and clearness, says : "Another principle concerning attempt is that, whatever a man's intent may be, he is not indictable unless there is some adaptation, real or apparent, in the thing done to accomplish the thing in- tended." I Bish. Cr. L., § 516. So, speaking of the intent, "every- one being conclusively presumed to understand the law, no man can legally intend what is legally impossible." Id., § 518. In the light of such a theory it becomes plain that these de- fendants, even if the intent to commit the offence charged can be imputed to them, did, in legal contemplation, no act towards the accomplishment of such purpose, for every act they did was, in the eye of the law, an absolute nullity. Not one of them, there- fore, could tend to carry into effect any criminal project. It should be noticed that the principle here introduced is to be distinguished from the rule that is applicable to the case of a person designing to perpetrate a crime, when he cannot effect it by reason of the existence of some fact unknown to him at the time. The cases are collated and the principle elucidated in the recent case of People V. Gardner, 38 N. E. Rep., 1003. State v. Wilson, 30 Conn., 500. As it may suggest itself to a person looking into the subject thus considered that the rule adopted by the trial judge in its ap- plication to the primary question before him is not consistent with the decision in State v. Halsted, 10 Vroom, 402, 12 Id., 552, it is proper to say that such topic was not in the reported case dis- cussed by counsel, nor was it considered or decided by the court. Cases on Criminal Law. 355 The proposition that the freeholders have not the power to create an obligation binding on the county by the methods now in ques- tion has been established by more recent decisions. Let the judgment be reversed. CLARK V. STATE. Supreme Court of Tennessee, 1888. 86 Tennessee, 511. FoLKES, J. This is an indictment for attempt to commit a larceny. There was a conviction and sentence of one year in the penitentiary. Motion for new trial and in arrest of judgment being made and overruled, the defendant has appealed in error.^ The next error assigned is to the charge of the Court in this : " If his purpose was to steal when he opened the drawer, and his opening it was a part of the act designed by him for getting possession of the prosecutor's money, he would be guilty of an attempt to commit larceny, even though at that particular time there was no money in the cash-drawer." The proof shows that the defendant was detected by the prosecutor in the act of opening the cash-drawer of the latter's store, having thrown himself across the counter for that purpose, he being alone in the front part of the store at the time — the prosecutor being in the rear waiting on a customer, and being hidden from defendant's view by a screen. When thus detected, and hallooed at by the prosecutor, the defendant hurriedly left the store. The proof leaves it in doubt whether or not there was any ■ • The accused being under fourteen' years of age, and conclusively pre- sumed to be incapable of committing the crime of rape, it logically follows, as a plain, legal deduction, that he was also incapable in law of an attempt to commit it. He could not be held to be guilty of an attempt to commit an offence which he was physically impotent to perpetrate." Riley, J., in Foster V. C.,96 Va., 306(1898). Contra C. v. Green, 2 Pick.380 (1824).— Ed. ' Part of the opinion is omitted. 3S6 -Cases on Criminal Law. money in this particular drawer at the time the attempt was made. •It was early in thfe morning, and the drawer had been emptied the evening before. The Court had stated to the jury that the State claimed that there was money in the drawer at the time of the alleged attempt and that this was denied by the defendant, and that this was one of the questions of fact that they must determine, and that they must determine from the proof what was the purpose and intention of the prisoner in opening the cash-drawer ; and if they found that the defendant believed there was money or other valuables in said drawer, and his purpose in opening the same was to steal its con- tents, then he would be guilty of an attempt to commit larceny, whether there were money or other valuables in the drawer at the time or not. There is no error in this record. The act averred and proven is sufficient. The direct question here presented has never been passed upon by this Court, but it is by no means one without authority. It has received much discussion in the text-books, and in the adjudged cases froni other courts. The English cases are conflicting. In Reg. v. Collins, Leigh- & C, 471, it was held there could be no attempt to pick the pocket of a person who had no money at the time in her pocket ; while in Reg. v. Goodhall, i Den. C. C, 187, it was held an attempt to produce a miscarriage could be committed on a woman supposed to be, but not in fact, pregnant. It appears to us that these cases cannot be reconciled, although Mr. Heard, in his second edition of Leading Criminal Cases, Vol. II., pp. 482-483, has attempted to do so. We are constrained to agree with Mr. Bishop, that "these differing opinions must have sprung from opposite views in the two benches of Judges." See note i to § 741, Bishop's Cr. L., 7th Ed.. The American cases seem to be uniform, or at least substan- tially so, for here the few conflicts are more apparent than real. In Commonwealth v. Rogers, 5. S. & R., 463, the Penn- sylvania Court held that an indictment for assault with intent to steal from the pocket is good, though it contains no setting out of anything in the pocket to be stolen. Duncan, J., in delivering the opinion of the Court, said : "The intention of the person was Cases on Criminal Law. 357 to pick the pocket of whatever he found in it ; and although there might be nothing in the pocket, the intention to steal is the same." So in Massachusetts, under a statute differing in terms but the same in substance as our own hereinabove quoted, it was held that the indictment need not allege, and the prosecutor need not prove, that there was in the pocket anything which could be the subject of larceny. Commonwealth v. McDonald, 5 Cush., 365. See also Commonwealth v. Jacobs, 9 Allen, 274. To the same effect is State v. Wilson, 30 Conn., 500. So in Indiana it has been held that an assault on- one with , intent to rob him of, his money may be committed, though he has no money in possession at the time. Hamilton v. State, 36 Ind. 280. If an indictment for an attempt to steal the contents of a trunk or room would not be good, where it transpired that there was nothing in the trunk or room, then it would seem to follow that the indictment, in case where there were goods in the trunk or room, would have to allege what particular goods the thief purposed to steal ; and if necessary to allege, it is necessary to prove, and how could this be proven where there was a variety of different goods, and the thief was arrested before he had laid hands upon any article ? Again : if a thief is caught with his hand in your pocket before he can grasp any of its contents, and it is found that the pocket contains both money and a watch, how can it be proven that he intended to steal both, and if not both, which ? And in the case last put, is there any more of an attempt to steal, the thief being ignorant of the presence of the watch or • money, than there would be had he, with similar intent and igno- rance, placed his hand in an empty pocket ? In each case there is the substantive and distinct offense as prescribed by the statute. There is the criminal intent, and an effort made to carry out the intent to the point of completion, interrupted by some unforeseen impediment or lack outside of himself, special to the particular case and not open to observation, intervening to prevent success without the abandonment of effort or change of purpose on the part of the accused. As said by Mr. Bishop : " It being accepted truth that the defendant deserves punishment by reason of his criminal intent, no 358 Cases on Criminal Law. one can seriously doubt that the protection of the public requires the punishment to be administered, equally whether, in the unseen depth of the pocket, etc., what was supposed to exist was really present or not. " i Bishop Cr. L., Sec. 741. The community suffers from the mere alarm of crime. Again : " Where the thing intended (attempted) is a crime, and what is done is of a sort to create alarm — in other words, excite apprehension that the evil intended will be carried out — the incipi- ent act which the law of attempt takes cognizance of is in reason committed." i Bishop Cr. L., Sec. 742. The true legal reason for the conclusion reached is that the defendant, with the criminal intent, has performed an act tending to disturb the public repose. lb.. Sec, 744. Mr. Wharton's views on this, at one time, perplexing question are in accord with Mr. Bishop. See i Whart. Cr. L., Sees. 182, 183, 185, 186, and 192, 9th Ed. Let the judgment be affirmed} SUFFICIENCY OF THE ACT. {Continued:) {c) Conspiracy. STATE V. BUCHANAN. Court of Appeals of Maryland, 182 i. 5 Harris and Johnson, 317. This was an indictment charging the defendants in the second count with a conspiracy falsely, fraudulently and unlawfully, by wrongful and indirect means, to cheat, defraud and impoverish the ^ Seealso St. v. Glover, 27 S. C. 602 (1888).— Ed. ' |If an assault should be made on a man dresspd as a woman, with intent to ravish, the assailant believing the person assaulted to be a woman, he could not be convicted of an attempt to ravish, because in such a case the com- mission of the crime of rape would be a legal impossibility.' ' FoUelt, T. , in People V. Gardiner, 73 Hun, 66 (1893). Cases on Criminal Law. 359 president, directors and company of the Bank of the United States. To this indictment there was a demurrer that the matter contained in the indictment was not sufficient to sustain the prose- cution. The county court ruled the demurrer good [Dorsey, C. J. dissenting], and discharged the defendants. The present writ of error was brought on the part of the state. The case was argued in this court before Chase, C. J. Bu- chanan, Earle and Martin, JJ. Chase, C. J.^ I think it may be assumed as a position which cannot be controverted, and is free from doubt, that the common law of England, as it was understood at the time of the declaration of rights, was the law of Maryland ; and I think the position is equally clear, that it must be ascertained by the writings of learned men of the profession, by the judicial records and adjudged cases of the courts of England. The questions now occur. Do the facts contained in the in- dictment constitute the crime or offence of conspiracy ? And is conspiracy an offence at common law, indictable and punishable as such ? Sergeant Hawkins, in his Pleas of the Crown, ch. 72, in de- fining conspiracy at common law, makes use of strong and explicit language, and says there can be no doubt but that all confedera- cies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law ; as where divers persons confederate together by indirect means to impoverish a third person. This definition is corroborated and supported by adjudged cases in the courts in England, and especially in the court of King's Bench. In I Lev. 125, I Burn's Justice, 355, The King v. Sterling and others. Brewers of London. — Information for unlawfully conspiring to impoverish the excisemen by making orders that no small beer, called gallon beer, should be made for a certain time, &c. The whole court concurred in the opinion, and gave judgment for the king. The statute 33 Edw. i, de conspiratoribus, was made in affirm- ance of the common law, and is a final definition of the instances or cases of conspiracy mentioned in it ; but certainly it does not comprehend all the cases of conspiracy at the common law, ^The indictment is abridged and the argument of counsel and the con« curring opinion of Buchanan, J. are omitted. 360 Cases on Criminal Law. which is most apparent from the adjudged cases of the courts of England on that subject. I consider the adjudications of the courts of England, prior to the era of the independence of America, as authority to show what the common law of England was, in the opinion of the judges of the tribunals of that country, and since that time, to be respected as the opinions of enlightened judges of the jurisprudence of Eng- land. The better opinion appears to be, that a conspiracy to do an unlawful act is an indictable offence, although the object of the conspiracy is not executed.* In this case the conspiracy to cheat, defraud and impoverish, the Bank of the United States, by appro- priating the moneys, promissory notes, and funds of the bank, to the use of the accused, has been proved by the admission and con- fession of the defendants, and a consummation of all the overt acts has been fully established. The Poulterer's case, 9 Coke, 56, 57. — The falsa alligantia is a' false binding, each to the other, by bond or promise to execute some unlawful act. Before the unlawful act executed, the law punishes the coadjunction, confederacy or false alliance, to the end to prevent the unlawful act — quia quando aliquid prohibetur, pro- hibetur et id per quod pervenitur ad illud. Et effectus punitur licet non sequatur effectus ; and in these cases the common law is a law of mercy, for it prevents the malignant from doing mischief, and the innocent from suffering it The defendants were punished by fine and imprisonment. I think it is established by the decisions of the courts of Eng- land, that a conspiracy to cheat is an offence indictable and punish- able at common law. Rex v. Wheatly, 2 Burr. 11 25. A cheat or imposition by one person only is not indictable at common law, but a conspiracy to cheat by two or more is indictable at common law, because ordinary care and caution is no guard against it. In- dictment against Macarty and others, for a combination to cheat in imposing on the prosecutor stale beer mixed with vinegar, for port >In some States by statute, an overt act is necessary in specified cases to constitute the crime of conspiracy. See P. -v. Daniels, 105 Cal., 262 (1894); St. V. Clary, 64 Me., 369 (1875); Wood z/. St., 47 N. J. L., 180 (1885) ; P. V. Flack, 125 N. Y., 324 (1891) ; U. S. v. Barrett, 65 Fed., 62 (1894).— Ed. Cases on Criminal Law. 361 wine, 6 Mod. 301. Indictment against Cope and others, for a conspiracy to ruin the trade of the prosecutor by bribing his ap- prentices to put grease into the paste, which had spoiled his cards, I Strange, 144. Indictment against Kinnersley and Moore, for a conspiracy to charge Lord Sunderland with endeavoring to commit sodomy with said Moore, in order to extort money from Lord Sunderland. The whole court gave judgment in support of the indictment, and punished Kinnersley by fine, imprisonment, &c. and sentenced Moore to stand in the pillory, suffer a year's imprisonment, and to give security for his good behavior, i Stra. 193, 196. Indictment against Rispal, 3 Burr. 1320. — The in- dictment sets forth that Rispal and two others, did wickedly and unlawfully conspire among themselves, falsely to accuse John Chilton with having taken a quantity of human hair out of a bag, &c., for the purpose of exacting and extorting money from the said John Chilton. The court were of opinion, that the indictment was well laid, and that the gist of the offence is the unlawful con- spiring to injure Chilton by this false charge. A combination among laborers or mechanics to raise their wages, is a conspiracy at common law, and indictable, 8 Mod. 10, although lawful for each separately to raise his wages. I consider the doctrine so firmly established by the decisions ■of the courts of England, prior to the era of our independence, that a combination or confederacy to do an unlawful act is a con- spiracy indictable and punishable at common law, that I have deemed it unnecessary to refer to all the cases relative to this question, and therefore have contented myself with citing some of those which appear to me most apposite. The opinion of Lord Ellenborough in The Kingz/. Turner and others, 13 East, 230, does not impugn, but strongly sanctions and confirms this doctrine. He says the cases of conspiracy have gone far enough, he should be sorry to push them still further. The charge in the indictment was for committing a civil trespass. He also says, all the cases in conspiracy proceed on the ground that the object of the conspiracy is to be effected by some falsity. I am of opinion that the judgment be reversed, and the demurrer overruled. Judgment reversed. 362 Cases on Criminal Law. REX V. BYKERDIKE. Lancaster Assizes, 1832, r Moody d^ Robinson, 179. First count of the indictment charged that R. Bykerdike, with divers others, &c., did conspire, combine, confederate, and agree unlawfully to intimidate, prejudice, and oppress one John Garforth in his trade and occupation, as agent for a certain colliery, to wit, &c., and to prevent the workmen of the said J. G. from continuing to work in the said colliery. Second count laid a conspiracy to oppress and injure Joseph Jones and others, partners in a certain colliery, to wit, &c.; and to prevent the workmen in the employ of the said J. J. and others, his partners, from continuing to work at the said colliery, and com- pel the said J. J. and others, his partners, to discharge the said workmen in their employ. Jones was an owner of the Fairbottom colliery, Garforth was agent for the colliery. Seven colliers had been summoned before a magistrate by Garforth for refusing to work. It appeared that this was done at their own request, as they were afraid to^ work except under the appearance of being compelled to do so.. The body of the other men met, having taken certain oaths, and agreed upon a letter addressed to Garforth, to the effect that all workmen in Garforth's employ would "strike in fourteen days unless the seven men were discharged from the colliery." The letter concluded, " By order of the board of directors for the body of coal miners. Fairbottom Colliery." ^ Patteson J. told the jury that a conspiracy to procure the discharge of any of the workmen would support the indictment, which did not necessarily lay the intent as to all the workmen : and, if it did, that it was still a question whether the facts would not have proved it as to all. Further, that the statute never meant to empower workmen to meet and combine for the purpose of dic- tating to the master whom he should employ ; and that this com- pulsion was clearly illegal. The defendant was convicted.^ ^ Argument of counsel is omitted. "Accord: St. v. Donaldson, 32 N. J. L., 151 (1867). Cases on Criminal Law. 363 COMMONWEALTH v. SHERIFF. Court of Quarter Sessions of Philadelphia, 1881. 15 Philadelphia, 393. Habeas corpus. Opinion delivered November 5, 1881, by Allison, P. J. The defendants were charged, on oath of Michael T. Benerman, with having unlawfully conspired to injure' the firm of Sherman & Co., by molesting, intimidating and annoy- ing said firm in their business ; and were required to give bail in the sum of ;^6oo each, to answer said charge at the present October term of the Quarter Sessions. The defendants, representing a trades union association, called upon a member of the firm at their office or place of busi- ness, and gave notice that the association had decided upon an increase of wages to be paid to journeymen printers employed in the offices of this city, and in case the increased rates were not paid by the said firm to the persons in their employ, there would be a strike on the part of their employes. The demand for increase of compensation having been refused, the defendants proceeded to the office or shop of the complainants, where their journeymen were at work, and notified them that the advanced rate of compensation having been refused there would be a strike, or that a strike was ordered, and that after that day, they should cease to work for Sherman & Co., until their wages had been advanced to the standard fixed by the union. All of the work- men, with one exception, including the foreman of the office, were members of the union, and, according to the law of their organiza- tion, were required to obey the rules and regulations of the body of which the defendants were the duly appointed representatives. Does this conduct on the part of defendants amount to an unlaw- ful conspiracy, for which they may be indicted and placed on trial ? Prior to the act of June 14, 1872, and the supplemental act of April 20, 1876, the law, as then settled, would have required this question to be answered in the affirmative. A conspiracy of workmen to raise wages by combining to coerce other persons to conform to rules adopted by such combination, regulating the price of labor, and carrying such rules into effect by acts and declarations tending to control the will and conduct of others, constituted a 364 Cases on Criminal Law. criminal, and, therefore, an indictable offence ; 3 Wharton Cr. L., sec. 2322; Bishop's Cr. L., sees. 230, 231. This is equally true, whether the conspiracy was intended to coerce the free will and freedom of action of workmen, or employer. In 3 Russell on Crimes, the law, as there stated, is: "A combination to obstruct others in carrying on their business and forcing them to submit to a book of prices, inducing workmen to leave their employer's service, the purpose being to obstruct the prosecutors in their manufacture and injure them in their business, and thus force their consent, would be a violation of law, which would be indictable." In Commonwealth v. Carlisle, Brightly's Rep., 40, Gibson, J., said : " A combination is criminal whenever the act to be done has a necessary tendency to prejudice the public or oppress individuals by unjustly subjecting them to the power of the confederates. Where the purpose is injurious or unlawful, the gist of the offence is the conspiracy." Morris Co. v. Barclay Co., 18 P. F. Smith, 186, and numerous illustrations of the doctrine there cited by Agnew, C. J. Admitting the law to have been clearly established, so that it would have subjected the defendants to indictment, for the com- bination and acts done in pursuance of the conspiracy, as proved on the hearing in this case, what is their standing now before or under the law of Pennsylvania, as affected by the legislation of 1872 and 1876? The act of 1872, Purdon, 351, declares that it shall be lawful for workingmen, acting either as individuals or as members of any club, society or association, to refuse to work for any person, whenever, among other causes recited in the act, to continue such work would be contrary to the rules or regulations of such organ- ization to which they may belong, and that such refusal shall not subject them to prosecution or indictment for conspiracy. This act sweeps away in a few words nearly all of the law which had been long established in England, and adopted in this country, touching organizations or combinations of workingmen, having for their object the regulation of amounts to be paid to them for their work, by combination in clubs or societies. That which had been held to be contrary to law is declared to be lawful, and that which before would have subjected workingmen to criminal prosecution, the act says, may be done without incurring the risk of indictment. Cases on Criminal Law. 365 It is, therefore, no longer unlawful to combine and organize and adopt regulations having for their object the increase of wages or the consideration to be paid for labor. The effect of such com- bination may be to prejudice the interests of the community, and may tend to injure individuals in their business by causing the employed to cease to work for an employer, and thus compel him to submit to a book or standard of prices, which had been fixed by workingmen who had combined and organized for that purpose The act contains, however, the material proviso that whoever shal. hinder persons who desire to labor for their employers from so doing, or other persons from being employed as laborers, shall still be subject to prosecution and punishment, as for a criminal con- spiracy. What constituted such hindrance was not defined, and it was for the pupose of removing all ambiguity connected with the word hinder, in the act of 1872, that the supplemental law of April 20, 1876, was passed, which declares that the construction to be given to the proviso contained in the act of 1872 shall be that the use of lawful and peaceful means, having for their object a lawful purpose, shall not be regarded as " in any way hindering " persons who desire to labor ; and that the use of force, threat or menace of harm to persons or property shall alone be regarded as in any .way hindering persons who desire to labor for their employers from so doing, or other persons from being employed as laborers. Under this statement of the law of Pennsylvania, as it stands to-day in full force, the only question for our consideration is, do the acts of the defendants, representing and acting in behalf of a labor society, club or organization, subject them to indictment? Does calling together upon the firm of Sherman & Co., demand- ing an increase of wages for the journeymen printers employed by the firm, with notice that a refusal would result in a strike of the workmen, followed by the defendants going together to the work- shop of the prosecutors and notifying the journeymen that a strike was ordered, constitute the use of force, threat or menace of harm to the persons or property of the firm, or to the members of the firm of Sherman & Co., or to their employes ? Are these means otherwise than lawful and peaceful, and had they for their object a lawful purpose ? We are unable to see wherein they offend against the law. If laborers may now lawfully combine, and, as •members of such combination, refuse to work for an employer, 366 Cases on Criminal Law. when, in their opinion, the wages paid to them are insufficient ; if they may now lawfully refuse to work, when to do so would be contrary to the rules, regulations or by-laws of any association to which they may belong, how can it be considered as amounting to force, threat or menace of harm, for two or more persons author- ized to act for such association, to say to an employer that a rule, by-law or regulation of the association required the payment of increased wages, and that, on refusal to make such payment, their workmen were, by virtue of their membership of a lawful society and its regulations, required to stop work ? It is true, that strik- ing, as it is called, or refusing to work, might, and probably would, result in harm to the business of Sherman & Co., but that is the result of what the workmen may now lawfully do in their asso- ciated capacity, and does not constitute a threat or menace of harm in the sense in which these terms are to be understood as they are used in the act of 1876. The fact is not to be overlooked that it had too often been a matter of just complaint that workmen resorted to actual force, to threats and menace of injury to persons and property in the enforcement of a demand for an advanced rate of wages. Upon this, the law always frowned. Such acts were always illegal. When done by agreement between two or more persons, they amounted to overt acts, growing out of a criminal conspiracy, which tended to the injury of the community and to the subver- sion of individual rights of persons and property. This was the wrong referred to in the act of 1876, which it was declared would subject the offenders to punishment in the future, as it had in the past. Such acts were declared to be outside of the protection contemplated by the legislation which we are now considering, because such means are neither lawful nor peaceful, and because they are calculated to improperly hinder persons who desire to labor for their employers from so doing, and to prevent other per- sons from being employed as laborers. It was further urged on behalf of the commonwealth that the intrusion of the defendants into the shop or workroom of the prosecutors was in itself a trespass, and, therefore, illegal, and that the means employed to carry into effect the purposes of the defendants are not sanctioned by the act of 1876. But this prop- osition is not borne out by the testimony in the cause ; for it has not been shown that visits like the one made by defendants — Cases on Criminal Law. 367 workmen of the same craft going to shops where other workmen are employed — are not, at least, with the implied permission of the employers. It is not pretended in this case that defendants ■were forbidden to enter the shop, or that they were ordered to depart after they had entered, or that their conduct was not peace- able and orderly. The foreman having charge of the shop was present, and knew of the presence of the defendants and of the object of their visit. To this, he did not object, and, in so far as he represented the prosecutors, may be said to have consented to, if he did not approve of all that was said and done. Reaching the conclusion that the defendants are not shown to have done any ■act contrary to law, that no prima facie case of unlawful combina- tion or criminal conspiracy has been shown by the testimony, they are hereby discharged. COTE V. MURPHY. Supreme Court of Pennsylvania, 1894. 159 Pennsylvania, 420. Opinion by Mr. Justice Dean, January 2, 1894 : ' The defendants were members of the Planing Mill Associa- tion of Allegheny county, and Builders' Exchange of Pittsburgh. The different partnerships and individuals, composing these associa- tions, were in the business of contracting and building and furnish- ing building material of all kinds. On the ist of May, 1891, there was a strike of the carpenters, masons and bricklayers in the building trades, bringing about, to a large extent, a stoppage of building. The men demanded an eight hour day, with no reduction in wages theretofore paid, which the employers refused to grant; then a strike by the unions of the different trades was declared. The plaintiff, at the time, was doing business in the city of Pitts- burgh as a dealer in building materials. He was not a member of ' The opinion only is printed. 368 Cases on Criminal Law. either the "Planing Mill Association," or of the "Builders' Ex- change ; " there were also contractors and builders, who belonged to neither of these organizations, who conceded the demands of the workmen ; they sought to secure building material from dealers wherever they could, and thus go on with their contracts ; if they succeeded in purchasing the necessary material, the result would be, that at least some of the striking workmen would have em- ployment at a higher rate of wages than the two associations were willing to pay ; the tendency of this was to strengthen the cause of the strikers, for those employed were able to contribute to the support of their fellow workmen who were idle. The two associations already named, sought to enlist all concerned as contractors and builders or as dealers in supplies, whether members of the associa- tions or not, in the furtherance of the one object, resistance to the demands of the workmen. The plaintiff, and six other individuals or firms engaged in the same business, refused to join them, and undertook to continue sales of building material to those builders who had conceded the eight hour day. The Planing Mill Associa- tion and Builders' Exchange tried to limit their ability to carry on work at the advance, by inducing lumber dealers and others to re- frain from shipping, or selling them in quantities, the lumber and other material necessary to carrying on the retail business ; in sev- eral instances, their efforts were successful, and the plaintiff did not succeed in purchasing lumber from certain of the wholesale dealers in Cleveland and Dubois, where he wanted to buy. The defend- ants were active members of one or other or both of the associa- tions engaged in the contest with the striking workmen. The strike continued about two months ; after it was at an end, the plaintiff brought suit against defendants, averring an unlawful and successful conspiracy to injure him in his business, and to interfere with the course of trade generally, to the injury of the public ; that the conspiracy was carried out by a refusal to sell to him building materials themselves, and by threats and intimidation preventing other dealers from doing so. Under the instructions of the court upon the evidence, there was a verdict for plaintiff in the sum of ^2,500 damages, which the court reduced to ;g 1,500 ; then judgment, and from that defendants take this appeal. The plaintiffs case is not one which appeals very strongly to a sense of justice. The mechanics of Pittsburgh, engaged in the Cases on Criminal Law. 369 different building trades, on ist of May, 1891, demanded that eight hours should be computed as a day in payment of their wages. Their right to do this is ckar. It is one of the indefeasi- ble rights of a mechanic or laborer in this commonwealth to fix such value on his services as he sees proper, and, under the consti- tution, there is no power lodged anywhere to compel him to work for less than he chooses to accept. But in this case the workmen went further ; they agreed that no one of them would work for less than the demand, and by all lawful means, such as reasoning and persuasion, they would prevent other workmen from working for less. Their right to do this is also clear. At common law, this last was a conspiracy and indictable, but under the acts of 1869, 1872, 1876 and 1 89 1, employees, acting together by agreement, may, with few exceptions, lawfully do all those things which the common law declared a conspiracy. They are still forbidden, in the prosecution of a strike, preventing any one of their number who may desire to labor from doing so, by force or menace of harm to person or property ; but the strike here was conducted throughout in an orderly, lawful manner. The employers, con- tractors and others, engaged in building and furnishing supplies, members of the two associations already mentioned, to which these defendants belonged, refused to concede the demands of the workmen, and there then followed a prolonged and bitter contest. The members of the associations refused to furnish supplies to those engaged in the construction of any building where the con- tractor had conceded the eight hour day. This, as individual deal- ers, they had a clear right to do. They could sell and deliver their material to whom they pleased. But they also went further ; they agreed among themselves that no member of the association would furnish supplies to those who were in favor of or had conceded the eight hour day, and that they would dissuade other dealers, not members of the associations, from furnishing building material to such contractors or retail dealers ; to the extent of their power, this agreement was carried out. This clearly was combination, and the acts of assembly referred to do not, in terms, embrace employers; they only include within their express terms Workmen ; hence, it is argued by counsel for appellee, these defendants are subject to all the common law liability of conspirators in their attempts to resist the demand for increased wages ; that is, there 370 Cases on Criminal Law. can be a combination among workmen to advance wages, but there can be no such combination of employers to resist the advance ; that which by statute is permitted to the one side, the common law still denies to the other. If this position be well taken, we then have this inequality ; the plaintiff who is aiding a combination, either directly or indirectly, intentionally or unintentionally, to advance wages, sues for damages members of another combination who resist the advance. Nor is there any difference in the char- acter of the acts or means on both sides in furtherance of their purposes. The workmen will not work themselves, and they use persuasion and reason with their fellows to keep them from going to work until the demand is conceded ; the employers will not sell to contractors who concede the demand, and they do their best to persuade others engaged in the same business from doing so. Then, the element of real damage to plaintiff is absent ; by far the larger number of dealers in the city and county were mem- bers of the combination which refused to sell ; only the plaintiff and six others refused to enter the combination ; the result was that these seven had almost a monopoly of furnishing supplies to all builders who conceded the advance. Plaintiff admits in his own testimony that thereby his business and profits largely increased ; in a few instances he paid more to wholesale dealers and put in more time buying than he would have done if the associations had not interfered with those who sold him ; but it is not denied that, as a result of the combination, he was individually a large gainer. True, he avers that, if defendants had gone no further than to re- fuse to sell themselves, he would have made a great deal more money; that is, he did not make as large a sum as he would have made if they had not dissuaded others, not members of the association, from seUing to him; but that, by the fact of the combination and strike, he was richer at the end than when they commenced, is not questioned. We have then these facts, somewhat pecuHar in the adminis- tration of justice: A plaintiff suing and recovering damages for an alleged unlawful act, of which he himself, in so far as he aided the workmen's combination, is also guilty, and both acts springing from the same source, a contest between employers and employed as to the price of daily wages ; and then the further fact, that this contest, instead of damaging him, resulted largely to his profit. Gases on Criminal Law. 371 We assume, so far as concerns defendants, if their agreement was unlawful, or if lawful, it was carried out by unlawful acts to the damage of plaintiff, the judgment should stand. All the authori- ties of this state go to show that while the act of an individual may not be unlawful, yet the same act, when committed by a combina- tion of two or more, may be unlawful, and therefore be actionable. A dictum of Lord Denman, in R. v. Seward, i A. & E, 711, gives this definition of a conspiracy : " It is either a combination to procure an unlawful object, or to procure a lawful object by unlaw- ful means." This leaves still undetermined the meaning to be given the words lawful and unlawful, in their connection in the antithesis. An agreement may be unlawful in the sense that the law will not aid in its enforcement, or recognize it as binding upon those who have made it, yet not unlawful in the sense that it will punish those who are parties to it, either criminally or by a verdict in damages. Lord Denman is reported to have said afterwards in R. V. Heck, 9 A. & E. 690, that his definition was not very cor- rect. See note to sec. 2291, Wharton's Criminal Law. It is conceded, however, in the case in hand, any one of defend- ants, acting for himself, had a right to refuse to sell to those favor- ing the eight hour day, and so, acting for himself, had the right to dissuade others from selling. If the act were unlawful at all, it was because of the combination of a number. Gibson, J., in Com. V. Carhsle, Brightly's R. 39 says : " Where the act is lawful for the individual, it can be the subject of conspiracy when done in concert, only where there is a direct intention that injury shall result from it, or where the object is to benefit the conspirators to the prejudice of the public or the oppression of individuals, and where such prejudice or oppression is the natural and necessary consequence." In the same case it is held : " A combination is criminal, wherever the act to be done has a necessary tendency to prejudice the public, or to oppress individuals by unjustly subjecting them to the power of the confederacy, and giving effect to the purposes of the latter, whether of extortion or mischief, According to this view of the law, a combination of employers to depress the wages of journeymen below what they would be if there was no re- currence to artificial means on either side, is criminal." This case puts the law against the combination in as strong terms, if not ,37:2 Cases ON Criminal Law. stronger, than any others of our own state. The significant qualifi- cation of the general principle, as mentioned in the last three lines, will be noticed, "if there was no recurrence to artificial means, on either side." The prejudice to the public is the use of artificial means to affect prices whereby the public suffers. A combination of stock brokers to corner a stock, of farmers to raise the price pf grain, of manufacturers to raise the price of their product, of em- ployers to reduce the price. of labor, of workmen to raise the price, were at the date of that decision, at common law, all conspiracies.^ The fixed theory of courts and legislators then was, that the price of everything ought to be, and in the absence of combination necessarily would be, regulated by supply and demand. The first to deny the justice of this theory, and to break away from it, was •labor, and this was soon followed by the legislation already noticed, relieving workmen from the penalties of what, for more than a cen- tury, had been declared unlawful .combinations or conspiracies Wages^ it was argued, should be fixed by the fair proportion labor had contributed in production ; the market price, determined by supply and demand, might or might not be fair wages, often was not, and as long as workmen were not free by combination to insist on their right to fair wages, oppression by capital, or which is the same thing, by their employers, followed. It is not our busi- ness to pass on the soundness of the theories which prompt the enactment of statutes. One thing, however, is clear ; the moment the legislature relieved one and by far the larger number of the cit- izens, of the commonwealth from the common law prohibitions against combinations to raise the price of labor and by a combina- tion the price was raised, down went the foundation on which com- mon law conspiracy was based, as to that particular subject. Before "any legislation on the question, it was held that a combination of workmen to raise the price of labor, or of employers to depress it, was unlawful, because such combination interfered with the price which would otherwise be regulated by supply and , demand; this interference was in restraint of trade or business, and prejudicial to , the public at large. Such combination made an artificial price ; workmen, by reason of the combination, were not willing to work ''■Contra : Combinations to niaintainrates of insurance. JEXaa. Ins. Co, , J/., C, SI S. W. (Ky.), 624(1899) Ed. .J; , - ; , Gases on Criminal Law. 373 for what otherwise they would actept ; employers would not pay what otherwise they would consider fair wages. Supply and de- mand consist in the atnount of labor for sale and the needs of the employer who buys. If more men offer to sell labor than are needed, the price goes down and the employer buys cheap ; if fewer than required offer, the price goes up and he buys dear ; as every seller and buyer is free to bargain for himself, the price is regulated solely by supply and demand. On this reasoning was founded common law conspiracy in this class of cases. But, in this case, the workmen, without regard to the supply of labor or the demand for it, agree upon what in their judgment is a fair price, and then combine in a demand for payment of that price ; when refused, in pursuance of the combination, they quit work, and agree not to work until the demand is conceded ; further they '■ agree by lawful means to prevent all others, not members of the combination,. from going to work until the employers agree to pay the price fixed by the combination. And this, as long as no force was used, or menaces to person or property, they had a lawful ■ right to do. And so far as is known to us, the price demanded by them may have been a fair one. But it is nonsense to say that this was a price fixed by supply and demand ; it was fixed by a combination of workmen on their combined judgment as to its fairness ; and, that the supply might not lessen it, they combined to prevent all other workmen in the market from accepting less.' Then followed the combination of employers, not to lower the wages theretofore paid, but to resist the demand of a combination for an advance ; not to resist an advance which- would naturally follow a limited supply in the market, for the supply, so far as the workmen belonging to the combination was concerned, was by combination wholly withdrawn, and as to workmen other than members, to the extent of their pOwer, they kept them out of the market ; by artificial means the market supply was almost wholly cut off. The combination of the employers, then, was nottointer- fere with the price of labor as determined by the conimon law theory, but to defend themselves against a demand made alto- gether regardless of the price as regulated by the supply. The element of an unlawful combination to restrain trade because, df greed of profit to themselves, or of mahce toward plaintiff or others is lacking, and this is the essential element on which are 374 Cases on Criminal Law. founded all decisions as to common law conspiracy in this class of cases. And however unchanged may be the law as to combina- tions of employers to interfere with wages, where such combina- tions take the initiative, they certainly do not depress the market price when they combine to resist a combination to artificially ad- vance price. "The reason of the law is the life of the law," and, as given in the cases cited by appellee, irresistibly impels to the conclu- sion that the combination here was not unlawful ; a conclusion which is clearly indicated in Com. v. Carlisle, supra, that it would not be unlawful, if there was first recurrence to artificial means by workmen to raise the market price. Here, the first step provoca- tive of a combination by the employers, was an attempt by lawful, artificial means on part of the workmen to control the supply of labor, preparatory to a demand for an advance. Nor does the fact that the appellee was not a workman or a member of any of the unions of workmen, put him in any better attitude than if he were. He undertook for his own profit to aid the cause of the workmen ; his right to do so was unquestionable. But, if the employers by a lawful combination could limit his abil- ity so to do, they did not make themselves answerable in damages to him for the consequences of a lawful act. The case of Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173, is not in point; it was the attempt to enforce the collection of a draft, given by one member of a combination, formed to raise the price of coal, to another, in consideration of certain stipulations in the agreement. It was held that the combination, being in restraint of trade, was unlawful, and, as the draft was given in pursuance of the unlawful contract, it also was tainted with the illegality, and there could be no recovery. But, if the agreement itself were not unlawful, were the methods to carry it out unlawful? If the employers' combination here had used illegal methods or means to prevent other dealers from selling supplies to plaintiff, the conspiracy might still have been, found to exist. The threats referred to, although what are usually termed threats, were not so in a legal sense. To have said they would inflict bodily harm on other dealers, or villify them in the newspapers or bring on them social ostracism, or similar declara- tions, these the law would have deemed threats, for they may deter Cases on Criminal Law. 375 a man of ordinary courage from the prosecution of his business in a way which accords with his own notions ; but to say, and even that is inferential from the correspondence, that if they continued to sell to plaintiff the members of the association would not buy from them, is not a threat. It does not interfere with the dealer's free choice ; it may have prompted him to a somewhat sordid cal- culation ; he may have considered which custom was most profit- able, and have acted accordingly ; but this was not such coercion and threats as constituted the acts of the combination unlawful : Rodgers z/. Duff, 13 Moore, P. C. 209; Bowen v. Matheson, 14 Allen, 499 ; Bohn Manufacturing Co. v. Hollis, et al.. Supreme Court of Minnesota, manuscript opinion, not yet reported [55 N. W. R. 1 119]. On the main question, the case last cited goes further than we are called upon to go, as yet, in this state. It holds that what is not unlawful when done by an individual cannot be unlawful when done by many, and therefore the combination not to deal with those who broke the rules of the association was not a con- spiracy. For this, a number of cases from other states as well as from England are cited. But the law in this state has heretofore been determined otherwise from a very early day by an unbroken line of decisions which here call for no qualification ; for, so far as concerns the facts of this case, the legislature has so changed 'the law as to render these decisions inapplicable. We concede, how- ever, that the decisions of other courts are by no means uniform. Mr. Wright, in his work on the Law of Criminal Conspiracies and Agreements (London, 1873), says : " It is conceived, that, on a re- view of all the decisions, there is a great preponderance of authority in favor of the proposition that, as a rule, an agreement or com- bination is not criminal, unless it be for acts or omissions, whether as ends or means, which would be criminal apart from agreement" Logically, the same rule would apply, as was held in Bohn Manufacturing Co. v. Hollis, to combinations which, although not criminal, are alleged to be unlawful. But without regard to whether the general rule be settled by the weight of authority, as claimed by the appellants, we hold here that this combination was not unlawful, because: i. It was not made to lower the price of wages as regulated by the supply and demand, but to resist an artificial price made by a combination 376 Cases on Criminal Law. which by statute was not unlawful. 2. The methods adopted to further the objects of the combination were not unlawful. Another point has been most earnestly pressed upon our consideration by counsel for appellants. It is argued that, under our declaration of rights, either the acts of assembly of 1869, 1872, 1876 and 1891, exempting employees from the penalties of unlaw- ful combination to fix the price of labor are void, because, by their terms, they embrace only a particular class of citizens of the com- monwealth, or their scope must be enlarged beyond the express terms of these acts so as to include within their protection all those interested in the same subject of legislation. It is argued that it is not within the power of the legislature to declare some citizens innocent of any offence against the law, for the very same act, which, when committed by some others in the same business, the law will still hold to be criminal ; that what the statute declares is not conspiracy in one case cannot, under the law, be conspiracy in the other ; and therefore in every contest of this kind between workmen and employers, the statute, if not void, must, at least, be held to operate equally to the exemption of all citizens inter- ested in the subject affected by the combination ; if there be noth- irig criminal in a combination to artificially raise wages, there can be nothing criminal in an employers' combination tO' resist the ad- vance or to artificially depress them. This question is not in the case, in the view we have taken of the facts. We are at all times averse to passing on questions the answers to which are not necessary to a decision of the case im- mediately before us, much less are we inclined to discuss and decide questions involving the constitutional power of a co-ordi- nate branch of the government. For this reason we refrain from a; consideration of the able argument of counsel for appellant on this point. The refusal of the court below to affirm appellant's seventh prayer for instructions, that, " Under all the evidence the verdict must be for defendants," was error, and, being here assigned for error, the appeal is sustained and judgment reversed. Cases on Criminal Law. 377 STATE V. STEWART. Supreme Court of Vermont, 1887. 59 Vermont, 273. Indictment for a conspiracy to hinder and prevent the Ryegate Granite Works, a corporation doing business at Ryegate, from employing certain granite cutters, and for hindering and deterring certain laborers from working for the said corporation. Heard, June Term, 1885, Ross, J., presiding, upon respondents' demurrer and motion to quash the indictment. The demurrer was overruled pro forma, and the motion to quash denied ; to which the respond- ents e^tcepted.^ The opinion of the court was delivered by Powers, J. Although authorities can be found that lay down the rule that felonies and misdemeanors, or different felonies, can- not be joined in the same indictment, still the rule in this and most of the states is otherwise. It is always and everywhere permissible for the pleader to set forth the offense he seeks to prosecute in all the various ways necessary to meet the possible phases of evidence that may appear at the trial. If the counts cover the same transaction, though involving offenses of different grade, the court has it in its power to preserve all rights of defense intact. Commonwealth v. McLaugh- lin, 12 Cush., 612; State v. Lincoln, 49 N. H., 464; State v. Shialley, 50 Vt., 736 ; State v. Thornton, 56 Vt., 35 ; Rex v. Fer- guson, 2 Stark, 489. Moreover, the inotion to quash is addressed to the discretion of the court, and its refusal is not the subject of revision here. Commonwealth v. Eastman, i Cush., 189; Com- monwealth V. Ryan, 9 Gray, 137 ; i Wharton Cr. Law, s. 519. The respondents' counsel argues that the first and second counts do not cover the offense of criminal conspiracy at common kw. But we think upon a careful examination of the English and American cases cited in argument, and we suspect that none have been overlooked on either side, that it is clear to a demonstration that a combination of the character set forth in these counts was a conspiracy at the common law; and, further, that the subject- ^ The indictment and arguments of counsel are omitted. 378 Cases on Criminal Law. matter of the offense being the same in this country as in England ; namely, an interference with the property rights of third persons, and a restraint upon the lawful prosecution of their industries as well as an unlawful control over the free use and employment by workmen of their own personal skill and labor, at such times, for such prices, and for such persons as they please, the common law of England is " applicable to our local situation and circumstances " in this behalf, and is therefore the common law of Vermont. In England and here it is lawful and, it may be added, com- mendable for any body of men to associate themselves together for the purpose of bettering their condition in any respect, financial or social. The very genius of free institutions invites them to higher levels and better fortunes. They may dictate their own wages, fraternize with their own associates, choose their own employers, and serve man and mammon according to the dictates of their own conscience. But while the law accords this liberty to one, it accords a like liberty to every other one ; and all are bound to so use and enjoy their own liberties and privileges as not to interfere with those of their neighbors. All the legislation in England and America has been pro- gressively in the direction of according to laborers the enjoyment of equal rights with others. The early English statutes, beginning with the middle of the fourteenth century, are to be read in the light of the civilization of that day, and their provisions, to us of the nineteenth century, harsh, illiberal and tyrannical, were but the reflex of the prevalent notions of class distinctions that shaped and guided the social and political polity of those days. From time to time, however, down to 1875, this legislation has been liberalized and christianized ; and to-day in England, as here, workmen stand upon the same broad level of equality before the law with all other vocations, professions, or callings whatsoever, respecting the disposition of their labor and the advancement of their associated interests. There, as here, it is unlawful for employers wrongfully to coerce, intimidate or hinder the free choice of workmen in the dis- posal of their time and talents. There, as here, it is unlawful for workmen wrongfully to coerce, intimidate or hinder employers in Cases on Criminal Law. 3 79 the selection of such workmen as they choose to employ. There, as here, no employer can say to a workman he must not work for another employer, nor can a workman say to an employer he can- not employ the service of another workman. By the law of the land, these respondents have the most unquahfied right to work for whom they please, and at such prices as they please. By the law of the land, O' Rourke and Goodfellow have the same right. By the same law, the Ryegate Granite Com- pany has the right to employ the respondents or O'Rourke on such terms as may be mutually agreed upon, without let, hinderance or dictation from any man or body of men whatever. Suppose the members of a Bar Association in Caledonia County should combine and declare that the respondents should employ no attorney, not a member of such association, to assist them in their defense in this case, under the penalty of being dubbed a "scab," and having his name paraded in the public press as unworthy of recognition among his brethren, and himself brought into hatred, envy and contempt, would the respondents look upon this as an innocent intermeddling with their rights under the law ? The proposition has only to be stated to disclose its utter incon- sistency with every principle of justice that permeates the law under which we live. If such conspiracies are to be tolerated as innocent, then every farmer in Vermont, now resting in the confidence that he may employ such assistance in carrying on his farm as he thinks he can afford to hire, is exposed to the operation of some secret code of law, in the framing of which he had no voice, and upon the terms of which he has no veto, and every manufacturer is handicapped by a system that portends certain destruction to his industry. If our agricultural and manufacturing industries are sleeping upon the fires of a volcano, liable to eruption at any moment, it is high time our people knew it. But happily such is not the law, and among English-speaking people never has been the law. The reports, English and Amer- ican, are full of illustrations of the doctrine that a combination of two or more persons to effect an illegal purpose, either by legal or illegal means, whether such purpose be illegal at common law or by statute ; or to effect a legal purpose by illegal means, whether such means be illegal at common law or by statute, is a common 380 Cases on Criminal Law. ' law conspiracy. Such combinations are equally illegal whether they promote objects or adopt means that are per se indictable ; or promote objects or adopt means that are per se oppressive, immoral or wrongfully prejudicial to the rights of others. If they seek to restrain trade, or tend to the destruction of the material prosperity of the country, they work injury to the whole public. These propositions are the clear deduction of the cases cited in argument, and breathe a spirit of equality and justice that must commend itself to every intelligent mind. Counsel have cited to us no case in which it has been ruled that this crime of conspiracy does not exist at the common law. We are referred to Mr. Wright's clever monograph upon Crim- inal Conspiracies, wherein the author, though not denying that conspiracies to injure industries and against the free exercise of one's calling according to his own choice, were held to be criminal at the common law, still attempts to throw doubt upon the basis upon which the doctrine rests. But when in i Hawkins' Pleas of the Crown, c. 27, s. 2 (a book of- great authority), 2 Russell on Crimes, 674, it is laid down "that all conspiracies whatever, wrongfully to prejudice a third person, are highly criminal at common law ; " and in 2 Wharton's Crim- inal Law, s. 2322, it is said that "a combination is a conspiracy in law whenever the act to be done has a necessary tendency to pre- judice the public or oppress individuals, by unjustly subjecting them to the power of the confederates, and giving effect to the purposes of the latter, whether of extortion or mischief;" and the same proposition, in one form of expression and another, is laid down- in 2 Bishop's Criminal Law, s. 172 ; and in Desty-'s Criminal Law, s. II ; and in 3 Chitty's Criminal Law, 1138 ; and in Arch- bold's Crim. Prac. & PI. 1830; and it was said by Denman, Ch. J., in Queen v. Kenrick, 5 Q. B., 49 : " It was contended, in the first place, that the third count was bad. by reason of uncertainty, as giving no notice of the offense charged. The whole law of con- spiracy.as it has been administered at least for the last hundred years, has been thus called in question ; for we have sufficient proof that during that period any combination to prejudice another unlaw- fully has been considered as constituting the offense so called. The offense has been held to consist in the conspiracy, and not in Cases on Criminal Law. 381 the acts committed for carrying it into effect ; and the charge has been held to be sufficiently made in general terms describing an unlawful conspiracy to effect a bad purpose ; " and Baron Rolfe, in Reg. v. Selby, 5 Cox Crim. Cas. 495 ; and Tindal, Ch. J., in Reg. V. Harris, i Car. & Marsh. 661 ; and Crompton, J., in Hilton V. Eckersley, 6 E. & B. 47 ; and Grove, J., in Rex v. Mawbey, 6 T. R. 619; and Lord Mansfield, in Rex ?/. Eccles, i Leach Crown, Cas. 274 ; and Hill, J., in Walsby v. Anley, 3 E. & E. 5 16 ; and Campbell, Ch. J., in Reg. v. Rowlands, 17 Adolp. & El. 670 ; and Baron Bramwell, in Reg. v. Druitt, 10 Cox Crim. Cas. 592; and Brett, J., in Reg. v. Bunn, 12 Cox Crim. Cas. 316; and Malins, V. C, in Springhead Co. v. Riley, L. R. 6 Eq. 551 ; and Coleridge, Ch. J., in Mogul S. S. Co., v. McGregor, L. R. 15 Q. B. Div. 476; and Shaw, Ch. J., in Commonwealth v. Hunt, 4 Met. Ill, 128; and Caton, Ch. J., in Smith v. The People, 25 111. 17 ; and Gibson, Ch. J., in Commonwealth v. Carlisle, Journal Jurisprudence, 225; and Chapman, Ch. J., in Carew v. Rlitherford, 106 Mass. I, — have all added their endorsement of the doctrine advanced as early as the work of Hawkins, supra; it is mani- fest that we are compelled to forsake the literature of doubt, and ' to cleave unto that of authority. See also Rex v.. Ferguson, 2 , Starkie, N. P. 489; Rex v. Bykerdyke, i M. & Rob. 179; People z'. Fisher, 14 Wend. 9 ; State v. Donaldson, 3 Vroom, 32, N. J. L., 151 ; Snow v. Wheeler, 113 Mass. 186; State v. Noyes, 25 Vt. 415 ; State v. Burnham, 15 N. H. 396 ; Morris Run Coal Co. V. Barclay Coal Co. 68 Penn. St. 173. Vice-Chancellor Malins, in the case cited, supra, states the law of the subject in brief but intelligible words: "Every man is at liberty to enter into a combination to keep up the price of wages ; but if he enteis into a combination for the object of. interfering with the perfect freedom of action of another man, it is an offense, not only at common law, but under Act 6, Geo. 4, c. 129." The principle upon which the cases, English and American, proceed, is, that every man has the right to employ his talents, industry and capital as he pleases, free from the dictation of others ; and if two or more persons combine to coerce his choice ,in this behalf, it is a criminal conspiracy. The labor and skill of the workman, be it of high or low degree, the plant of the manu- facturer, the equipment of the farmer, the investments of com- 382 Cases on Criminal Law. merce, are all in equal sense property. If men by overt acts of violence destroy either, they are guilty of crime. The anathemas of a secret organization of men combined for the purpose of controlling the industry of others by a species of intimidation that works upon the mind rather than the body, are quite as danger- ous, and generally altogether more effective, than acts of actual violence. And while such conspiracies may give to the individual directly affected by them a private right of action for damages, they at the same time lay a basis for an indictment on the ground that the State itself is directly concerned in the promotion of all legitimate industries and the development of all its resources, and owes the duty of protection to its citizens engaged in the exercise of their callings. The good order, peace and general prosperity of the State are directly involved in the question. In the case at bar, the third and fourth counts set forth more particularly the methods adopted by the respondents to interfere with the prosecution of its business by the Ryegate Granite Works. They charge the respondents with an intent to pre- vent the prosecution of the work of that company by threaten- ing O'Rouke, Goodfellow and others, that the Ryegate Granite Works were "scab shops" and all workmen therein were "scabs" and their names would be published in the " scab " list in the Granite Cutter's Journal, and that they would be shunned and not allowed to work with any other granite cutters, and would be dis- graced in the craft, etc.; by all of which O'Rourke, Goodfellow and others were frightened and driven away from said shops. The exposure of a legitimate business to the control of an association that can order away its employees and frighten away others that it may seek to employ, and thus be compelled to cease the further prosecution of its work, is a condition of things utterly at war with every principle of justice and every safeguard of pro- tection that citizens under our system of government are entitled to enjoy. The direct tendency of such intimidation is to establish over labor and over all industries, a control that is unknown to the law, and that is exerted by a secret association of conspirators, that is actuated solely by personal considerations, and whose plans, carried into execution, usually result in violence and the destruction of property. That evils exist in the relations of capital and labor, and that Cases on Criminal Law. 383 workmen have grievances that oftentimes call for relief, are facts that observing men cannot deny. With such questions, we, as a court, have no function to discharge further than to say that the remedy cannot be found in the boycott. We do not deem it necessary to extend this discussion— already too long drawn out — in following seriatim the numerous objections taken in the able and elaborate brief of the respondents to the different counts of this indictment. The general scope of the views expressed covers the whole ground, we think ; and the result is, the judgment of the County Court overruling the motion to quash and overruling the demurrer, and adjudging the indictment to be sufficient, is affirmed; and the cause is remanded, to be further proceeded with.' SHANNON V. COMMONWEALTH. Supreme Court of Pennsylvania, 1850. 14 Pennsylvania, 226. The opinion of the court was delivered, October 9th by Gibson, C. J.^ Of the impolicy of holding a tight rein over the doctrine of conspiracy, I expressed my opinion in Mifflin v. The Commonwealth, 5 W. & Sen 464, without intending to inti- mate that it should be suffered to run wild. It ought, at least, to appear that not only the end to be accomplished, but the motive for it was wicked. In every count of this indictment the combina- tion is laid to be an agreement to commit adultery, without refer- ence to time, place, or circumstance. The sum of the charge is joint consent, which is an ingredient in every fornication or adultery ; and if it were separately a substantive offence, parties acquitted of actual connection, might be put on trial for what would be, in morals, a lower degree of the same transgression. The statute which made it a temporal offence, contains no provi- sion for splitting it into degrees, like homicide, to give the prose- "^ Accord: Boycotting, St. v. Glidden, 55 Conn., 46 (1887); Crump v. C, 84 Va., 927 (1888).— Ed. 2 The opinion only is printed. , 3?4 Cases ON Criminal Law. cution of it more than a single chance of success. If consent to an adultery be a lower degree of temporal crime, why might not the parties to it be found guilty of it on an indictment for actual connection ? Because, it may be said, confederacy is an offence of a different stamp. It is so in form, but not in substance, else an adultery or a fornication consummated, would consist of dis- tinct and different crimes. But to call the thing by different names would not enable the attorney-general to put the parties twice in jeopardy for it. If confederacy constituted conspiracy, without regard to the quality of the act to be done, a party might incur the guilt of it by having agreed Xo be the passive subject of a battery, which did not involve him in a breach of the peace. By such preconcerted encounters, it has been said, a reputation for prowess is sometimes purchased by gentlemen of the fancy. In the same way there might be a conspiracy to com- mit suicide by drowning or hanging in concert, according to the method of the Parisian roues, though no one could be indicted of the felony if it were committed. . It may be said such con- spiracies are ridiculous and improbable. But nothing is more ridiculous than a conspiracy to commit adultery — were we not bound to treat it with becoming gravity, it might provoke a smile — or more improbable than that the parties would deliberately post- pone an opportunity to appease the most unruly of their appetites. These are subtile premises for a legal conclusion ; but their ^ubtilty is in the analysis of the principle, not in the manner of treating it. . It is impossible to lay down a rule for all cases ; but it may be , said that where concert is a constituent part of the act to be done, as it is in forpication and adultery, a party acquitted of the major cannot be indicted of the minor. If.it were an integral offence, and not an integral part of one, he might otherwise be convicted of it, though he had been before convicted of the whole. We understand that this plaintiff in error had been acquitted of actual ^adultery ; and though the fact is not found in the record, it shows how readily an indictment for the substance of the same thing in another form might be made a means of oppression. When an adulterous enterprise has been relinquished — and it ought, like every other criminal design, to have its locus penifentia, — it is impossible to believe that society has bee^i' so scathed by it, Cases on Criminal Law. 385 as to admit of no propitiation for it but public castigation. It has been said by unerring wisdom, that if a man look upon a woman to lust after her, he hath committed adultery with her already ; but God alone may judge the offences of the heart. Its lust is not the adultery which the statute has bared to the tem- poral lash. The framers of it knew the futility of attempting to smother the instincts of our nature, or to cleanse our thoughts by an Act of Assembly. Legislation can do no more than protect the public or an individual from overt acts; but how a design, aban-' doned or suppressed, could be injurious to either, has not been disclosed. Doubtless a confederacy to dishonor a man and disgrace his family, by debauching his wife, would be indictable at the out- set ; but it would be more guilty in its object and mischievous in its consequences than the appointment for the indulgence of a pas- sion or the gratification of a desire. Besides, the danger from the uncertainty of the evidence would be imminent. The purest inti- macy is sometimes mistaken for an intrigue, which is always a mystery ; and the reputation of many a virtuous wife is sacrificed to the insinuations of an enemy, working on the credulity of a sus- picious husband. Would it mend the matter much, to make the grounds of such suspicions a subject of public investigation? Decency and justice require that such investigations be not encouraged. Judgment reversed} PEOPLE V. MATHER. Supreme Court of New York, 1830. 4 Wendell, 229. Marcy, J.'' It is contended that the judge erred in instruct- ing the jury that to convict the defendant they must be satisfied that he was a party to the conspiracy at its formation originally, and that his rendering assistance in carrying it into execution, after it was formed, would not make him a party to it. 1 Accord: Miller i/. St., 58 Ala. 390 (1877) ; compare St. v, Huegin, 8s N. W. (Wis.) 1046 (1901).— Ed. 2 Part of this case is omitted. 386 Cases on Criminal Law. The proof established a conspiracy in or about Canandaigua to take Morgan from the jail at that place and to carry him away. There was no evidence to show that the defendant was then a party to it. His first visible connection with those who commenced the illegal act, if he was at all connected with them, was after Morgan had been removed seventy miles from Canandaigua. The language of the charge warrants the belief that the judge thought there was but one conspiracy proved. There is no propo- sition better established than that the venue in a criminal case must be laid in the county where the offence was committed. In indict- ments for conspiracy the venue may be laid in any county in which it can be proved that an overt act was done by any one of the con- spirators in furtherance of their common design (Archb. Crim. P. 6). Where a conspiracy was formed at sea, and an overt act done in the county of Middlesex, it was held that the venue was properly laid in that county (The King v Bresac & Scott, 4 East, 164). So in the case of The King v. Bowes and others, referred to in The King V. Bresac & Scott, the conspirators were tried in Middlesex, though there was no proof of an actual conspiracy within that county, and the acts and doings of some of them were wholly in other counties. All these cases must proceed, I think, on the principle that the crime is committed where the overt act is performed. I admit that it is the illegal agreement that constitutes the crime, when that is concluded the crime is perfect, and the conspirators may be con- victed if the crime can be proved. No overt act need be shown or even performed to authorize a conviction. If conspirators enter into the illegal agreement in one county; the crime is perpetrated there, and they may be immediately prosecuted ; but the proceedings against them must be in that county. If they go into another county to execute their plans of mischief, and there commit an overt act, they may be punished in the latter county without any evi- dence of an express renewal of their agreement. The law consid- ers that wherever they act there they renew, or perhaps to speak more properly, they continue their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance of their common design. In this respect con- spiracy resembles treason in England when directed against the life of the king. The crime consists in imagining the death of the king. In contemplation of law the crime is committed wherever the traitor Cases on Criminal Law. 387 is, and furnishes proof of his wicked intention by the exhibition of any overt act. If the proposition which I have stated relative to conspirators be correct (^and there is no accounting for the decisions on this sub- ject unless it be upon the principle I have mentioned), it necessar- ily follows that whenever a new party concurs in the plans originally formed, and comes in to aid in the execution of them, he is from that moment a fellow conspirator. He commits the offence when- ever he agrees to become a party to the transaction or does any act in furtherance of the original design. If this conclusion is properly deduced from the authorities re- ferred to, the judge erred in saying to the jury that although it should satisfactorily appear that the defendant assisted in carrying the conspiracy into execution after its formation, that fact would not make him a party to it. This doctrine of the judge would seem to render it impossible for a new party to be added to the original conspirators. Can it be true that if two men conspire to commit a criminal act and afterwards twenty others co-operate with them in executing the plan these last are not conspirators ? If a series of acts are to be performed with a view to produce a particular result he who aids in the performance of any one of these acts in order to bring about the result must have the intention to effectuate the end proposed, and if he operates with others, knowing them to have the same design, there is in fact an agreement between him and them ; his criminal intent is not to be distinguished from the intent of those who first formed the plans of the conspiracy. If two-thirds of the journeymen of any particular mechanic art in a city should agree to turn out for higher wages, and after the agreement was formed the other third should join them, would those who last acceded to the design be less exposed to the penalties of the law than those who originated it ? Would not their concurrence, without any par- ticular proof of an agreement to concur, be conclusive against them? If it had been proved that the defendant in this case had met persons in Orleans County who had Morgan in their custody, and on being made acquainted with their views had expressed his approbation of their original undertaking and given them his aid in accomplishing it, would he have not been involved in the conspir- acy ? I cannot bring my mind to entertain a doubt on the subject. But it may be said that the case supposed shows a new conspiracy. 388 Cases on Criminal Law. I concede that it does ; but it shows a new conspiracy no more than one would be shown by proving that the defendant assisted in carrying the conspiracy into execution after it was formed. It may be that the judge only meant to say that the acts of the defendant being merely in furtherance of the design of the conspirators would not make him a party to the conspiracy. They certainly would not unless he knew of the designs of the conspirators and inten- tionally lent his aid to them. It is settled on good authority that the fact of conspiring need not be proved. 2 Day's Rep. 205 ; i Wm. Black. Rep. 392. If parties concur in doing the act, although they were not previously acquainted with each other, it is a con- spiracy, per Lord Mansfield, i Hawk. ch. 72, § 2, note. Lord Kenyonsays in The King v. Hammond & Webb, 2 Esp. Cas. 719, " If a general conspiracy exists, you may go into general evidence of its nature and the conduct of its members, so as to implicate men who stand charged with acting upon the terms of it, years after those terms have been estabhshed, and who reside at a great distance from the place where the general plan is carried on." These cases show that all who accede to a conspiracy after its formation and while it is being executed, become conspirators. I am of opinion that the judge misdirected the jury as to the law when he stated to them that the defendant, if he was not a party at the formation of the conspiracy originally, would not become such by assisting to carry it into execution. But under the circumstances of this case I entertain serious doubts whether the court ought (assuming that it has the right) to grant a new trial for this misdirection. In ordinary cases the court do not grant a new trial if the judge has misstated the law to the jury unless it is probable that the result of the trial has been thereby changed. In criminal cases, where the defendant has once been acquitted, the reluctance to grant new trials has ever been very great. It is a conceded rule of law not to grant a new trial in such cases because the verdict is against evidence. Whether a new trial can be granted where there has been an acquittal without infring- ing the rights of the defendant, even where the court have misdi- rected the jury, is now an unsettled question. If the power exists it ought not to be exercised unless it is reasonable to infer that the misdirection of the court has been the cause of the acquittal. Was the verdict of acquittal in this case the result of the judge's error -Cases on Criminal Law. 389 as to the law ? I do not believe that we should be warranted in saying that it was. I do not, however, mean to be understood that I approve of the verdict of the jury. This court look at the facts only with a view to ascertain and settle the questions of law that arise in the case. It is insisted that the indictment in this case is insufficient be- cause it does not contain a particular specification of the crime and does not set forth the overt act relied on as evidence to manifest the defendant's guilt. The first count charges the defendant with having conspired and combined, &c., at Gaines, in the county of Orleans, with divers persons unknown, unlawfully to harass, vex, oppress, assault and falsely imprison one William Morgan, &c. The decision in Lambert's case, 9 Cowen, 578, was that if an in- dictment for a conspiracy does not set forth the object specifically and show that such object is a legal crime, it should state particu- larly the means intended to be used by the conspirators and show that those means are criminal. This rule has not, though the de- fendant's counsel supposed it had, a particular application to the case before us, because this indictment sets forth a legal crime as the object of the conspiracy, the false imprisonment of a citizen. The crime explicitly appears. In relation to stating overt acts in the indictment, I apprehend the counsel for the defendant has been misled as to the law by assimilating conspiracy to treason. In sev- eral respects there is an analogy between them, but the necessity of setting forth overt acts in an indictment for treason arises from statutory provisions which were not made, as I conceive, in affirm- ance of the common law. The offence in treason is an act of the mind, but as it could be proved only by external acts, there was much reason for requiring (as several acts of Parliament have done) some of those acts to be stated. This is a deviation from the com- mon rule in pleading, which requires the crime or cause of action to be stated, and not the evidence by which it is to be proved. The compassing the death of the king is treason ; the overt acts are the means made use of to effectuate the intentions or imaginations of the heart. The overt acts, as they are the only things that can be proved, are the charges to which the accused is to answer. Fos- ter, 194. No person can be convicted of treason against whom an overt act cannot be proved, but this is not the case in conspir- acy ; it is not a mental offence ; it does not consist in intents and 390 Cases on Criminal Law. imaginations. It exists where there are no overt acts other than the agreement. I have alluded already to several authorities which declare that conspirators may be convicted if no act has been done towards the accomplishment of their designs. This cer- tainly could not be the case if an overt act must be set forth in the indictment. Mr. Chitty says it is usual to frame the indictment stating the conspiracy, and then showing that in pursuance of it certain overt acts were done, but it is holden sufficient to state the conspiracy alone. 3 Chit. C. L. 909 ; 2 Lord Ray, 1 1 67, S. C. ; i Salk. 1 74. Starkie declares that a general averment that the de- fendant did conspire, &c., to accompUsh an object apparently crim- inal is sufficient without showing in what manner and by what means the conspiracy was to be produced. In strictness it is not necessary to allege any overt act done in pursuance of the criminal design. Stark. C. PL 170, i. In Rex v. Kinnersly and Moore, i Str. 193, it was decided that no overt act need be laid in the indict- ment, and several cases are there referred to wherein such indict- ments were held good. It is supposed that a conspiracy to commit a crime is merged in the crime when the conspiracy is executed. This may be so where the crime is of a higher grade than the conspiracy and the object of the conspiracy is fully accomplished, but a conspiracy is only a misdemeanor, and when its object is only to commit a mis- demeanor it cannot be merged. Where two crimes are of equal grade there can be no legal technical merger. This court had this question under consideration in the case of Bruce, and there inti- mated an opinion that a conspiracy to commit a misdemeanor was not merged in the misdemeanor when actually committed. As those who were concerned with the defendant, if he was one of the conspirators, or some of them, were known (as it ap- peared on the trial they were) to the grand jury when the indict- ment in this case was found by them, the allegation therein that the defendant conspired with persons unknown is improper, it is said, and that on such an indictment the defendant cannot be con- victed. An indictment should contain so much certainty as clearly to designate not only the particular kind of offence, but the spe- cific criminal act for which the accused is to answer. If there has been a murder the name of the person killed must, if it can be ascertained, be stated in the indictment. This the accused may rea- Cases on Criminal Law. 391 sonably require, that he may know what he has to answer ; but if he had associates I apprehend that they need not be named, because a charge of that nature may be made sufficiently certain without a disclosure of their names. So if a person is charged with a larceny, the indictment ought to show who was the owner of the goods stolen that the accused may know for what act he was to answer. But in a charge of conspiracy it seems no more necessary to specify the names of the defendant's coadjutors than in an indictment for an assault and battery to name others besides the accused who were concerned in the trespass, if the fact were really so. In Kin- nersley and Moore a case is mentioned where this point was di- rectly passed on. The bill presented to the grand jury charged that Heme with A and cum multis aliis conspired to accuse B of a felony. The grand jury returned the bill with an ignoramus as to A. Then the charge against Heme as presented by the indict- ors was that he with many others conspired, &c. The indictment was objected to as insufficient on a motion to arrest the judgment, but the court denied the motion and said the indictment was suffi- cient, it being found that Heme with many others did conspire, &c., and it might have been so laid at first. Where a person was in- dicted for engrossing hay and straw, and the act was charged to be done by him and twenty-seven others, an exception was taken to the indictment that the names of each person of the twenty-seven was not set forth ; it was overruled on the ground that it was not nec- essary to set out their names. Cro. Car. 380. It does not appear that the persons not named were unknown or that the indictment in either case charged them to be unknown. I am satisfied on reason and authority that the objection taken to the indictment in this case on this account is not sustainable. Motion for a new trial denied. 392 Cases on Criminal Law. i DILL V. STATE. Court of Criminal Appeals of Texas, 1895. 35 Texas Criminal Reports, 240. Hurst, P. J. The indictment in this case contains two counts : the first for burglary, the second for conspiracy to commit the same burglary. Appellant was convicted for the conspiracy. Counsel for appellant requested the court to give to the jury this charge : " If you believe from the evidence that the defend- ant, Steve Dill, agreed and conspired with W. D. Dill to burglarize the store of R. J. Waters, but before the defendant or W. D. Dill did any act to carry out said agreement Steve Dill revoked and abandoned his part of the agreement and told said W. D. Dill that he (Steve Dill) would have nothing to do with said contemplated burglary, then the defendant in that case would not be guilty." If this instruction was intended to be applied to the burglary, then the refusal worked no injury to appellant, because he was acquitted of that offence. If it had reference to the conspiracy, then it did not contain the law, because when the appellant and W. D. Dill entered into a positive agreement to commit the burglary, the offence — namely, conspiracy — was complete, and a withdrawal therefrom is no atonement for the offence consummated. The judgment is affirmed.' SECTION III. AUTHORIZED ACTS. (a) Acts in Furtherance of Public Justice. This kind of occision of a man according to the laws of the kingdom and in execution thereof ought not to be numbered in the rank of crimes, for it is the execution of justice, without ^ Part of the opinion only is printed. Cases on Criminal Law. 393 which there were no living, and murders, burglaries, and all capital crimes would be as frequent and common, as petit trepasses and batteries. The taking away of the life, therefore, of the malefactor according to law by sentence of the judge, and by the sheriff or other minister of justice pursuant to such sentence, is not only an act of necessity, but of duty, not only excusable, but commendable, when the law requires it. * * * The deliberate, un- compelled extrajudicial killing of a person attaint of treason, felony, or murder, or in 2l prcemunire, tho' upon the score of their being such, is murder. Therefore it is necessary (i) That he that gives sentence of death against a malefactor, be authorized by lawful commission or charter, or by prescription to have cognizance of the cause. (2) That he that executes such sentence be authorized to make such execution, otherwise it will be murder or manslaughter, or at least a great misprision in the judge that sentenceth, or in the minister that executeth. / Hale, P. C, 496. LEONIN'S CASE. Worcestershire Eyre, 1221. Select Pleas of the Crown. Sel. Sac. PL, 133. Leonin, Phillips' son, and Jacob his servant slew John of Middleton in the forest of Kinfare and fled and were dwelling in Staffordshire in the township of Kinfare. And therefore this must be discussed at Stafford. Let them be exacted and outlawed. Inquiry as to their chattels must be made at Stafford. Englishry is presented. Afterwards came John, Phillip's son, Robert of Stapleton and Adam of Peissi and undertook to produce Leonin and Jacob before the justices at Stafford to abide judgment. So the sheriff is ordered that the exacting and outlawing be respited until they shall have another order. At Lichfield came Leonin and Jacob and put themselves upon their verdict as to when, where, and by whom the deed was done. The jurors of the hundred of Seisdon say that in the time of the 394 Cases on Criminal Law. war John came with many others into the king's forest to offend in the forest, as was his wont, and was found seised of the whole body of a doe, and the king's servants and foresters could not take him alive, and he defended himself against our lord the king and cut off a forester's finger, and thus it was that he was slain. And so it is considered that [Leonin and Jacob] be quit thereof.^ UNITED STATES v. RICE. United States Circuit Court for North Carolina, 1875. I Hughes, 560. On the 1 5th of last September, Andrew Woody, of Spring Creek, Madison County, was killed by Noah H. Rice, a United States deputy marshal, who was endeavoring to serve a capias on him for violation of the Internal Revenue Laws. From facts de- veloped before the court it appears that Woody had expressed a determination to resist any process which might issue against him, and had threatened to kill the defendant Rice if he attempted to arrest him. When this officer came upon Woody the latter was armed with a rifle. His demeanor was hostile, and when commanded to sur- render he so acted as to impress the officer with the belief that his intention was to shoot him, and in self-defence he fired upon Woody with fatal effect. Rice came to Asheville and surrendered himself to the authorities, was examined by Commissioner Watts on application for bail, and committed to jail. His case was finally removed to the United States court, on Tuesday, May nth, 1875. He was placed upon trial for his life. The jury having requested full instructions from the bench, they were given as follows by Dick, J. As this is a case of considerable importance to the defendant, and also to the due administration of justice, I have deemed it proper to commit to writing my instructions to the jury upon the questions of law involved.^ It is conceded that the alleged homicide was committed by 1 See also Anon. Y. B. 30 & 31 Edw. I, 512 (1302). — Ed. ^ Part of the charge is omitted. Cases on Criminal Law. 395 the defendant, and he places his defence upon the ground that he was a regular constituted officer of the United States, and had in his hands at the time of the homicide the process of law which authorized and commanded him to arrest the deceased for a crime against the United States ; that the deceased resisted the execution of such process with a deadly weapon in his hands, and had mani- fested a purpose to use such deadly weapon in resistance ; and that the homicide was necessarily committed in the attempt to make an arrest. This defence necessarily leads us to inquire what protection the common law affords to ministerial officers, and how far they are authorized to go in the performance of their public duties. Social order and political government are dependent upon the observance of law by the citizen. The mandates of the law are executed by officers provided for such purposes, and such officers are invested by the law with the authority necessary to execute its mandates, and it affords them all the protection possible in the rightful performance of the duties imposed. This rule is absolutely necessary for the advancement of justice, and is founded in wisdom and equity and in the principles of social and political order. The law must be supreme within the sphere of its operation, or its influence would be nugatory, and there would be no certain rule to regulate human conduct in society and government, and all the rights and liberties of citizens would soon be lost in a chaos of anarchy. Mr. Justice Foster says : " Ministers of justice while in the execution of their offices are under the peculiar protection of the law." (Foster, 308.) If an officer is killed while performing his duty, the law deems such killing murder oi malice prepense. This protection is not confined to the precise time when the officer is performing his official duty, but extends over him while going to, remaining at, and returning from the place of action. Any opposition, obstruction, or resistance intended to prevent an officer from doing his official duty, is an indictable offence at common law, and the punishment is regulated by the nature of the offence. An officer is authorized to summons as many persons as may be necessary to assist him in the performance of his legal duties, and such persons are bound to obey such summons, and they are under the same protection afforded to officers, as they are for the 396 Cases on Criminal Law. time officers of the law. The law imposes upon private persons the duty of suppressing affrays, preventing felonies from being committed in their presence, and arresting such offenders and bringing them to justice; and such private persons, while performing their duties, are under the protection of the law. We may confi- dently lay down the broad general principle, that when any person is performing a public duty required of him by law, he is under the protection of the law. An officer of the law who has legal process in his hands is bound to execute it according to the mandate of the writ. If he is resisted in the performance of this duty, he mu.st overcome such resistance by the use of such force as may be necessary for him to execute his duty. If necessary, the law authorizes him to resort to extreme measures, and if the resisting party is killed in the struggle the homicide is justifiable. Garrett's Case, N. C. R., 144, Winston.^ If unnecessary and excessive force is used, after resistance has entirely ceased and the defendant in the writ has manifested his willingness to submit to the mandates of the law and be arrested, then if the said defendant is killed, the officer will be guilty of man- slaughter ; and if the blood had time to cool, the killing would be murder. 2 Wharton, Crim. Law, 1030— 31, and authorities referred to in note.^ If, however, the defendant in the writ only ceases his resistance upon the officer desisting from his attempt to arrest, and still keeps himself in a condition to renew the resistance with a deadly weapon, if the officer should renew the effort to arrest, and the officer cannot make the arrest without great personal danger he would be justified in killing the defendant. The submission of the defendant in such a case is not complete, and as long as he refuses to be arrested he is in a state of resistance ; and if he is armed with a deadly weapon, and has manifested an intent to use it, and still keeps the weapon in his possession convenient for an emergency, and the officer has reasonable grounds for believing that the weapon will be used if an arrest is attempted, the officer is 1 Accord: U. S. v. Jailor, 2 Abb., 265 (1867); Smith v. St., 26S. W. (Ark.) 712(1894); St. V. Gosnell, 74 Fed., 734(1896); Lynn z/. P., 170 III., 527 (1897); Contra, where arrest is for a misdemeanor; Stephens v. C. , 47 S. W. (Ky.)229 (1898). ''Accord: Gosse's Case, Ventr., 216(1673); St. v. Rose, 142 Mo., 4i8(i897)-ED. ^ ^ Cases on Criminal Law. 397 not required to risk his life in a rencounter, or desist from an effort to perform his duty. When a person puts himself in an armed and deadly resistance to the process of the law, he becomes virtually an outlaw, and officers are not required to show him the courtesy of a chivalrous antagonist and give him an open field and fair fight. It is only when a criminal submits to the law that it throws round him the mantle of protection and administers justice with mercy. It is the duty of every offender charged with crime in due process of law to quietly yield himself up to public justice. State v. Bryant, 65, 327 ; State v. Garrett's Case, Winston, 144. A known officer, in attempting to make an arrest by virtue o a warrant, is not bound to exhibit his warrant and read it to a defendant before he secures him, if he resists ; if no resistance is offered, the officer ought always, upon demand made, show his warrant to the party arrested or notify him of the substance of the warrant, so that he may have no excuse for placing himself in opposition to the process of the law. This is only a rule of pre- caution. A defendant is bound to submit to a known officer ; to yield himself immediately and peaceably into the custody of the officer before the law gives him the right of having the warrant read and explained ; when in resistance, the law shows him no favor. A defendant, knowing the arresting party to be an officer, is bound to submit to the arrest, reserving the right of action against the officer in case the latter be in the wrong. When a person acts in a public capacity as an officer, it will be presumed that he was rightfully appointed. (i Wharton Cr. L., Sees. 1289, 2925 ; Cooky's Case, 6 Gray, Mass., 350.) One who is not a known officer ought to show his warrant and read it, if required ; but it would seem that this duty is not so imperative as that a neglect of it would make him a trespasser ab initio, when there is proof that the party subject to be arrested had notice of the warrant, and was fully aware of its contents, and had made up his mind to resist its execution at all hazards. (Garrett's Case, supra.) The law, in its humanity and justice, will not allow unneces- sary force to be used in the execution of its process. If a defendant, without any deadly weapon or manifestation of excessive violence, makes resistance, an officer is not justified in wilfully shooting him down ; but if a defendant has a deadly weapon, and has manifested 398 Cases on Criminal Law. a purpose to use it if an arrest is attempted, the officer is not bound to wait for him to have an opportunity of carrying his purpose into effect. If the warrant is for a misdemeanor and a defendant attempts to avoid an arrest by flight, the officer has no right to shoot him down to prevent escape, nor even after an arrest has been made and defendant escapes from custody. (Foster's Case, i L. C. C. The rule is different in cases of felony. (Bryant's Case, supra.f If an officer has process in his hands issuing from a court of competent jurisdiction over the subject-matter, authorizing and commanding him to arrest a defendant, he is entitled to the pro- tection which the laws afford officers acting under process, although the process in his hands is informal and irregular. If the process is illegal and void on its face, or is against the wrong person, or its execution is attempted out of the district in which it can alone be executed, then the officer would not be under the protection of the law ; but it would seem that if he kills a resisting party under such circumstances, he would only be guilty of manslaughter, unless he had actual knowledge of his want of authority, or acted from express malice. I have stated to you many points of law which do not directly arise in the case before us ; but it is important that they should be known and well understood in the country, where, in recent years, so much violence has been committed — violence in the name of law and violence in the defiance of law. The principles of law involved in this case having been ex- plained to you by the court, it is now your duty to ascertain the facts from the testimony and apply them to the law as laid down by the court. The jury, after a retirement of two hours, found a verdict of "not guilty." 1 Accord: Reneau i/. St., 2 Lea, 720 (1879); Handley v. St., 96 Ala,, 48(1891). — Ed. 2 Accord: Carr v. St., 43 Ark., 99 (1884). — Ed. Cases on Criminal Law. 399 AUTHORIZED ACTS. {Continued) {b) Acts in Furtherance of Domestic Authority. BRADLEY AGAINST HIS WIFE. King's Bench, 1663. I Keble, 637. 3.' They refused to bind him to the peace at her suit, unless her life be in danger, because by the law he hath power of castiga- tion ; and the Bishop of London had certified he used to beat her, but that she used to provoke him ; and that by reason of their wilfulness he could not end their difference, according to the refer- ence of the court last term. STATE V. OLIVER. Supreme Court of North Carolina, 1874. 70 North Carolina, 60. Settle, J. We may assume that the old doctrine, that a husband had a right to whip his wife, provided he used a switch no larger than his thumb, is not law in North Carolina. Indeed, the Courts have advanced from that barbarism until they have reached the position, that the husband has no right to chastise his wife, under any circumstances.^ But from motives of public policy, — in order to preserve the sanctity of the domestic circle, the Courts will not listen to trivial complaints. If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive. ^ The first and second resolutions are omitted. 2 Accord ; P. v. Winters, 2 Park. C. R. 10 (1823) ; St v. Buckley, 2 Harr. 552 (1838) ; C. v. McAfee, 108 Mass. 458 (1871).— Ed. 400 Cases on Criminal Law. No general rule can be applied, but each case must depend upon the circumstances surrounding it. Without adverting in detail to the facts established by the special verdict in this case, we think that they show both malice and cruelty. In fact, it is difficult to conceive how a man, who has promised upon the altar to love, comfort, honor, and keep a woman, can lay rude and violent hands upon her, without having malice and cruelty in his heart. Let it be certified that the judgment of the Superior Court is affirmed. Per Curiam. Judgment affirmed} GREY'S CASE Old Bailey, 1666. Kelyng, 64. John Grey being indicted for the murder of William Golding, the jury found a special verdict to this effect, viz : We find that the day, year, and place in the indictment mentioned, John Grey, the prisoner, was a blacksmith, and that William Golding, the per- son killed, was his servant, and that Grey, his master, commanded him to mend certain stamps, being part belonging to his trade, which he neglected to do ; and the said Grey, his master, after coming in asked him, the said Golding, why he had not done it, and the said Grey told the said Golding, that if he would not serve him, he would serve in Bridewel, to which the said Golding replied that he had as good serve in Bridewel as serve the said Grey his master ; whereupon the said Grey, without any other provocation, struck the said Golding with a bar of iron, which the said Grey then had in his hand, upon which he and Golding were working at the anvil, and with the said blow he broke his skull, of which he died ; and if this be murder, etc. This case was found =* Accord : Bradley z/. St, i Walker, 156 (1824). — Ed. "It is sickly sensibility which holds that a man may not lay hands on his wife, even rudely, if necessary, to prevent the commission of some unlawful or criminal purpose." Armstrong, J., in Richards 7/. Richards, I Grant (Pa.) 389(1856.) Ca3es on Criminal Law. 401 specially by the desire of my brother Wylde, and I showed the special verdict to all my brethren, Judges of the King's Bench, and to my Lord Bridgman, Chief Justice of the Common Pleas. And we were all of opinion that this was murder. For if a father, master, or schoolmaster, will correct his child, servant, or scholar, they must do it with such things as are fit for correction, and not with such instruments as may probably kill them. For otherwise, under pretence of correction, a parent might kill his child, or a mas- ter his servant, or a schoolmaster his scholar, and a bar of iron is no instrument for correction. It is all one as if he had run him through with a sword ; and my Brother Morton said he remembered a case at Oxford Assizes before Justice Jones, then Judge of Assize, where a smith being chiding with his servant, upon some cross answer being given by his servant, he having a piece of hot iron in his hand, run it into his servant's belly, and it was judged murder, and the party executed. And my Lord Bridgman said, that in his circuit there was a woman indicted for murdering her child, and it appeared upon the evidence, that she kicked her and stamped upon her belly, and he judged it murder; and my Brother Twis- den said, he ruled such a case formerly in Gloucester Circuit, for a piece of iron or a sword, or a great cudgel, with which a man probably may be slain, are not instruments of correction. And therefore when a master strikes his servant willingly with such things as those are, if death ensue, the law shall judge it malice prepensed. But if a parent, master, or schoolmaster, correct his child, servant, or scholar, with such things as are usual and fit for correction, and they happen to die, Poulton de pace, page 120, saith this is by misadventure, and cites for authority, Kelloway, 108, a, b, and 136, a. But that book, which puts this case in Kelloway is 136, a, saith, that if a man correct his servant, or lord his villain, and by force of that correction he dieth, although he did not intend to kill him, yet this is a felony, because thay ought to govern themselves in their correction in such ways that such a misadventure might not happen. And I suppose, because the word misadventure is there used, therefore Poulton concludeth (it may be truly) that it is but misadventure.* I The prisoner was pardoned. 402 Cases ON CRiMiisrAL Law. COMMONWEALTH v. SEED. Common Pleas of Philadelphia, 1851. 5 Clark, 78. This was a habeas corpus. The opinion of the court was delivered by Parsons, J. This is an application for the discharge of the defendants, who are teachers in one of our public schools, who are accused with an assault and battery by the unreasonable correc- tion of one of their pupils. And the simple question for decision is, whether from the facts disclosed, they have been guilty of a violation of the law. In this city and county, where we are annually expending nearly ^350,000 for the purpose of Common School Education, where our schools number more than 50,000 children, with the appropriate number of teachers for their instruction, it is important that the law as to the rights of each, should be correctly under- stood ; and as it is feared it is not, a few moments will be occupied in giving what I conceive to be the settled principles of the com- mon law upon this subject. The right of a parent to correct his minor child, is understood. It is one of the first rules in our domestic relations ; and yet it is equally clear that the parent may be held responsible for the cruel or. barbarous treatment of his child. The school teacher, while a child is placed by the parent or guardian in school, or under charge of the teacher, is in loco parentis, and can exercise the same author- ity as the parent, and is responsible in the same manner, and the rules of law which are applicable to the parental control, are also to be applied to the school teacher. An able and accomplished American law writer, has now given us a plain and intelligent rule, which I will quote at length. When writing upon this subject, he says : "The parent has a right to govern his minor child, and as incident to this, he must have power to correct him. The maxim is, that he has power to chastise him moderately. The exercise of this power must be, in a great measure, discretionary. He may so chastise his child as to be liable in an action by the child Cases on Criminal Law. 403 against him for a battery. The child has rights which the law- will protect against the brutality of a barbarous parent. I appre- hend, however, it is a point of some difficulty to determine with exact precision, when a parent has exceeded the bounds of mod- eration. That correction which will be considered by some triers as unreasonable, will be viewed by others as perfectly reasonable. What may be considered by some a venial folly, to which none, or very little correction ought to be applied, by others will be con- sidered as an offence that requires very severe treatment. The parent is bound to correct a child so as to prevent him from becoming the victim of vicious habits, and thereby proving a nui- sance to the community. The true ground on which this ought to be placed, I apprehend is, that the parent ought to be considered as acting in a judicial capacity when he corrects, and, of course, not liable for errors of opinion. And although the punishment should appear to the triers to be unreasonably severe, and in no measure proportioned to the offence, yet if it should also appear that the parent acted conscientiously and from motives of duty, no verdict ought to be found against him. " But when the punishment is, in their opinion, thus unrea- sonable, and it appears that the parent acted malo animo, from wicked motives, under the influence of an unsocial heart, he ought to be liable to damages. For error of opinion he ought to be excused, but for malice of heart he must not be shielded from the just claims of the child. Whether there was malice may be col- lected from the circumstances attending the punishment. The instrument used, the time when, the place where, the temper of heart exhibited at the time, may all unite in demonstrating what the motives were which influenced the parent. These observations are equally applicable to the case of a schoolmaster, or to any one who acts in loco parentis." Reves' Domestic Relations, 288 ; i Blacks, Com. 58. To the doctrine here laid down we entirely assent, for it is unquestionably the law, based upon the soundest principles which control civil society. To render a parent liable to prosecution by his minor child, he must be governed by motives of malice or wickedness. For a mere error of judgment influenced, perhaps, by fond parental love for the future prosperity and happiness of his child, he cannot be 404 Cases on Criminal Law. held legally liable. The law does not permit a court to invade the sanctuary of the domestic circle and usurp the parental authority in every family, because we may think the punishment is severe. It is only when, from the surrounding facts and circum- stances of the case there is strong reason to believe that the parent has been actuated by bad and malevolent motives, using his legal parental authority for the gratification of a mind bent on mischief, that the law has given the court the right to interpose for the pro- tection and safety of the child. Such is the rule relative to the school teacher, whom the parent, for the time being, has placed in his stead. Let us, then, apply the rule to the facts of the present case. What is there in this case which shows a wicked motive or malice on the part of the teacher ? Is there anything which shows even passion or temper ? The child had played truant. It was arrested by the parent and sent with an elder sister to school; when brought to the door of the schoolroom, she refuses to go in ; begins to show great violence of temper and rebellion ; an assistant teacher tries to soothe the child, and uses persuasion to induce her to enter the schoolroom. The elder sister communicates the request of the mother that the child be taken to school. The principal teacher then comes and takes the child into the schoolroom, when the spirit of rebellion continues, manifested by screaming and jump- ing. The teacher talks to the child, urges obedience in mildness, then commands it, and finally threatens chastisement ; but all this to no purpose. Then it is she flogs the child with a small rattan. After a few blows, she stops, reasons with the child, but exacts obedience, and still uses persuasion. The child is still obstinate, and further chastisement is inflicted, till finally the obstinate and rebellious spirit is conquered. What is there in all this which shows malice or cruelty on the part of the teacher ? What is there in the language of the law which shows a " wicked motive ? " I can see nothing. The teacher required obedience to the rules of the school and it was refused. That punishment is used which she thinks is best cal- culated to produce submission, and in the manner and form com- mon in all schools. This authority the law has delegated to her, and for the exercise of it, although we might differ in opinion as Cases on Criminal Law. 405 to the manner in which it was done, at least the court will not punish for, or correct an error of judgment. But from the facts disclosed I do not think there was even an error in that particular. She entered upon the performance of her duty with moderation and firmness, as well as a determination to produce submission, which she pursued till it was accomplished by the biest means her judgment dictated. In this we think she was right. Had she done less, the directors of the school might with propriety have thought she was culpable ; and for these things the law does not hold her responsible. But it has been said there were marks of violence on the child the next day, caused by blows from the rattan. But this is but a slight circumstance to show the motive. It is much greater evidence of the obstinacy and perseverance of the child. The instrument employed was a small, smooth rattan, certainly a moderation in the instrument used in these days of improvement in education, and in most that is useful or which adds to the comfort of man. For many of us can well recollect when the birch, or hickory stick, with some rather sharp knots thereon, was the instrument for flagellation, and our parents did not complain. To hold that under such circumstances, a teacher shall be liable to a criminal prosecution, would be subversive of all govern- ment and order in our schools. Without a firm controlling power is exercised by school teachers, in exacting obedience, submission, united with quiet and good order in their schools, the public money is worse than wasted. Obedience to parental authority should be taught in the family, and must be maintained in our schools, or we shall have no obedience to the laws of our government. To the want of the proper exercise of strict parental control among a large class of citizens, may be traced in a great degree, the spirit of insubordination, disobedience of law, and the outrages upon the rights of others, that are so frequent among us. Much may be hoped from the influence of our public schools, if the teachers are faithful in teaching and exacting obedience from all under their charge. The character and interest of the teacher, combined with the refinement which education gives to the human mind in softening the heart, like parental love, is generally found a sufficient protection for the children. But if these fail, the law affords ample protec- 4o6 Cases on Criminal Law. tion against cruelty and oppression, while it is a shield to those who, in their sphere, have, as in this case, only done their duty. For the reasons given we order the defendant to be discharged.^ AUTHORIZED ACTS. {Continued) (c) Acts in Prevention of Crime. HOWELL'S CASE. Worcestershire Eyre, 1221. Select Pleas of the Crown. Sel. Soc.'^Pl., 145. Howell, the Markman, a wandering robber, and his fellows assaulted a carter, and would have robbed him, but the carter slew Howell and defended himself against the others and escaped. And whereas it is testified that Howell was a robber, let the carter go quit thereof. - And note that he is in the parts of Jerusalem, but let him come back safely, quit of that death. STOREY V. STATE. Supreme Court of Alabama, 1882. 71 Alabama, 329. Somerville, J.'^ The record contains some evidence remotely tending to show that the prisoner was in pursuit of the deceased for the purpose of recapturing a horse, which the deceased had 1 Accord : Stepfather, St. v. Alford, 68 N. C, 322 (1873); master and apprentice, St. v. Dickinson, 98 N. C., 708 (1887). Contra: Hirer of Convicts, Prewitt v. St. 51 Ala., 33 (1874); keeper of almshouse, St. v. Hull, 34 Conn., 132 (1867), unless necessary to preserve present order. St. v. Neff, 58 Ind., 516 (1877). —Ed. ' Part of the opinion is omitted. Cases on Criminal Law. 407 either stolen, acquired by fraud, or else unlawfully converted to his own use. If the property was merely converted, or taken possession of in such manner as to constitute a civil trespass, without any crinir inal intent, it would not be lawful to recapture it by any exercise of force which would amount even to a breach of the peace, much less a felonious homicide. Street v. Sinclair, ante, p. no; Burns V. Campbell, ante, p. 271. Taking the hypothesis that there was a larceny of the horse, it becomes important to inquire what would then be the rule. The larceny of a horse is a felony in this State, being specially made so by statute, without regard to the value of the animal stolen. Code, 1876, § 4358. The fifth charge requested by the defendant is an assertion of the proposition, that if the horse was feloniously taken and carried away by the deceased, and there was an apparent necessity for killing deceased in order to recover the property and prevent the consummation of the felony, the homi- cide would be justifiable. The question is thus presented, as to the circumstances under which one can kill in order to prevent the perpetration of a larceny which is made a felony by statute — a subject full of difficulties and conflicting expressions of opinion from the very earliest history of our common law jurisprudence. The broad doctrine intimated by Lord Coke was, that a felon may be killed to prevent the commission of a felony without any inevitable cause, or as a matter of mere choice with the slayer. 3 Inst. 56. If such a rule ever prevailed, it was at a very early day, before the dawn of a milder civilization, with its wiser system of more benignant laws ; for Blackstone states the prin- ciple to be, that " where a crime, in itself capital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attempting." 4 Com. 181. The reason he assigns is, that the law is too tender of the public peace and too careful of the lives of the subjects to " suffer, with impunity, any crime to be prevented by death, unless the same, if committed, would also be punished by death." It must be admitted that there was far more reason in this rule than the one intimated by Lord Coke, although all felonies at common law were punishable by death, and the person killing, in such cases, would seem to be but the execu- tioner of the law. Both of these views, however, have been 4o8 Cases on Criminal Law. repudiated by the later authorities, each being to some extent materially modified. All admit that the killing cannot be done from mere choice ; and it is none the less certain that the felony need not be a capital one to come within the scope of the rule. Gray v. Combs, 7 J. J. Marsh. 478 ; Cases on Self-Defence (Horn & Thomp.), 725, 867; Oliver v. The State, 17 Ala. 587; Carroll V. The State,. 23 Ala. 28. We find it often stated, in general terms, both by text writers and in many well considered cases, that one may, as Mr. Bishop expresses it, " oppose another who is attempting to perpetrate any felony, to the extinguishment, if need be, of the felon's existence." I Bish. Cr. Law, §§ 849-50; The State v. Rutherford, i Hawks, 457. It is observed by Mr. Bishop, who is an advocate of this theory, that ' ' the practical carrying out of the right thus conceded, is, in some circumstances, dangerous, and wherever admitted, it should be carefully guarded." i Bish. Cr. Law, § 855. After a careful consideration of the subject we are fully per- suaded that the rule, as thus stated, is neither sound in principle, nor is it supported by the weight of modern authority. The safer view is that taken by Mr. Wharton, that the rule does not authorize the killing of persons attempting secret felonies, not accompanied by force. Wharton on Hom. § 539. Mr. Greenleaf confines it to "the prevention of any atrocious crime attempted to be com- mitted by force, such as murder, robbery, house-breaking in the night-time, rape, mayhem, or any other act of felony against the person " (3 Greenl. Ev. 115); and such seems to be the general expression of the common law text writers, i Russ. Cr. 665-70; 4 Black. Com. 178-80; Whart. Amer. Cr. Law, 298-403 ; i East R C. 271; I Hale P. C. 488 ; Foster, 274. It is said by the authors of Cases on Self-Defence, that a killing which "appears to be reasonably necessary to prevent a forcible and atrocious felony against property is justifiable homicide." " This rule," it is added, " the common law writers do not extend to secret felonies, or felonies not accompanied with force," although no modern case can be found expressly so adjudging. They further add : " It is pretty clear that the right to kill in defence of property does not extend to cases of larceny, which is a crime of a secret character, although the cases which illustrate this exception are generally cases of theft of articles of small value." Cases on Self-Defence (Horr & Cases on Criminal Law. 409 Thomp.), 901-2. This was settled in Reg. v. Murphy, 2 Crawf. & Dix C. C. 20, where the defendant was convicted of shooting one detected in feloniously carrying away fallen timber which he had stolen from the premises of the prosecutor, the shooting being done very clearly to prevent the act, which was admitted to be a felony. DoHERTY, C. J., said : "I cannot allow it to go abroad that it is lawful to fire upon a person committing a trespass and larceny ; for that would be punishing, perhaps with death, offences for which the law has provided milder penalties." This view is supported by the following cases: State z/. Vance, 17 Iowa, 144; McClelland V. Kay, 14 B. Monroe, 106, and others not necessary to be cited. See Cases on Self-Defence, p. 901, note. There is no decision of this court, within our knowledge, which conflicts with these views. It is true the rule has been extended to statutory felonies, as well as felonies at common law, which is doubtless the correct doctrine, but the cases adjudged have been open crimes committed by force, and not those of a secret nature. Oliver's case, 17 Ala. 587; Carroll's case, 23 Ala. 28 ; Dill's case, 25 Ala. 15. In Pond V. The People, 8 Mich. 150, after endorsing the rule which we have above stated, it was suggested by Campbell, J., that there might possibly be some "exceptional cases" not within its influ- ence, a proposition from which we are not prepared to dissent. And again in Gray v. Combs, 7 J. J. Marsh. 478, 483, it was said by Nicholas, J., that the right to kill in order to prevent the per- petration of crime should depend " more upon the character of the crime and the time and manner of its attempted perpetration, than upon the degree of punishment attached by law." There is much reason in this view, and a strong case might be presented of one's shooting a felon to prevent the asportation of a stolen horse in the night time, where no opportunity is afforded to recognize the thief, or obtain speedy redress at law. Both the Roman and Athenian laws made this distinction in favor of preventing the perpetration of theft by night, allowing, in each instance, the thief to be killed when necessary, if taken in the act. 4 Black. Com. 180, 181. The alleged larceny, in the present case, if it occurred at all, was in the open daylight, and the defendant is not shown to have been unable to obtain his redress at law. Where opportunity is 410 Cases on Criminal Law. afforded to secure the, punishment of the offender by due course of law, the case must be an urgent one which excuses a killing to prevent any felony, much less one not of a forcible or atrocious nature. Whart. Hom. §§ 536-8. " No man, under the protection of the law," says Sir Michael Foster, "is to be the avenger of his own wrongs. If they are of such a nature for which the law of society will give him an adequate remedy, thither he ought to resort." Foster 296. It is everywhere settled that the law will not justify a homicide which is perpetrated in resisting a mere civil trespass upon one's premises or property, unaccompanied by force or felonious intent. Carroll's case, 23 Ala. 28 ; Clark's Man. Cr. Law, §§ 35 5-7; Whart. on Hom. § 540. The reason is that the preservation of human life is of more importance than the protection of property. The law may afford ample indemnity for the loss of the one, while it utterly fails to do so for the other. The rule we have above declared is the safer one, because it better comports with the public tranquillity and the peace of society. The establishment of any other would lead to disorderly breaches of the peace of an aggravated nature, and therefore tend greatly to cheapen human life. This is especially true in view of our legislative policy, which has recently brought many crimes formerly classed and punished as petit larcenies within the class of statutory felonies. It seems settled that no distinction can be made between statutory and common law felonies, whatever may be the acknowledged extent of the rule. Oliver's case, 17 Ala. 587; Cases on Self-Def , 901, 867 ; Bish. Stat. Cr. § 139. The stealing of a hog, a sheep, or a goat is, under our statute, a felony, without regard to the pecuniary value of the animal. So would be the lar- ceny of a single ear of corn, which is "a. part of any outstanding crop." Code, § 4358 ; Acts 1880-81, p. 47. It would be shock- ing to the good order of government to have it proclaimed, with the sanction of the courts that one may, in the broad daylight, .commit a wilful homicide in order to prevent the larceny of an ear of corn. In our judgment the fifth charge requested by the defendant was properly refused. It cannot be questioned, however, that if there was in truth a larceny of the prisoner's horse, he or any other private person had a lawful right to pursue the thief for the purpose of arresting him. Cases on Criminal Law. 41 1 and of recapturing the stolen property. Code, §§ 4668-70; I Bish. Cr. Proc. §§ 164-5. He is not required in such case to inform the party fleeing of his purpose to arrest him, as in ordinary cases. Code § 4669.^ And he could, if resisted, repel force with force, and need not give back or retreat. If under such circum- stances, the party making resistance is unavoidably killed, the homicide would be justifiable. 2 Bish, Cr. Law, § 647 ; I Russ. Cr., 665 ; State v. Roane, 2 Dev., 58. If the prisoner's purpose was honestly to make a pursuit, he would not for this reason be chargeable with the imputation of having wrongfully brought on the difficulty ; but the law would not permit him to resort to the pretence of pursuit, as a mere colorable device, beneath which to perpetrate crime. There are some other questions raised in the record which we do not think necessary to discuss. The judgment of the Circuit Court must be reversed, and the cause remanded for a new trial In the meanwhile the prisoner will be retained in custody until dis- charged by due process of law. AUTHORIZED ACTS. {Continued:) (, 1 ' 1,1 . ' \')\''V ' I ' i .l I' I 1* ' ,1 ii. I II I I' ^ t' i' I •' !,H, II!'- 1 ' '■;" 'i i"' I"; , , '-I ) I ' 'Ml.'