(Born? U Ulam ^rl^onl Slihratg Cornell University Library KF9218.B471S69 V.2 A selection of leading cases in criminal I 3 1924 020 173 088 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020173088 A SELECTION OF LEADING CASES IN CRIMINAL LAW. WITH NOTES BY EDMUND H. BENNETT and FRANKLIN FISKE HEARD. SECOND EDITION. ENTIRELY REVISED AND PARTLY RE-WEITTEN. VOLUME II. BY FRANKLIN FISKE HEARD. BOSTON: LITTLE, BROWN, AND COMPANY. 1869. Entered according to Act of Congress, in the year 1869, by Edmund H. Bbnnbtt amd Franklin F. Heard, In the Clerk's Office of the District Court of the District of Massachusetts. OAMBBtDOB : PBE88 OF JOHN WILSON AND BOH. TO THE HONORABLE JOHN HENRY CLIFFORD, LL.D., ATTORNEY GENEKAl OF THE COMMONWEALTH OF MASSACHUSETTS, THIS VOLUME IS DEDICATED BY THE AUTHORS. TABLE OF CASES EEPOETED. Berkian v. The State 107 (Indictment — Figures.) Calder v. Halket 308 (Liability of Judicial Officers.) Commonwealth v. Bean 172 (Indictments upon Statutes.) Commonwealth v. Elwell 290 (Indictment — Averment of Knowledge.) Commonwealth v. Hart 1 (The Pleadings of Exceptions and Provisos in Statutes.) Commonwealth v. Holder 377 (Larceny — Property Stolen in one of the United States and brought into Massachusetts.) COMMONWIIALTH V. JaMES 181 (Larceny — Actual and Constructive Possession.) Commonwealth v. McDonald 474 (Attempt to commit Larceny by Stealing from the Person.) Commonwealth v. Uprichard 371 (Larceny — Property stolen in a Foreign Country and brought into Massachusetts.) Keir v. Leeman 216,221 (Compounding Offences.) The King v. Ellis 18 (Several Felonies parts of one Transaction — One Evidence to show the Character of Another.) The King v. Hollingberry 34 (Proof of so much of an Indictment as Constitutes a Crime Punish- able by Law — Divisible Averments.) The King v. Johnson .' 432 (Libel — Evidence of Publication.) The King v. Peace 247 (Evidence — Variance by Proof of Two Persons of the same Name.) VI TABLE OP CASES EEPOETBD. The King v. All Saints, Worcester 266 (Husband and Wife — When Competent Witnesses.) The King v. Mead 394 (Dying Declarations.) The King v. Wylib 26 (Counterfeit Bank Notes and Coin — Previous and Subsequent Utterings — Different Denomination — Evidence of Guilty Knojrl- edge.) Jones v. Bice 239 (Compounding Offences.) Jones v. The State '. 123 (Burglary — Indictment.) Moore v. The Commonwealth 284 (Adultery — Indictment.) Piper v. Pearson 304 (Liability of Justices of the Peace.) The Queen v. Goodhall 446 (Indictment — Abortion.) The Queen v. Johnston 504 (Confessions.) Regina v. Baldrt 484 (Confessions.) Regina v. Caspar 451 (Indictment — Receiving Stolen Goods — Substantive Felony.) Regina v. Clark , 255 (Rape — Married Woman — Consent obtained by Fraud.) Regina v. Collins 478 (Attempt to Commit Larceny by Stealing from the Person.) Regina v. Featherstone 362 (Adulterer — Taking Goods by the Delivery of Adulteress.) Regina v. Gardner 163 (Indictment — Remoteness — False Pretences.) Regina ». Hill 204 (Monomaniac — Competency as a Witness — Question of Competency to be decided by the Court.) Regina v. Hook 80 (Perjury — Corroborative Evidence — Admissions by Defendant.) Regina v. Moore 499 (Confessions — Person in Authority.) Regina v. Preston 417 (Larceny — Finding of Lost Property.) Regina v. Lewis 298 (Manslaughter — Death in England from Injuries inflicted on the High Seas — Foreigners — Jurisdiction.) Regina v. Rowton 333 (Evidence of Character.) Regina v. Thurborn 409 (Larceny — Finding of Lost Property.) TABLE OF CASES REPORTED. Vll Regina v. Warbingham 487 note. (Confessions — Burthen of Proof — Pel-son in Authority.) Regina v. Wateks 152 (Indictment — Aider by Verdict.) Regina v. Waveeton 157 (Indictment — Aider by Verdict — Reference from one Count to another.) Rex v. Furnivai. 122 (Burglary — Indictment.) Rex v. Haines 43 (Burglary — Actual and Constructive Breaking.) Rex v. Jackson 254 (Rape — Married Woman — Consent obtained by Fraud.) Rex v. Jervis 'iSinote. (Indictment — Receiving Stolen Goods — Substantive Felony.) Rex v. John 393 (Dying Declarations.) Rex ». M'Keaenet 62 (Burglary — Breaking out of a Dwelling House.) Rex v. Smith 262 (Wife — When a Competent Witness for Co-defendant of Husband.) Rex v. Tolprbe 358 (Adulterer — Taking Goods by the Delivery of Adulteress.) Rex v. Russell 44 (Burglary — Actual and Constructive Breaking.) The State v. Berrian 118 (Indictment — Figures.) The State v. Freeman. . . . .' 250 (Indictment — Need not be certified to be " A True Bill,") United States ». Wood 67 (Perjury — Corroborative Evidence — Defendant's Letters and Gen- uine Documents.) Wright v. Clements 94 (Indictment — Written Instruments.) LEADING CRIMINAL CASES. Commonwealth v. Haet.^ March Term 1853. The Pleading of Exceptions and Provisos in Statutes. Where there is an exception so incorporated with the enacting clause of a statute, that the one cannot he read without the other, then the exception must be negatived. If the exception, by whatever phraseology indicated, is in a substantive clause, subsequent to the enacting clause, though it be in the same section, it is matter of defence to be shown by the defendants. The St. 1852, ch. 322, § 12, contains only one exception in the enacting clause ; namely, " without being appointed or authorized as aforesaid." At the end of the section, in a subsequent clause, is a proviso. An indictment which negatives the excep- tion is sufficient.^ The defendant was indicted at the January term of the muni- cipal court of the city of Boston, 1853, under tlie twelfth section of the " Act concerning the manufacture and sale of spirituous or intoxicating liquors," St. 1852, ch. 322, which provides that " No person shall be allowed to be a manufacturer of any spirituous or intoxicating liquors for sale, or a common seller thereof, with- out being duly authorized and appointed as aforesaid (i. e. as provided in previous sections), on pain of forfeiting, on the first conviction, $100 and the costs of prosecution ; and three several sales of spirituous or intoxicating liquors, either to different per- sons or to the same person, shall be sufficient to constitute a viola- tion of this section. Provided, that nothing in this act shall be construed to prevent the manufacture or sale of cider for other ' 11 Gushing, 130. ' And the words "not being then and there duly appointed and authorized therefor," is a sufficient allegation. Commonwealth v. Roland, 12 Gray, 132. VOL. II. 1 2 LEADING CRIMINAL CASES. purposes than that of a beverage ; or the sale and use of the fruit of the Tine for the commemoration of the Lord's Supper." The fourteenth section provides that, when liquors are seized under the provision of that section, the owner or keeper shall be summoned before the magistrate by whose warrant they were seized, " and if he fail to appear, or unless he shall prove that said liquors are of foreign production, that they have been imported under the laws of the United States, and in accordance therewith, that they are contained in the original packages in which they were imported, &c. they shall be declared forfeited," &c. The indictment was as follows : " The jurors etc. present, that John Hart of Boston in said county of Suffolk, trader, on the second day of January in the year of our Lord eighteen hundred and fifty- three, at Boston aforesaid in said county of Suffolk, and on divers other days and times between the first day of December in the year of our Lord eighteen hundred and fifty-two, and the day of the finding, presentment, and filing of this indictment, there without any authority or license therefor as required by law, and not being authorized or appointed so to do, by or under any of the provisions of the statutes, passed in the year eighteen hundred and fifty-two, entitled, ' An act concerning the manufacture and sale of spirit- uous or intoxicating liquors,' did presume to be, and said John Hart then and there was a common seller of wine,' brandy, rum, and other spirituous and intoxicating liquors in and about a build- ing then and there used by him as a shop, sales-room, and place of business [and did then and on said other days and times, there, without any license, appointment, or authority to sell such liquors for any purpose, commonly sell spirituous and intoxicating liquors to divers persons, more than three in number, to wit, to one Patrick Hickey, to one Thomas Murphy, and to divers other persons, whose persons and names to said jurors as yet are not known] ; against the peace," etc. After a Verdict of guilty in the court of common pleas, the de- fendant moved in arrest of judgment : " 1. Because of duplicity ; 2. Because there was no allegation of three several sales, as re- quired by the statute to constitute a common seller ; 3. Because there was no sufficient description of the person to whom the sales were made ; 4. Because it does not appear that the liquors sold were not imported in original packages ; 5. Because there is no allegation that the liquors sold were not cider for other purposes COMMONWEALTH V. HART. 3 than that of a beverage, or the fruit of the vine for the commemo- ration of the Lord's Supper." This motion was overruled by Hoar J. and the defendant excepted to the decision. J. H. Bradley, for the defendant. J. C. Park, County Attorney, for the Commonwealth. Metcalf J. The first objection taken to this indictment, that it is bad for duplicity, was waived at the argument. The second objection to the indictment is, that " there is no allegation of three several sales, as required by the statute to constitute a common seller." And it is argued for the defendant, that the sales alleged to have been made to Hickey, Murphy, and others, might have been made to them jointly, and not to each of them severally. The 12th section of St. 1852, ch. 322, on which this indictment is framed, declares that " three several sales of spirituous or intoxi- cating liquors, either to different persons, or to the same persons, shall be sufficient to constitute a violation of this section." This, however, is only a declaration of the number of sales that shall constitute a common seller, and that evidence of three several sales shall be sufficient to convict a person of being such seller. The section does not require that an indictment shall allege three several sales. It makes no provision concerning the form of an indictment against a common seller. The old forms, therefore, which were held sufficient to charge a defendant as a common seller, under former statutes, are sufficient for the same purpose, under this. And it has been decided that an indictment for this offence, under those statutes, was sufficient, which set forth in the general words of the statutes, that the defendant was a common seller, without being duly licensed, and that additional allegations as to particular sales were needless, and might be treated as sur- plusage. Commonwealth v. Pray, 13 Pickering, 359. That deci- sion which has been repeatedly recognized and sanctioned, is conclusive against the objection now under consideration ; and we need not inquire jvhether three several sales are well alleged in this indictment. It was unnecessary to allege any particular sales ; and the allegation of them may be rejected as surplusage. The other allegations constitute a sufficient indictment. The third objection to the indictment is, " that there is no suffi- cient description of the persons to whom the sales were made." The reasons on which we overrule the second objection apply to this. The allegation of sales to any individuals being needless, it 4 LEADING CRIMINAL CASES. is immaterial whether such allegation is sufficiently descriptive of the individual or not. It is surplusage, and is to be rejected as such. The fourth objection is, that it does not appear in the indict- ment, " that the liquors sold were not imported' in original pack- ages." There is no legal ground for this objection. All that is said in the statute, concerning the original packages in which liquors are imported, is in section 14, which provides that when liquors shall be seized under the provisions of that section, they shall be declared forfeited and shall be destroyed, unless the owner or keeper can prove, among other things, that they are con- tained in the original packages in which they were imported. This provision has no reference to an indictment for selling liquor con- trary to the statute. The last objection to the indictment is, that " there is no allega- tion that the liquors sold were not cider for other purposes than that of a beverage," &c. The section on which this indictment is framed renders penal the offence of being a common seller of any spirituous or intoxicating liquors, without being duly appointed or authorized. Then several provisions are made as to the evidence that shall be sufficient to warrant a conviction of this offence, and as to including clerks, servants, &c. in the same indictment with the principal, and as to alleging two or more offences in the same complaint or indictment. The section closes with a proviso, " that nothing in this act shall be construed to prevent the manufacture or sale of cider for other purposes than that of a beverage," &c. This proviso extends to other sections besides that in which it is inserted ; viz. to all the sections which prohibit the manufacture or the single sale of liquors. The rule of pleading a statute which contains an exception is usually expressed thus : " If there be an exception in the enacting clause, the party pleading must show that his adversary is not within the exception ; but if there be an excepticjn in a subsequent clause or subsequent statute, that is matter of defence, and is to be shown by the other party." The same rule is applied in plead- ing a private instrument of contract. If such instrument contain in it, first, a general clause, and afterwards a separate and distinct clause which has the effect of taking out of the general clause something that would otherwise be included in it, a party, relying upon the general clause, in pleading, may set out that clause only, COMMONWEALTH V. HAET. 5 •without noticing the separate and distinct clause which operates as an exception ; but if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it together with the exception. Gould PI. ch. 4, §§ 20, 21. Vavasour v. Ormrod, 9 Bowling & Ryland, 697, and 6 Barnewall & Cresswell, 430. 2 Saunders PI. & Ev. (2d ed.) 1025, 1026. The reason of this rule is obvious, and is simply this : Unless the exception in the enacting clause of a statute, or in the general clause in a contract, is negatived in pleading the clause, no offence or no cause of action appears in the indictment or declaration, when compared with the statute or contract. Plowden, 410. But when the exception or proviso is in a subsequent substantive clause, the case provided for in the enacting or general clause may be fully stated without negativing the subsequent exception or proviso. A prim§, facie case is stated, and it is for the party, for whom mat- ter of excuse is furnished by the statute or the contract, to bring it forward in his defence. In Steel v. Smith, 1 Barnewall & Alderson, 94, Bayley J. said : " When there is an exception so incorporated with the enacting clause, that the one cannot be read witliout the other, then the exception must be negatived." Our statute concerning the observ- ance of the Lord's day. Rev. Sts. ch. 50, furnishes as plain an example of this rule of pleading as can be found. By section 1, " No person shall do any manner of labor, business, or work, except only works of necessity or charity, on the Lord's day." By sec- tion 2, " No person shall travel on the Lord's day, except from necessity or charity." Here the exception is in the enacting clause, and that clause cannot be read without reading the exception. In an indictment on either of these sections, it is doubtless necessary to negative the exception ; otherwise, the case provided for is not made out. Labor or travelling merely is not forbidden ; but un- necessary labor and travelling, and labor and travelling not required by charity. The absence of necessity and charity is a constituent part of the description of the acts prohibited, precisely as if the statute had, in totidem verbis, forbidden Unnecessary labor and travelling, and labor and travelling not demanded by charity. All the cases in which this rule of pleading has been rightly applied, will be found, when examined accurately, to be just the same in principle. See Whitwicke v. Osbaston, 1 Levinz, 26 ; Jones v. Axen, 1 Lord Raymond, 119 ; The King v. Jukes, 8 Term R. 542 ; 6 . LEADING CRIMINAL CASES. Thibault v. Gibson, 12 Meeson & Welsby, 88, 94 ; Smith v. Moore, 6 Greenleaf, 274; Reynolds v. The State, 2 Nott & McCord, 365 ; The State v. Norman, 2 Devereux, 222 ; Teel v. Yellis, 4 Johnson, 304. It is stated in several books that the exceptions in the enact- ing clause of St. 1 Eliz. ch. 2, § 14, need not be negatived in an indictment; and a case in Godbolt, 148, and another in 2 Leonard, 5, are cited, the last of which fully supports this state- ment. The reason for those decisions is not given in the reports ; but we find that St. 29 Eliz. ch. 6, § 5, which was passed before those decisions were made, provided that an indictment on 1 Eliz. need not contain the averments which were omitted in those cases. 1 East P. C. 18. 1 Starkie Crim. PI. (2d ed.) 176. In the case of Attorney-General v. Sheriff, Forrest, 43, it was held that, after verdict, an information for the forfeiture of a ship and cargo, under the provisions of a statute, is sufficient, if by neces- sary implication a negative of an exception in the statute can be found upon the face of the information. See also Smith v. United States, 1 Gallison, 267. The word " except " is not necessary in order to constitute an exception within the rule. The words " unless," " other than," " not being," " not having," &c. have the same legal effect, and require the same form of pleading. Gill v. Scrivens, 7 Term R. 27. Spieres v. Parker, 1 Term R. 141. The King v. Palmer, 1 Leach C. C. (4th ed.) 102. Wells v. Iggulden, 5 Dowling & Ryland, 19. Commonwealth v. Maxwell, 2 Pickering, 139. The State V. Butler, 17 Vermont, 145. 1 East P. 0. 166, 167. None of the cases in which indictments have been held bad for omission to negative exceptions in a statute, can be applied to this indictment founded on St. 1852, ch. 322, § 12, which enacts that " no person shall be allowed to be a common seller of spirituous or intoxicating liquors, without being duly appointed or authorized, as aforesaid" (by §§ 2-5), "on pain of forfeiting," &c. This is the enacting clause, which contains only one exception, namely, persons duly appointed or authorized ; and that exception is neo-a- tived in this indictment. At the end of the section, in a subsequent clause, is a proviso as to the sale of cider, &c. According to the principle already stated, and according to the precedents, this proviso is matter of defence to be shown by the defendant. COMMONWEALTH V. HART, 7 There is a middle class of cases, namely, where the exception is not, in express terms, introduced into the enacting clause, but only by reference to some subsequent or prior clause, or to some other statute. As when the words " except as hereinafter mentioned," or other words referring to matter out of the enacting clause, are used. The rule in these cases is, that all circumstances of exemp- tion and modification, whether applying to the offence or to the person, which are incorporated by reference with the enacting clause, must be distinctly negatived. Verba relata inesse videntur. The King v. Pratten, 6 Term R. 559. Vavasour v. Ormrod, 9 Bowling & Ryland, 597 ; 6 Barnewall & Oresswell, 430. It is an elementary principle of pleading (except in dilatory pleas which are not favored), that it is not necessary to allege matter which would come more properly from the other side ; that is, it is not necessary to anticipate the adverse party's answer and fore- stall his defence or reply. It is only when the matter is such that the affirmation or denial of it is essential to the apparent or primS facie right of the party pleading, that it must be affirmed or denied by him in the first instance. The exceptions are overruled, and the case is to go back to the municipal court for further proceedings. By a statute of Maine, if an executor, knowing himself to be appointed as such, shall not, within thirty days next after the testator's death, cause his wiU to be filed, &c. in the Probate Ofiice, he shall upon such neglect, " without just excuse made and excepted by the judge of probate for such delay," forfeit a sum not exceeding sixteen dollars per month. On a judgment against an exec- utor for the penalty imposed by this statute, he sued out a writ of error ; and the principal error assigned was "that in the declaration it was not alleged that the original defendant had neglected to file the will without just excuse made and accepted by the judge," &c. The court reversed the judgment, for this cause. Indeed it was impossible for them to do otherwise. But the opinion, given on this point, commenced with these remarks : " There is some perplexity and contradiction in the books respecting the principles to be applied in the decision of the question, in this and many other cases somewhat similar. There seems to be much curious learning, and many nice and shadowy distinctions, the sound reason and solid sense of which are not very easily discoverable." Smith V. Moore, 6 Greenleaf, at p. 277. The surprise, excited by this exordium, has induced a review of the doctrine discussed in that case ; and this review has only increased that surprise. If there are any legal principles which are free from perplexity, or any settled legal distinctions which rest on solid sense and sound reason, surely they lie in the very path which the court must have travelled in arriving at their conclusion in Smith v. Moore. 8 LEADING CEIMINAL CASES. The rule' of pleading a statute, which contains an exception or proviso, is usually thus expressed in the books, viz. : " If there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception ; but if there be an exception in a subsequent clause, or subsequent statute, that is matter of defence, and is to be shown by the other party." The same rule is uniformly applied in pleading private instruments of con- tract. Accordingly, Lord Tenterden places statutes and contracts together. In Vavasour v. Ormrod, 9 Bowling & Kyland, 599 ; 6 Barnewall & Cresswell, 432, he thus states the doctrine : " If an act of Parliament, or a private instrument, contain in it, first, a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause something which would otherwise be included in it ; a. party, relying upon the general clause in plead- ing, may set out that clause only, without noticing the separate and distinct clause which operates as an exception ; but if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it, together with the exception." ^ When a party professes to recite a statute or private instrument, in pleading, and omits an exception in the " general clause," there is a variance. When he counts on a statute and attempts to bring a case, whether civil or criminal, within the "general clause," if he omits to negative the exception, he shows no cause of action, or no offence, within the statute. The principle is the same in both instances. That this rule, as to counting on statutes, stands on solid sense and sound reason, and that there is no perplexity in the principle of it, is easily shown by a very few cases which illustrate its application.'^ The statute 19 Geo. II. ch. 30, § 1, enacts that no mariner, who shall serve on board any privateer, &c. employed in the British sugar colonies in the West Indies, nor any mariner being on shore in said colonies, shall be liable to be im- pressed by any officer of a ship of war, unless such mariner shall have before deserted from an English ship of war. A penalty of £50 is given by the same statute, to any person who shall sue therefor, against any officer who shall impress a mariner contrary to its provisions. In an action on this statute against an officer for impressing a mariner, judgment was arrested, because the declaration did not allege that the mariner had not previously deserted from any of his Majesty's ships of war. Spieres v. Parker, 1 Term R. 141. K, how- ever, the statute had, in the enacting or general clause, merely imposed a penalty for impressing a mariner in the sugar colonies, and then had added a proviso that the act should not extend to mariners who had deserted from a ship of war, it would not have been necessary to negative, in the declaration, the mariner's former desertion. That would have been matter to come from the other side. 1 " The difference is, where an exception is incorporated in the body of the clause, he who pleads the clause ought also to plead the exception ; but when there is a clause for the benefit of the pleader, and afterwards follows a proviso which is against him, he shall plead the clause, and leave it to the adversary to show the proviso." Treby C. J. in Jones v. Axen, 1 Lord Raymond, at p. 120. 7 Term R. 31. i Johnson, 306. 2 " It is not always easy," said Hoar J. in a very recent case, " to determine to which class, whether of provisos or exceptions, a particular stipulation belongs; and this one is certainly very near the line." Sohier v. Norwich Fire Insurance Co. 11 Allen, 386, 388. COMMONWEALTH V. HAET. • 9 As the enacting clause stood, the penalty was not given for impressing a mariner in the sugar colonies, but for impressing a mariner there who had not previously deserted from a ship of war. The word unless, in the statute, had precisely the same sense and operation, as if it had been, in so many words, enacted that the penalty should be inflicted on any oflicer who should impress a mariner who had not previously deserted. The impressed mariner's not having deserted, entered into the very description, and constituted a part of the transaction made penal by the statute. The case of Gill v. Scrivens, 7 Term R. 27, stands on the same principle. Lord Keny on there comprises the whole doctrine in a single sentence, — "the writ ought to state all those circumstances that entitled the plaintiff to the execu- tion prayed by him." So in the case of the impressed mariner. Lord Mansfield very briefly gave the whole matter, — "the plaintiff must aver a case which brings the defendant within the statute." A statute of Massachusetts forbids labor and travelling on the Lord's day, except from necessity or charity. Labor or travelling, merely, is not forbidden ; but unnecessary labor and travelling, and labor and travelling not required by charity. The exception is in the enacting clause, and the absence of necessity and charity is a constituent part of the description of the acts prohibited ; exactly as if the statute had, in totidem verbis, forbidden unnecessary labor, &c. and labor, &c. not demanded by charity. The State v. Barker, 18 Vermont, 195. The third section of the same statute forbids inn-keepers, &c. to entertain, on the Lord's day, the inhabitants of the towns where inns are kept, " not being lodgers " in the inns. An indict- ment on this section was held to be bad, because it did not aver that the per- sons entertained were not lodgers. Commonwealth v. Maxwell, 2 Pickering, 139. Eex ». Dove, 3 Barnewall & Alderson, 546. See Commonwealths. Tuck, 20 Pickering, 362, 363. An English statute makes it penal for any per- son, " other than the persons employed in his Majesty's mint," &c. to make or mend any instrument for coining. This exception must be negatived in an indictment. "The want of such authority is part of the description of the offence itself." 1 East P. C. 167. So the omission of an executor to file the will of his testator was not the penal matter; but his unexdused omission. Smith V. Moore, 6 Greenleaf, 274. These few examples are suflScient to illustrate the meaning and the reason of the rule above stated. The reason is simply this, viz. that unless an exception in the enacting clause is negatived in pleading the clause, no offence, or no cause of action, appears in the indictment, or in the declaration, or no defence on the face of the plea. The case provided for, in the clause pleaded, is not made out on the record. But when the exception or proviso is in a subsequent substan- tive clause of the statute, the case provided for in the enacting clause may be fully stated, without negativing the subsequent exception or proviso. A prima facie case is stated ; and it is for the party, for whom matter of excuse is fur- nished by the statute, to bring it forward in his defence. It is among the rudimental principles of pleading, that it is not necessary to allege matter which would come more properly from the other side ; that is, it is not necessary to anticipate the adverse party's answer, and forestall his defence or reply. " Tis like leaping," as Hale C. J. said, "before one come to the stile." 1 Ventris, 217. Thus, it is unnecessary, in declaring on a bond, to negative the 10 LEADING CRIMINAL CASES. performance, by the defendant, of its conditions ; and so of all other matters of defeasance. It is only when the matter is such, that its affirmation or denial is essential to the apparent, or prim& facie, right of the party pleading, that it must be affirmed or denied by him in the first instance. See Bunbury, 177 ; Espinasse on Penal Statutes, 95; 1 Chitty Crim. Law, 284; Stephen PI. 350, 352 ; Williams v. Hingham Turnpike, 4 Pickering, »t p. 345 ; Gould PL 178 et seq. ; Purcell Crim. PI. 47. There are two cases in the old books, which, if not investigated, appear to contradict the rule above mentioned. The statute 1 Eliz. ch. 2, § 14, directs that every person "inhabiting within the realm," &c. shall diligently and faith- fully, "having no lawful or reasonable excuse to be absent," endeavor them- selves to resort to their parish church, &c. upon every Sunday, &c. upon pain of punishment by the censures of the church, and also upon pain that every per- son so offending shall forfeit, for every such offence, 12i. to the use of the poor of the same parish. In Ann Mannock's Case, Godbolt, 148, it was decided that it was not necessary to allege, in an indictment on this section of the statute, that the defendant inhabited within the realm, &c. No reason is assigned, except " that if it were otherwise, it ought to be shewed on the defendant's part." Id Elizabeth Dormer's Case, 2 Leonard, 6, it was held not to be neces- sary to allege, in the indictment, that the defendant had no lawful- or reasonable cause to be absent. It was said, the excuse should come from the defendant. And it is asserted in some of the books of most frequent reference, that under the statute 1 Eliz. ch. 2, it is not necessaiy to negative the exceptions in the enacting clause. Bacon Ab. (Gwillim's ed.) Heresy, D. 7 in the margin. Bacon Ab. Indictment, H. 8. 1 Hawkins P. C. (Curwood's ed.) 373. 2 Id. 343. 1 Chitty Crim. Law, 283, 284. It will be found, however, that by statute 29 Eliz. ch. 6, § 5, passed before the decisions in Godbolt and in Leonard, "the indictment of every such offender," against the statute 1 Eliz. ch. 6, § 14, " mentioning the not coming of such offender to the church of the parish, &c. shall he sufficient in the law ; and that it shall not be needful to mention in any such indictment, that the party offending was or is inhabiting, &c'. But if it shall happen any such offender then not to be within this realm, &c. that] in such case the party shall be relieved by plea to be put in, in that behalf, and not otherwise." It is very clear, that although the statute not only warranted but required the two decisions above stated, yet that neither Sergeant Hawkins, nor his late editor, nor the compiler nor editor of Bacon's Abridgment, had any knowledge of it. Some eminent modern Judges, English as well as American, seem also not to have been aware of its existence. Mr. Justice BuUer, in particular would not have invoked 2 Hawkins's Pleas of the Crown, 243, to the aid of Baxter's Case, hereafter to be noticed, if he had known or recollected this statute. See 1 East P. C. 18 ; 2 Chitty Crim. Law, 20 note d ; 1 Starkie Crim. PI. (2d ed.) 176 ; The State v. Barker, 18 "Vermont, 198. There are ftlso two decisions, made by the twelve Judges in England, which, at first view, may seem to contradict the rule that requires exceptions in an enacting clause of a statute, to be negatived in pleading. The statute 48 Geo. III. ch. 129, now repealed, enacted that every person who should steal money, goods, &c. from the person of another, " without such force or putting COMMONWEALTH V. HART. 11 \ in fear as is sufficient to constitute the crime of robbery," should be liable to be transported. In Rex V. Pea:rce, Russell & Ryan C. C. 174, and in Rex v. Robinson, Rus- sell & Ryan C. C. 321, the Judges held that it was neither necessary nor proper, in an indictment on this statute, to negative the force and putting in fear ; that the words, " without force,'' &c. were to be understood not charged to be done with force, &c. If the force, &c. had been negatived, proof bt force, &c. would have entitled the defendant to acquittal, and he would have been drained for presentment on a charge of robbery ; and if convicted of robbery, he must have been sentenced to execution, instead of transportation. Under this con- struction of the statute, it is obvious that the doctrine above considered was not impugned by these decisions ; and doubtless the true intentions of Parliament, as to the mitigation of punishment, were thereby effected. The case of Rex v. Baxter, 2 East P. C. 781 ; 2 Leach C. C. (4th ed.) 578; 5 Term R. 83, is less easily brought within the established principle that regulates the negativing of exceptions. By statute 22 Geo. HI. ch. 58, "In all cases where any goods or chattels shall have been feloniously taken or stolen (except where the person actually committing the felony shall have been already convicted of grand larceny, or some greater offence) every person who shall buy or receive any such goods or chattels, knowing them to have been so taken or stolen, shall be held and deemed guilty of, and may be pun- ished for, a misdemeanor, and shall be punished by fine, &c. although the principal felon be not before convicted of the said felony, and whether he be amenable to justice or not." Upon an indictment on this statute, it was held by a majority of ten of the Judges, in Rex v. Baxter, ubi supra, that it was not necessary to aver that the prin- cipal offender had not been convicted. And so the law is laid down in Archbold's Criminal Pleading (2d ed.) 155, and in 3 Chitty's Criminal Law, 959. Buller J. in giving their opinion, says (as a second ground for it, and the only one now in question), that if it were necessary to make such averment, "it would be merely stating a negative averment, which need not be proved by the prose- cutor. Such a fact is matter of evidence to be proved by the defendant, and which, when proved by him, would entitle him to an acquittal." This reason is neither satisfactory in itself, nor sustained by authority. If it be conceded that a prosecutor never need to prove a negative averment, i. e. that the burden of proof, in such case, is always on the defendant; yet this is no excuse for omitting such averment, when that averment is necessary to show a cause of action, or ground of accusation, described in a statute. But such a con- .cession is not required by the authorities. In criminal and in civil proceedings, it often lies on him, who asserts a negative fact, to prove it. In criminal proceedings, especially, the mere legal presumption of innocence frequent- ly makes a prim& facie case for the defendant, and drives the prosecutor to prove the negative. See 2 Gallison, 499; 1 Bosanquet & Puller, 468; 1 Carrington & Payne, 588 ; 5 Maule & Selwyn, 206 ; 1 Hawkins P. C. (Cur- wood's ed.) 242 ; Archbold Crim. PI. (2d ed.) 68 ; 2 Russell on Crimes (2d ed.) 673, 691, 694; 3 Russell on Crimes(4th ed.) 276 et seq. Besides, does not the very rule, which requires exceptions to be negatived, of course import the necessity of making negative averments ? And are not all thft 12 LEADING CRIMINAL CASES. cases hereinbefore cited in illustration of the rule, examples of the fatal effect of not "stating a negative averment?" See 1 Starkie Grim. PI. (2d ed.) 172. Perhaps some of the remarks that fell from the court in United States v. Smith, 1 Gallison, 261, were not so carefully weighed as they would have been, if the case had turned on the point here considered. The decision, in that case, no one will question. If then BuUer J. had assigned no better reason than this, for the decision in Rex if. Baxter, or if no better reason could be assigned, the law of that case, it would seem, might safely be denied. Prior and subsequent decisions are directly against it. The case of Kex v. Pollard, 2 Lord Raymond, 1370, which was re- garded in Baxter's Case, as a sufficient precedent, is so reported that no reason can be found for it, on the face of the report, except that previous indictments had been drawn in the same way. Sir M. Foster, in his Crown Law, 374, says of Rex v. Pollard, "the court would not, upon motion, arrest judgment upon an exception to the indictment, wJiich was never taken before ; and which must overset every judgment that had been given on the statute. This was a solid and a rational principle founded in political justice. For in cases of this kind, communis error facit jus." The passage in Hawkins, also relied on by BuUer J. as has been before seen, utterly fails to support the doctrine for which it was cited. Perhaps, however, a sufficient reason, not suggested by BuUer J. may be found for the decision in Rex «. Pollard and in Rex v. Baxter. The cases and books, already cited, show that the reason why exceptions in an enacting clause should be negatived, is, that otherwise the record does not show that the act prohibited, &e. has been done. Furthermore, in Rex v. Pemberton, 2 Burrow, 1037, the court say, "where the words of a statute are descriptive of the nature of the offence, &c. there is a necessity to specify in the particular words of the statute." And in Rex «. Jarvis, 1 East, 647 note, Foster J. says, " where negatives are descriptive of the offence, there they must be set forth." Accordingly Starkie remarks ' ' that in Baxter's and Pollard's Cases there was no necessity to call in aid so general a rule;'' viz. that negatives need not be affirmed, "for there the offence consisted in receiving stolen goods, knowing them to have been stolen ; and though the authority of the court to try the offenders depended upon the negative circumstance that the principal felons had not been con- victed, the definition of the offence itself remained just as it was before, wholly clear from any negative description." 1 Starkie Crim. PI. (2d ed.) 176, 176. Some writers and Judges have been led into darkness and confusion by sup- posing "the enacting clause" to mean the "section" of the statute (as now divided into numerical parts), in which the matter is described and enacted. This is a misapprehension of the meaning of the terms. The only question, on this point of pleading, is, whether the exception is incorporated with the sub- stance of the clause which defines the thing required to be done or omitted, or describes the Qualification or authority of the person authorized or forbidden to do or to omit it, so as to constitute a part of the definition or description of the act, omission, or person. If the exception (by whatever phraseology indicated) is in a substantive clause, subsequent to the enacting or descriptive clause ; or, as Lord Tenterden expresses it " in a separate and distinct clause ; " it is matter COMMONWEALTH V, HART. 13 of defence, and to be shown by the other party, though it be in the same section, and even in the next sentence. Archbold Crim. PI. (2d ed.) 26. Archbold Civil PL (American ed.) 159. Purcell Crim. PI. 81. Teel v. Fonda, 4 John- son, 304. Kex V. Matters, 1 Barnewall & Alderson, 362. Steel v. Smith, 1 Barnewall & Alderson, 94. In the last of these cases, Bayley J. says, " where there is an exception so incorporated with the enacting clause, that the one can- not be read without the other, then the exception must be negatived." There is another source of no small confusion on this subject ; viz. the distinc- tion so often asserted to have been established between summary convictions, and indictments and declarations. But it will be more convenient to discuss that topic at the close of this note. Some intermediate matter may make the discus- sion less obscure in that place than in this. A middle class of cases requires notice ; namely, where the exception is not in express terms introduced into the enacting clause, but only by reference to some subsequent clause, or some prior statute ; as where the words " except as here- inafter mentioned," or words of similar import, are employed. The rule, in these cases, is, that all circumstances of exemption and modification, whether applying to the offence or the person, that are incorporated, by reference, with the enact- ing clause, must be distinctly negatived. Verba relata inesse videntur. See Rex V. Pratten, 6 Term R. 559 ; The State v. Palmer, 18 Vermont, 570 ; 1 Starkie Crim. PI. (2d ed.) 176 ; 2 Saunders PI. & Ev. (2d ed.) 1025, 1026 ; 1 Paley on Convictions (Bowling's ed.) 114. Southwell's Case, Popham, 93, was decided differently. But it seems to have " had its day." It cannot stand with subsequent cases, unless, on the ground of a distinction between a proviso and an exception; which will presently be considered. This rule is applied to private instruments, as well as to statutes. Indeed all the principles of the doctrine here discussed are entirely applicable to the plead- ing of contracts. The case of Vavasour v. Ormrod, 9 Bowling & Ryland, 697; 6 Barnewall & Cresswell, 430, was debt for rent. The declaration alleged that the defendant, by the indenture of (Jemise, was to pay yearly a rent of £160. The indenture contained an engagement to pay that sum yearly, " except as hereinafter mentioned." There was also an engagement by the defendant to expend £600 in erecting a steam engine on the premises ; and there was a sub- sequent proviso, that if the defendant should pay to the plaintiff £800, in part of the £600, within three years, the rent should be only £130 yearly. Lord Ten- terden and his associates held that the matter of the proviso must be taken as part of the exception in the reservation of rent, and that the exception ought to have been negatived in the declaration ; that it was introduced into the reserva- tion, by reference to the subsequent matter in the indenture, "and must be considered as an exception in the general clause." " There is a technical distinction between a proviso and an exception, which is well understood." Abbott J. in Steel v. Smith, 1 Barnewall & Alderson, at p. 99. Alderson B. in Simpson v. Ready, 12 Meeson & Welsby, at p. 740. This distinction, though often mentioned in the books, is not often explained. When the terms are used with technical precision, the distinction between them is perhaps this, to wit, an exception exempts, absolutely, from the operation of an engagement or of an enactment ; a proviso defeats their operation, con- ditionally. An exception takes out of an engagement or enactment something 14 LEADING CEIMINAL CASES. •which would otherwise be part of the subject-matter of it ; ' a proTiso avoids them by way of defeasance or excuse.^ See 2 Lilly Ab. 493-496 ; Plowden, 361 ; Carter, 99 et seq. ; 1 Saunders, 234 a, note. 5th ed. ; 233 6. 6th ed. If this be a correct notion, substantially, of the technical difference between these terms, it is manifest that they are seldom employed in their strict tech- nical sense, in the discussion (whether by writers or Judges) of the doctrine here reviewed. It is equally manifest, that the true application of this doc- trine depends, not on the terms that may be used in a statute or contract, but on the effect of those terms (according to established rules of legal con- struction) in the one or the other of the modes just mentioned. See 1 Lilly Ab. 559; Plowden, 363, 466; Sheppard's Touchstone, 82; 1 Term R. 645. It is obvious, also, that there are numerous instances, both in statutes and contracts, where the legal effect of the terms is neither that of an excep- tion, nor of a proviso, technically taken ; but of a qualification or modification only. On adverting now to the accurate meaning of " enacting clause " in a statute, and " general clause " in a private instrument, it will readily occur to the reader, that a technical proviso will not be likely ever to be found in either. Such proviso is hardly consistent with such clauses. For the same reason, a technical exception will hardly be found in a " distinct or subsequent clause." If there are, or can be, any instances of such a position of such provisos and exceptions, then Mr. Day's rule, in a note to his edition of Chitty on Pleading, vol. 1, p. 229, may be as correctly expressed as it is correct in meaning. He says, " K the proviso furnishes matter of excuse for the defendant, it need not be negatived in the declaration, but he must plead it. In this point of view, it is immaterial whether the proviso be contained in the enacting clause, or be sub- sequently introduced in a distinct form. It is the nature of the exception, and not its location, which decides the point." The same is true, and on the same pririciple, of qualifications and modifications ; as some of the cases, first cited in this note, conclusively show. If they are descriptive, they must be negatived ; if excusatory, they need not be. It remains to be inquired, with reference to the rule of negativing matter incorporated with the enacting or general clause, by reference therein to matter elsewhere, whether there is any distinction between technical provisos and excep- tions, that will save Southwell's Case, Popham, 93, above mentioned ; whether, when the matter thus incorporated is an exception, it must be negatived ; but need not be, when it is a proviso. In Rex V. Pratten, 6 Term R. 659, the matter incorporated, by reference, with the enacting clause on which the information was founded, was an exception in a former section of the same statute ; and it was decided that the exception in that section should have been negatived. In Southwell's Case, the matter thus incor- 1 Logically speaking, an exception ought to be of that which would otherwise be included in the category from which it is excepted; but there are a great many examples to the con- trary. Lord Campbell in Gurly v. Gnrly, 8 Clark & Finnelly, at p. 764. 2 The office of a proviso in a statute is, either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misin- terpretation of it as extending to cases not intended by the legislature to be brought within its purview. Minis v. The United States, 15 Peters, at p. 445. COMMONWEALTH V. HART. 15 porated was in a proviso in a subsequent section ; and it was held that this proviso need not be negatived. Sergeant Hawkins, on the authority of this case, says, " There is no need to allege, in an indictment, that the defendant is not within the benefit of the provisos of a statute whereon it is founded ; even as to those statutes, which in their purview expressly take notice of the provisos." 2 Hawkins P. C. ch. 26, § 113. And Chitty reaffirms the same position. 1 Chitty Crim. Law, 283. Rex V. Pratten, 6 Term R. 659, was a case of conviction before magistrates, and Southwell's Case was an indictment. It will probably be seen, hereafter, that this diversity warrants no difference of decision on this point of pleading. If matter referred to in the enacting clause is therewith incorporated and makes a part thereof, what is the difference in principle, whether that matter stand as an exception or as a proviso, in the other section or statute ? Whatever it may be there, is it not technically an exception here? Or if not an exception, is it not a qualification or modification, which, as has been seen, must be dis- tinctly negatived ? Several approved writers have already been cited (ante, pp. 13, 14) , who make no mention of this distinction. See also 1 Saunders, 262 a, note 1. Vavasours. Ormrod, 9 Dowling & Ryland, 597 ; 6 Barnewall & Cresswell, 430, was a case in which a proviso, or modification, in a distinct substantive clause, was held to be, by relation, an exception or modification in the general clause of a contract. And in Steel v. Smith, 1 Barnewall &> Alderson, 94, which was an action for a penalty imposed by statute, the court fuUy recognized the same doctrine. Lord EUenborough said: " There are not, in this case, any words of reference or of virtual incorporation, but this is a distinct and substantive proviso. On that ground, I think, it was not necessary for a plaintiff to notice it in his declara- tion." Abbott J. said: "Here are not in the enacting clause any words, such as ' except as hereinafter provided.' K any such words had been intro- duced, it might fairly have been contended that the subsequent proviso was incorporated with the enacting clause; and then the objection might have been supported." That the word "proviso" was here used in its strict technical sense, will be demonstrated by inspection of the statute on which this case was founded. See 1 Barnewall & Alderson, 97 in the margin. In Massachusetts it has been held that there are a class of cases to which these principles do not apply. "The general principle is," says Dewey J. in Larned v. Commonwealth, 12 Metcalf, 241, 242, " that where, by statute or statutes, there is a gradation of offences of the same species — as in the vari- ous degrees of punishment annexed to the offence .of malicious burning of buildings, or in the various grades of the offence of larceny, it is not necessary to set forth a negative allegation, alleging that the case is not embraced in some other section than that which, upon the evidence, may be found to apply in the case on trial, and by virtue of which the punishment is to be awarded. This subject was much considered in the case of Commonwealth v. Squire, 1 Metcalf, 258, and the principle was there fully stated. If, therefore, certain acts are, by force of the statutes, made punishable with greater severity, when accompanied with certain aggravating circumstances, thus creating two grades of crime, it is no objection to an indictment, that it changes the acts which constitute the minor offence, unaccompanied by any averment that the aggravating circumstances did 16 LEADING CRIMINAL CASES, not exist. In such cases, the offence charged is to be deemed the minor offence, and punishable as such." Commonwealth v. Wood, 11 Gray, 85, 93. Common- wealth V. Hamilton, 15 Gray, 480. The case of Rex v. Marshall, 1 Moody C. C. 168, is at variance with this doctrine. In that case it was held that an indictment is fatally defective which may apply to either of two different definite offences, and does not specify which. In Massachusetts, the doctrine is, as already stated, that it is not necessary to refer to the particular statute upon which the indictment is founded. This was directly adjudged in Commonwealth v. Griffin, 21 Pickering, 523. The question arose upon an indictment under the Revised Statutes, ch. 127, § 15. That section made the having of ten or more pieces of counterfeit coin in possession, with intent to pass the same as true, a criminal offence, and prescribed the pun- ishment therefor. The sixteenth section of the same chapter made the having of less than ten pieces of counterfeit coin in possession, with intent to pass the same as true, a criminal offence, and prescribed the punishment therefor. Upon the trial of a case arising under the statute, the jury found the defendant guilty of having in his possession a number of pieces, less than ten, of counterfeit coin, with intent to pass the same as true ; and it was contended that such finding did not support the indictment; the offence charged being under § 15, and the offence proved being under § 16. There, the argument was, that the party has a right to have his offence distinctly set forth. But it was held, that it was not necessary, in the indictment, to indicate the particular section, or the particular statute, upon which it is founded ; that if the facts alleged in the indictment, and found by the verdict, show that the act done was a crime punishable by statute, it is sufficient to warrant the court in rendering a judgment. But it is said there is a diversity to be noted, in applying the rules of pleading, to summary convictions before justices, and to indictments and declarations. It is asserted that in these summary processes, the utmost strictness is required in negativing exceptions and provisos, in whatever part of the same or of an ante- cedent statute they may be inserted. There is nothing, perhaps, on which the books in most frequent use are less accurate, than on this point. Sergeant Haw- kins says, "A conviction on a penal statute ought expressly to show that the' defendant is not within any of its provisos ; for since all the proceedings are in a summary manner, it is but reasonable that such a conviction should have the highest certainty, and satisfy the court that the defendant had no such matter in his favor as the statute itseK allows him to plead." Chitty lays down the same rule and gives the same reason for it. He asserts that " convictions upon penal statutes require in this respect" (the negativing of exceptions, &c.) "much greater strictness than in indictments ; for in general, it is necessary to show by negative averments, that the defendant is not within any of the provisos or exceptions of the statute. It has indeed been said, that where the proviso is subsequent to, and independent of, the enacting clause, it is unnecessary to negative its exceptions ; but this seems contrary to the whole course of the decisions." 2 Hawkins P. C. ch. 25, § 113. 1 Chitty Crim. Law, 284r-5. Bacon Ab. Indictment, H. 3. Upon a scrutiny of the authorities, however, it is found that although Judges and writers have often asserted that there is a distinction between summary con- victions and indictments, not only as to pleading, but also as to the statement of COMMONWEALTH V. HART. 17 the evidence and the negativing of exceptions, &c. in the adjudication, yet that, at this day, this distinction is not acknowledged. See 1 Saunders, 262 a, note 1 ; Rex V. Stone, 1 East, 639. Sed vide also 1 Paley on Convictions (Dowling's ed.), 112, 123, 207, 208; Strange, 561, 1101; Andrews, 289; 1 Term R. 126, 322 ; 8 Term R. 643 ; 1 Phillipps Ev. ch. 7, § 4. The cases in which the distinction above mentioned has oftenest been spoken of, are convictions on the English game laws. A very brief notice of these laws, and the decisions under them, may therefore be here given. The statute 22 & 23 Car. II. ch. 25, declares " that all and every person and persons, not having lands and tenements, or some other estate of inheritance, in his own or his wife's right, of the clear yearly income of £100 per annum, or for term of life ; or having lease or leases of ninety-nine years, or for any longer term, of the clear yearly value of £130, other than the son and heir apparent of an esquire, or other person of higher degree, &c. &c." are to be persons, by the laws of the realm, "hot allowed to have or keep for themselves, or any other person or persons, any guns, bows, greyhounds, &c. gins, snares, &c. but shall be, and are hereby prohibited to have, keep, or use the same." By statute 6 Anne, ch. 14, it is enacted, "that if any person or persons, not qualified by the laws of this realm so to do, shall keep or use any greyhounds, &c. or any engine to kill or destroy the game, and shall be thereof convicted, &c. by the justice or justices of peace, where such offence is committed, &c. the person or persons so convicted shall forfeit the sum of £5," &c. By statute 8 Geo. I. it is made lawful, upon any offence to be committed against any law then in being, for the better preservation of the game, for any person to proceed to recover the penalty by action of debt, or on the case, &c. as well as by information and conviction before a justice of the peace. It is perfectly settled, that in an information on statute 5 Anne, under which a summary conviction is sought before a justice or justices, it is necessary to negative all the qualifications enumerated in statute 22 & 23 Car. 11. ; that it is not sufficient to use the words of the former statute, and merely allege that the defendant was not qualified by the laws of the realm, &c. Rex v. Jarvis, 1 Burrow, 148. Rex w. Earnshaw, 15 East, 466. The ground on which the courts have uniformly held that in convictions on the game laws, the qualifications in statute of Car. II. must be negatived, seems to be, that this statute is quasi incorporated with the statute of Anne. See opinions of Lord Mansfield, and Denison J. 1 East, 647 note ; and of Lord Kenyon, 1 East, 650. So far, then, there is no distinction of principle between convictions and indictments and declarations. But in the application of this principle of quasi incorporation, the courts have hitherto stopped short. In Bluet v. Needs, 2 Comyns, 622, it was decided that in an action of debt it was sufiicient to negative, in the declaration, that the defendant was qualified by the laws of the realm, without also negativing the qualifications in the statute of Car. 11. It is to be remarked, however, that Foster J. in Rex v. Jarvis, said he was " strongly inclined against the authority of the case in Comyns." 1 East, 647 note. If this distinction between an information and an action on the game laws may be regarded as established, there is an anomaly in the law. For in all other cases, it is believed, there is no distinction, as to pleading, between summary convictions, and actions and indictments. The only exception that has been VOL. II. 2 18 LEADING CRIMINAL CASES. found, has been already stated, and this, as has been seen, has been questioned by high authority. As this last topic is of little or no direct practical importance in this country, where a trial by jury is secured, ultimately, to every person charged with an offence, it has been examined in no further detail than seemed necessary for the purpose of guarding against the deduction of unwarranted inferences from books which are placed in every student's hands. For other cases illustrative of this branch of the law of criminal pleading, see Commonwealth v. Wilson, 11 Gushing, 413; Commonwealth v. Sheffield, 11 Cushing, 178 ; Commonwealth v. Edwards, 12 Cushing, 602 ; Commonwealth v. Burding, 12 Cushing, 506 ; Commonwealth v. Hoye, 11 Gray, 462 ; Common- wealth V. Fitchburg Railway Company, 10 Allen, 189 ; Commonwealth v. Trickey, 18 Allen, 559 ; The State v. Keen, 34 Maine, 600 ; The State ». Gumey, 37 Maine, 149; The State v. Abbott, 11 Foster, 434; The State v. McGlynn, 34 New Hampshire, 422 ; The State v. Wade, 34 New Hampshire, 495 ; The State v. Shaw, 85 New Hampshire, 217 ; The State v. Abbey, 29 Vermont, 60 ; The State V. Miller, 24 Connecticut, 622 ; The State v. Powers, 25 Connecticut, 48 ; Fleming v. The People, 18 E. P. Smith, 829 ; Eawlings v. The State, 2 Maryland, 201 ; Eegina v. Nugent, 6 Irish Kep. 474 ; Rex v. Lawless, 1 Hudson & Brooke, 585. The King v. Bllis.^ Easter Term 1836. Several Felonies Parts of One I'ransaction — One Evidence to Show the Character of Another. If several acts of felonious taking property, are so connected as to form one transaction, evidence of each taking may be received against the prisoner, so as to establish the specific felony charged in the indictment. Affidavits are not admissible to aggravate punishment upon a conviction for felony, even though the record be removed into this court. Indictment against the prisoner for feloniously stealing six pieces of the current coin of this realm, called shillings, the property of Susan Newman. Second count, laid the property in S. Newman, and her nine children, naming them. Third count, charged the prisoner with feloniously stealing six pieces of the current coin of the realm, called sixpences, the property of Susan Newman ; and the fourth count laid the property in the sixpences to be in S. New- man, and her nine children, naming them. This indictment was ' 9 Dowling & Ryland, 174, and 6 Barnewall & Cresswell, 147, but not so fully reported. THE KING V. ELLIS. 19 found at the jail delivery, in and for the city of Exeter, and upon a suggestion made by the prisoner, supported by affidavits, that he could not have a fair and impartial trial at Exeter, by reason of prejudicial statements published respecting his case in the Exeter newspapers, it was afterwards removed into this court by certi- orari ; whereupon an order was made that a jury to try the indict- ment should be impanelled from the body of the county of Devon. At the last summer assizes for the said county, the prisoner was accordingly tried before Littledale J. on the nisi prius side, and found guilty. In support of the indictment, the facts proved were these : The prisoner had been shopman in the employment of the prosecutrix, a general dealer, at Exeter. Suspicion being enter- tained of his honesty, on the 5th September 1825, one of the sons of the prosecutrix, put seven shillings, and one half crown, and one sixpence, all marked in a particular manner into the shop till, in which there was no other silver at that time. The prisoner was then watched by the prosecutrix's son, who went in and out of the shop at different times, looking occasionally into the till, whilst customers came into the shop and purchased goods. When the till was first examined by the prosecutrix's son, it contained eleven and sixpence. After that he received one shilling from a customer and placed it in the till. Another customer soon afterwards paid one shilling to the prisoner, who was seen to go with it to the till, to put his hand into the till, and withdraw it clenched. He then left the counter, and was observed to raise his hand, clenched, to one of his waistcoat pockets. The till was examined again by the prosecutrix's son, and he found only lis. 6c?. instead of 13s. Qd., which ought to have been there. The counsel for the prosecution was then proceeding to examine the witness to other acts of taking money from the till, when Wilde, Serjeant, for the prisoner, con- tended the prosecutrix must make her election, and confine herself to evidence of one felony, and ought not to be permitted to prove cumulative felonies. The learned Judge, after consulting with Gaselee J. the other Judge of assize, overruled the objection, and allowed the prosecutrix's son to prove several takings by the pris- oner. He proved that upon each of several inspections of the till after the prisoner had opened it, he found a less sum than he expected to find. On one occasion there was 8s. M. in the till, and he observed that most of that money was marked. He then put in Is. Qd. more, and upon examining the till again he found 20 LEADING CEIMINAL CASES. only 6s. Qd. A constable was then sent for, and on searching the prisoner's person, there were 14s. Qd. found in his waistcoat pocket. Six of the shillings were part of the' money marked by the prose- cutrix's son, and placed by him in the till that morning. C. F. Williams for the prosecution said, he relied upon the taking of the 3s. %d. after the witness had added Is. M. to the 8«. &d., which was then in the till, and desired that the learned Judge would exclude from the consideration of the jury the other tak- ings ; which was done accordingly. The jury found the prisoner guilty. Praed, on the fourth day of this term (the prisoner being present and placed at the bar), moved for a rule nisi for a new trial, on the ground that the learned Judge had improperly received evidence of more than one felony, the effect of which was to prejudice the prisoner ; for, although at the conclusion of the case the counsel ■for the crown desired the attention of the jury to be confined to one act of taking, yet, as other acts of taking had been previously proved, the minds of the jury must, necessarily, have been biassed against the prisoner by such evidence, when they came to consider of their verdict. Abbott C. J. There may be several counts in an indictment, each professing to charge the prisoner with a distinct and separate felony ; and in such case it is usual for the Judge to confine the prosecutor to evidence of one single act of felony, in order that the prisoner may not be entangled in his defence ; but where the act charged is of itself multifarious, and it becomes necessary to go through the whole of the evidence, in order to arrive at the truth, I think the judge at the trial has a right to receive such evidence as he in his discretion may think proper for the ends of justice. The course of proceeding at a trial of this nature is entirely a matter of discretion in the judge; and it can be no ground for granting a new trial, that he has exercised that discre- tion in a way which may be thought prejudicial to the prisoner. If we should lay down the rule so strictly as is contended for, it might lead to very serious consequences, for it might tend to the exclusion of evidence, in many cases essential to the ends of jus- tice. It very often becomes necessary to go through a mass of evidence, in order to enable the judge to fix upon that which establishes distinct proof of a specific crime. However, although we are of opinion that no rule ought now to be taken, yet if THE KING V. ELLIS. 21 when the prisoner is brought up for judgment, and the learned Judge's report is read, it should occur to us that any injustice has been done towards the prisoner, he shall have the benefit of our opinion. The prisoner was then remanded, and on a subsequent day he was brought up for judgment, when the Judge's report having been read, Chitty and Praed, renewed the application, and contended : first, that inasmuch as each act of taking money from the till was a dis- tinct felony, the evidence of any more than one act was inadmis- sible on the trial of the prisoner, because of its tendency to distract his attention, and confound him in his defence, and also of the effect it was likely to have on the mind of the jury to his prejudice ; and secondly, that if all the marked money was taken at one time, then the offence amounted only to embezzlement, which was different from that with which he was charged ; and therefore, in either view of the case, the prosecutrix ought to have been put to her election, and not allowed to go into evidence of any more than one taking. They cited 1 East P. 0. 354,. 519; Rex v. Wylie, 1 New Reports, 92 ; 2 Leach C. C. 983, and post p. 26 ; Rex v. Mil- lard, Russell & Ryan C. 0. 245 ; Rex v. Taylor, Russel & Ryan C. 0. 63 ; 3 Bosanquet & Puller, 596, and 2 Leach 0. 0. 974 ; Rex V. Ball, Russell & Ryan C. 0. 132 ; 1 Campbell, 324. C. F. Williams, and Ooleridge, for the Crown, were stopped by the court. Bayley J.i I am of opinion that it was in the discretion of the judge to confine the prosecutrix to the proof of one felony, or to allow her to give evidence of other acts which were all tending to one entire transaction, and to show that in fact but one felony was committed. Generally speaking, where an indictment contains charges of different unconnected felonies, the rule is to confine the prosecutor to one specific charge, in order that the prisoner may not be embarrassed in his defence ; but where there are several felonies connected together, forming parts of one entire transaction, then one may be evidence to show the character of the other. It seems to me, that all the evidence admitted in this case, had a tendency to show that the prisoner was guilty of the felony in question. The evidence objected to, was in fact, nothing more than the history of the state of the till from the time when the ' Abbott C. J< was absent. 22 LEADING CRIMINAL CASES. marked money was put into it, until the period when it was found in the possession of the prisoner. Early in the morning the prose- cutrix's son puts into the till seven shillings, a half-crown, and a sixpence, marked in a particular manner. He afterwards sees the prisoner go to the till, and then ascertains what is the state of the till. Unless he had done so, he could not tell whether the prisoner had abstracted any of the marked money at that time. The subsequent examinations of the till, only went to show a history of the state of it ; and if that particular question had been pointed out to the attention of the court, probably the prisoner's counsel would have acceded to it. Inasmuch, therefore, as the whole of the evidence only went to give an account of the state of the drawer, until the ultimate period of the prisoner's detection (and with that view it was absolutely necessary), I think there was nothing unfair towards the prisoner, in allowing the evidence to be received, and consequently that there is no ground for the present application. HoLEOYD J. I am of the same opinion. In the case of Rex v. Egerton, Russell & Ryan 0. C. 375, where the prisoner was in- dicted for robbing the prosecutor of a coat, the robbery having been committed by the prisoner's threatening to charge the prose- cutor with an unnatural crime, I received evidence of a second ineffectual attempt to obtain a 11. note from the prosecutor by similar threats, but reserved the point for the consideration of the Judges, and they were of opinion that the evidence was admissible to show that the prisoner was guilty of the prior offence. LiTTLEDALE J. coucurrcd. Hule refused. The counsel for the prosecution tendered aflSdavits in aggrava- tion of punishment ; but the court was clearly of opinion that in cases of felony such a mode of proceeding was not allowable. In cases of misdemeanor the rule was otherwise. The court sentenced the prisoner to be transported for seven years. The principle, that, when felonies are so connected together as to form part of one entire transaction, evidence of one may be given to show the character of the other, is well illustrated by several recent cases. Kegina v. Rearden, 4 Fos- ter & Finlason, 76, Willes J. Commonwealth v. Riggs, 14 Gray, 376. Thus, where the lessee of a coal-mine had run levels from his own shaft into his neigh- bors' mines, and had, during a period of four years, been constantly extracting coal belonging to thirty different proprietors, he was permitted to be indicted THE KING V. ELLIS. 23 in one and the same count for stealing the coal of each of these proprietors ; and although Erie J. in summing up, advised the jury to confine their attention to one particular charge, he refused to make the prosecutor elect on which case he would rely, bu,t allowed him to give evidence in support of all the charges, as at least furnishing evidence of a felonious intent. Kegina ». Bleasdale, 2 Car- rington & Kirwan, 765. This shows that as the takings were all by means of one shaft, though from the lands of different people, it was one continuous taking, and that a continuous taking may consist of a number of separate takings. In Kegina b. Firth, 38 Law Journal, M. C. 64 ; Law Rep. 1 C. C. 172, the indict- ment charged the prisoner with stealing 1000 cubic feet of gas on a particular day. The evidence connected the prisoner with the abstraction for several years of gas from the main of the prosecutors by a pipe which had been used for the purpose of partly lighting a factory by gas without its passing through the meter. It was held that the circumstances attending the abstraction of gas by that means for the whole of that time were rightly given in evidence, and that the prosecutors were not called upon to elect to proceed on one particular act of taking, for the whole of the acts constituted one continuous taking, and did not show separate takings at different times. And it seems that if the facts had amounted to proof of separate and distinct takings from time to time, though the prosecution might have been called upon to elect upon which taking or takings they would proceed, the evidence would have been equally admissible as tend- ing to show the felonious nature of the one taking selected. This case was illustrated by cases put during the argument. Channell B. : "If a man went to one of the cellars at Heidelberg, and from a large vat of hock, which is continually filling, he drew out the wine by means of a plug and set it running, and went away for some time, and the wine continued running for some days from day to day, is not that one continuous act of taking?" Byles J. : " Take the case of pairs of boots disappearing from time to time, and evidence given of stock-taking on the 1st of April of one year, and on the next stock- taking, on the 1st of April of the subsequent year, it was found that 100 pairs of boots had disappeared, and these were all found on the prisoner's premises : could it be said that these were distinct takings, and that the pros- ecution must elect on which to proceed?" Bovill C. J.; "There may have been fifty takings, but you cannot fix any of them." Lush J. : "Take the case of a man going with a cart and horse to a granary, and taking a load of grain out, and then returning and taking another load of grain, and so on till he had cleared the granary, can you say that that is not one transaction and one taking? The means continue, and the intention is continually present." Bovill C. J. delivered the opinion: "Regina v. Bleasdale shows that a continuous taking may consist of a number of separate acts. The judgment of Erie J. in that case, brings it near this case. It is even stronger, for there evidence was given of abstractions of coal belonging to a number of different owners ; here the gas taken belonged to one proprietor ; viz. the gas company. In Regina V. Shepherd, 37 Law Journal, M. C. 45 ; Law Rep. 1 C. C. 118, the prisoner was convicted of cutting, with intent to steal, trees at one time to the value of 51. The cutting down the trees took place during a certain month, but there was no evidence to show the precise day or days on which they, or any of them, were cut down ; and the case turned upon whether trees of a sufficient value had 24 LEADING CRIMINAL CASES. been cut down at one time. It was said, if the trees were cut down so con- tinuously as to form one transaction, it was a cutting down at one time, and a conviction for cutting with intent to steal at one time, was affirmed. Here the taking was by means of a pipe inserted in the main, and it was always open at the point of junction. There was no period of time at which it was closed ; but even if that fact had not existed in this case, I should still have thought it a continuous taking. This case has been illustrated by other instances, put in the argument, of the man going to the granary with wagons and filling them with portions of the grain from time to time, as the opportunities occurred ; and of a larceny accomplished by stealing from separate rooms on two successive nights, or from rooms where workmen were employed at successive intervals, as the absence of the workmen afforded opportunity. In all these cases, upon prin- ciple, there would be one continuous taking." Where four indictments were found against a woman, which respectively charged her with poisoning her husband and two of her sons, and with attempt- ing to poison a third son, evidence was tendered on the trial of the first indict- ment, that arsenic had been taken by the three sons a few months after their father's death; that all the four parties, when taken ill, exhibited the same symptoms ; and that the woman, who had lived in the same house with her husband and children, had been in the habit of preparing their meals. It was objected, on behalf of the prisoner, that the facts proposed to be proved took place subsequently to the death of the husband,' and were, moreover, calculated to create a suspicion that the prisoner had committed three other felonies ; but the court held that the evidence was clearly admissible, for the purpose of prov- ing, first, that the husband died of arsenic, and next, that his death had not been accidental. Pollock C.B. : "I am of opinion, that evidence is receivable that the death of the three sons proceeded from the same cause ; namely, arsenic. The tendency of such evidence is to prove, and to confirm the proof already given, that the death of the husband, whether felonious or not, was occasioned by arsenic. In this view of the case, I think it wholly immaterial whether the deaths of the sons took place before or after the death of the husband. The domestic history of the family, during the period that the four deaths occurred, is also receivable in evidence to show that during that time arsenic had been taken by four members of it, with a view to enable the jury to determine whether such taking was accidental or not. The evidence is not inadmissible by reason of its having a tendency to prove or to create a suspicion of a sub- sequent felony." Kegina v. Geering, 18 Law Journal, M. C. 215. Pollock C. B. who consulted Alderson B. and TaUburd J., and they agreed with him in opinion, and therefore the point was not reserved. The prisoner was executed. See also Regina v. Garner, 3 Foster & Finlason, Willes J. and Pollock C. B. ; s. c. more fiiUy reported 4 Foster & Finlason, 346. But see Kegina v. Winslow, 8 Cox C. C. 397, Martin B. and Wilde B., which case is questioned by Mr. Greaves. 3 Russell on Crimes, 292 note. 4th ed. In Regina v. Proud, Leigh & Cave C. C. 97, the prisoner, a member of a Friendly Society, was employed to receive the weekly payments made by the members. He gave correct receipts to the members, but omitted to enter in 1 It was conceded that the evidence would have been admissible had the deaths taken place premmsly to the death of the husband. THE KING l>. ELLIS. 25 the contribution and cash books a large number of the sums so received. On being called upon for an explanation, he admitted that he had received the sums so omitted. Upon the trial, these books were tendered generally in evidence, and received ; although it was objected that the evidence ought to be confined to the three entries forming the subject of the three charges in the indictment. Held, that they were rightly admitted. And where an indictment for embezzle- ment charged three offences, and it appeared that the prisoner had made correct entries of a number of payments made by him in one week, but had cast up the whole £2 less than the correct amount ; and in another week there was a precisely similar error of the same amount, and the same in a third week, and these were the cases charged in the indictment ; Williams J. held that a series of similar errors both before and after those which formed the subject of the indictment were admissible. It was clear that the defence to the three charges would be that these were mere errors in casting up the accounts, and such de- fence naturally arising, any lawful means might be resorted to whereby such defence might be anticipated, and proved to be ill-founded ; and evidence which was admissible for such a purpose was not the less so because it tends to prove the commission of other felonies by the prisoner. Regina ». Richardson, 2 Foster & Finlason, 343 ; 8 Cox C. C. 448. And where a man committed three burg- laries in one night, and left at one of the houses property taken from another, the three felonies were considered so connected that the court heard the history of them all. Case cited by LordEUenboroughinRex v. Wylie, 1 New Reports, at p. 94 ; 2 Leach C. C. at p. 985, and post p. 28. Regina v. Stonyer, Wightman J. 3 Russell on Crimes, 282. 4th ed. And the same course was adopted where the prisoner was charged on three indictments with firing three stacks belong- ing to separate parties, .and it appeared that the stacks, being within sight of each other, were fired about the same time. \Rex v. Long, 6 Carrington & Payne, 179, Gurney B. Regina v. Cobden, 3 Foster & Finlason, 833, Bram- wellB. It is to be observed, that in all these cases the evidence must be taken to ' be subject to the qualification that the other felonies were shown to have some connection with the felony charged. Where an indictment contained counts for stealing and receiving woollen cloth, the property of A., knowing it to have been stolen, evidence of the possession of cloth stolen from another person, prior to the time of the stealing charged in the indictment, was held not admissible to prove either the larceny or the receiving. Lord Campbell C. J. : " The law of England does not allow one crime to be proved in order to raise a probability that another crime has been committed by the perpetrator of the first." Regina V. Oddy, 20 Law Journal, M. C. 198 ; 5 Cox C. C. 210 ; 2 Denison C. C. 264. See Parker ». Green, 2 Best & Smith, 299, 310, See also the note to The King V. Wylie, post pp. 32, 33. 26 leading ceiminal cases. The King v. Wylie.^ April Term 1804. Counterfeit Bank Notes and Coin — Previous and Subsequent Titter- ings — Different Denomination — Evidence of G-uilty Knowledge. To prove the guilty knowledge of an utterer of a forged bank-note, evidence may be given of his having previously uttered other forged notes, knowing them to be forged. • At the Old Bailey, in April session 1804, Sarah Wylie, other wise Evans, and Ann Haines, otherwise Foss, were tried before Mr. Justice Heath, present Baron Thompson, on an indict- ment containing eight counts, charging them, first, with forging a two -pound bank-note on the 12th March 1804 ; secondly, with feloniously offering, disposing of, and putting away a forged note ; thirdly, with forging a promissory note for the payment of money, in the form of a bank-note ; fourthly, with uttering it knowingly ; and four other counts, with intention to defraud, first, the Bank of England, and, secondly, John Hind. The two prisoners, on the 12th March 1804, went together into the shop of Mr. Hind, an ironmonger, No. 134 Whitechapel, and purchased a brass footman for four shillings, for which' Wylie offered the note in question to pay for it ; but on its being com- municated to them that it was suspected to be a bad one, they both affected great surprise, and produced a good note, and paid for the article out of it. Being, however, questioned as to where they lived, and from whom they had received the first note, they prevar- icated, and gave in not only false names, but false addresses to their residence. The note and the prisoners were therefore stopped by Mr. Hind's journeyman, who told them they must go with him to the bank, which they refused to do, and they were taken into custody on suspicion that they had offered it knowing it to be forged ; but, to make this fact more clear, the counsel for the crown offered evidence that the prisoners had, on the 13th February 1804, uttered a forged two-pound note to Mr. Jones, cheese-monger, No. 7 Cow Lane ; another on the 25th February, to Mr. Findle, of Brewer Street, Golden Square ; another on 28th ' 1 New Reports, 92 ; s. c. under the name of The King ». Whiley, 2 Leach C. C. 983. 4th ed. THE KING V. WTLIE. 27 February, to Mr. Corder, grocer, Broad Street, Bloomsbury ; and that on being asked, at each place, for their names and places of abode, they gave false names and false addresses. Knapp and Alley, for the prisoners, objected to this evidence. They contended that the facts now offered in evidence would, if true, constitute three distinct and independent charges of felony ; and that it was a settled rule of law, that no testimony could be given of any fact not relevant to or connected with the specific charge in the indictment, which was the only charge of which the prisoners had notice, or against which they were in any way pre- pared to defend themselves. That in indictments of burglary or robbery, the court never suffered other burglaries or other rob- beries, previously committed by the same person, to be given in evidence for the purpose of showing that the act charged to have been done, was done by the prisoner intentionally and with a guilty mind. Even upon an indictment analogous to the present, for uttering bad money, the proof is always exclusively confined to the particular uttering charged in the indictment; and that the offences of knowingly uttering counterfeit coin and forged bank- notes were so similar to each other, that no reason could be assigned why any distinction should be made between them as to the rules of law, or why an established principle should prevail in the one case and not in the other ; a departure from which would manifestly tend, by introducing transactions foreign to the charge, to confound and perplex prisoners in their defence ; and that for this reason it had always been usual to quash an indictment for a misdemeanor, if there were several misdemeanors included in it. Q-arrow, Melding, Cfiles, and Bosanquet, for the Crown, were stopped by the court. Lord Ellenborough C. J. Certainly the same rules of law must prevail, whether the prosecution be at the instance of the Bank of England, or be instituted by private persons ; but the point now made has been already discussed and settled by the twelve Judges in Tattershall's Case, before Mr. Justice Chambre, at Lancaster, in the year 1801, and reserved by him for the opinion of the Judges. It was an indictment for forging and knowingly tittering a bank- note, and the question was, whether the prosecutor, in order to show that the utterer knew it to be forged, might give the conduct of the prisoner in evidence for the purpose of proving his knowl- edge of the forgery; that is, whether from the conduct of the prisoner on one occasion, the jury might not infer his knowledge 28 LEADING CRIMINAL CASES. Oil another ; and the Judges were of opinion that the court was authorized by law to receive such evidence. The observations respecting prisoners being taken by surprise, and coming unpre- pared to answer or defend themselves against extrinsic facts, is not correct. The indictment alleges that the prisoner uttered this note knowing it to be forged, and they must know that, without the reception of other evidence than that which the mere circum- stances of the transaction itself would furnish, it would be impos- sible to ascertain whether they uttered it with a guilty knowledge of its having been forged, or whether it was uttered under circum- stances which showed their minds to be free from that guilt. I remember the case of a person who came to Manchester with a large parcel of forged notes ; and the circumstances of his whole conduct afforded strong evidence of the intent and purpose with which he went there ; and a question was made, whether these circumstances might be given in evidence ; for it was said that this would be trying the prisoner for other utterings than those charged in the indictment; but if several and distinct offences do so intermix and blend themsclveis with each other, the detail of the party's whole conduct must be pursued. There is a case, where a man committed three burglaries in one night, and stole a shirt at one place and left it at another ; and they were all so connected that the court heard the history of the three different burglaries.^ True it is, that the more detached the previous utterings are, in point of time, the less relation they will bear to the particular uttering stated in the indictment ; and when they are so distant, the only question that can be made is, whether they are suf&cient to warrant the jury in making any inference from them as to the guilty knowledge of the prisoner; but it would not render the evidence inadmissible. Circumstances of this kind may produce such strong evidence as to leave no doubt as to the prisoner's ' So where three burglaries were committed in the town of Uttoxeter, one at Keeling's, and another at Bladon's, between twelve and three o'clock of the same night, and at Bladon's a crowbar was found, which fitted some marks on a chest broken open at Keeling's, and which was proved to have been in the pos- , session of the prisoners previously to the night in question ; Wightman J. on the authority of this case, allowed evidence to be given of the finding of the crowbar at Bladon's, and also of the finding goods stolen the same night from Bladon's, in the possession of the prisoners, as such evidence tended to show that the prisoners had been at Bladon's, and that they might have left the crowbar there. Regina v. Stonyer, 3 Russell on Crimes, 282. 4th ed. See also Regina V. Cobden, 3 Foster & Finlason, 833. THE KING V. WYLIB. 29 knowledge that these notes were forged. I am therefore of opinion, under tlie authority of the cases I have stated, that it is competent for the court to receive evidence of other transactions, though they amount to distinct offences, and of the demeanor of the prisoner on other occasions, from wliicli it may be fairly inferred that he was conscious of his guilt while he was doing the act charged upon him in the indictment ; and if this species of evidence do not warrant such an inference, it will be laid out of the case. Heath J. The case of Rex v. Tattershall has already decided this question. No person can be punished for an offence until he has been regularly charged with and convicted of it. The charge in this case puts in proof the knowledge of the prisoner ; and as that knowledge cannot be collected from the circumstances of the transaction itself, it must necessarily be collected from other facts and circumstances. I remember a case where several persons were indicted for a conspiracy to raise wages, and on the trial evidence was received of circumstances, which, taken by them- selves, amounted to substantive felonies ; but as these circum- stances were material to the point in issue, they were admitted in evidence. Thompson B. I am of the same opinion. The case of Rex v.. Tattershall is exactly in point. As to the case put by the prisoner's counsel, of uttering bad money, I by no means agree in their con- clusion, that the prosecutor cannot give evidence of another utter- ing on the same day to prove the guilty knowledge. Such other uttering cannot be- punished until it has become the subject of a distinct and separate charge ; but it affords strong evidence of the knowledge of the prisoner that the money he uttered was bad. If a man utter a bad shilling, and fifty other bad shillings are found upon him, this would bring him within the description of a common utterer ; but if the indictment do not contain that charge, yet these circumstances may be given in evidence* on any other charge of uttering, to show that he uttered the money with a knowledge of its being bad. The court, therefore, received the evidence objected to, and the prisoners were both found guilty. The general rule of law undoubtedly is, that upon the trial of a single issue in a criminal cause, no other distinct acts of the defendant can be given in evidence, especially if these acts amount to another offence. Commonwealth v. Eastman, 1 Gushing, 216. Commonwealth v. Miller, 3 Cushing, 244, 251. Common- 30 LEADING CRIMINAL CASES. wealth V. Tuckerman, 10 Gray, 173, 200. Commonwealth v. Shepard, 1 Allen, 675, 681. " It is a dangerous species of evidence," said Bigelow C. J. "not only because it requires a defendant to meet and explain other acts than those charged against him, and for which he is on trial, but also because it may lead the jury to violate the great principle, that a party is not to be convicted of one crime by proof that he is guilty of another. For this reason, it is essential to the righfs of the accused that, when such evidence is admitted, it should be carefully limited and guarded by instructions to the jury, so that its operation and effect may be confined to the single legitimate purpose for which it is competent." This rule has some limitations and exceptions, and we propose to examine how far other criminal acts can be given in evidence upon the trial of a particular criminal issue. The principle of the case in the text has been followed with ^ some limitations, so far as the reasoning of that decision is concerned. In Rex ' V. Hough, Russell & Ryan C. C. 120, it was adjudged that other forged bills on the same house found on the prisoner at the time of his apprehension were properly admitted as evidence of his (guilty) knowledge in a trial for forgery of a biU of exchange. No notice is taken ofWylie's Case, decided three years before, and Rooke J. doubted, Mansfield C. J. and Heath J. being absent. Rex V. Ball, Russell & Ryan C. C. 132, and 1 Campbell, 324, by a majority opinion, decides that similar forged bills of the Bank of England, which, prior to the act on trial, had been in the prisoner's possession, and another uttering of like notes, were admissible for this purpose ; Chambre J. dissented, because it was evidence of facts wholly distinct from the subject of inquiry, which the prisoner could not be prepared to answer or explain. In Sunderland's Case, 1 Lewin C. C. 102, this principle wasj extended to giving in evidence other forged notes of private bankers, on the trial of an indictment for forging Bank of Ireland notes. In this case the point was not taken. The same was held in Hodgson's Case, 1 Lewin C. C. 102, although the notes offered were the subject of another indictment against the prisoner ; HuUock J. hesitante. This was also adjudged in Kirkwood's Case, 1 Lewin C. C. 103 ; 1 Moody C. C. 304. It must now be taken to be fully settled that if the evidence is otherwise competent it will not be rejected ; because the prisoner is under indictment for the acts offered in proof. Kirkwood's Case, 1 Lewin C. C. 103, Littledale J. Regina v. Aston, 2 Russell on Crimes, 841. 4th ed. Commonwealth v. Stearns, 10 Metcalf, 266. 1 Taylor Ev. § 822. 6th ed. 3 Russell on Crimes, 286. 4th ed. Regina ». Lewis, Archbold Crim. PI. (14th ed.) 486, per Lord Denman C. J. who observed that " he could not conceive how the [relevancy of the fact to the charge could be affected by its being the subject of another charge." As proof of guilty knowledge. Rex v. Balls, 1 Moody C. C. 470, has extended the evidence to the possession of plates or forged instruments of any kind, at any time previous to the act prosecuted. There, on a trial for uttering a forged cash note of the kingdom of Poland, on the 1st September 1835, evi- dence was given that the prisoner had agreed to make a thousand Austrian notes, of fifty florins each, for three shillings each note. And also, that in September 1834, the prisoner caused a plate to be engraved, and five hnndred impressions of Polish notes, other and different from the one uttered. And, upon this point reserved, the Judges held the evidence admissible. On an indictment for knowingly uttering a forged document, or a, coun- THE KING V. WTLIE. 31 terfelt bank-note, or counterfeit coin, evidence of the possession, or of the prior or subsequent (Regina v. Foster, Dearsly C. C. 456 ') utterance, either to the prosecutor himself or to other persons, of other false documents or notes, or bad money, though of a different description,' Rex v. Harris, 7 Carrington & Payne, 429, by all the Judges ; Regina v. Foster, Dearsly C. C. 456, and though themselves the subjects of separate indictments, is admissible as material to the question of guilty knowledge or intent. Regina v. Nisbett, 6 Cox C. C. S20, Williams J. Regina v. Salt, 3 Foster & Finlason, 834, Williams, J. In Com- monwealth V. Hall, 4 Allen, 305, evidence was held to be admissible for the purpose of proving guilty knowledge that the defendant swallowed a counterfeit bank-bill, which he had in his possession at the time of his arrest the morning after the commission of the utterings alleged in the indictment ; the bill being similar to those passed by him the evening before. Evidence was also admitted that the defendant had been employed in the business of printing parts of genuine bank- bUls, as tending to show that the bills which he passed were counterfeit. And in a very recent case the law was broadly laid down, that " other substantive felonies which have a tendency to establish the scienter may undoubtedly be proved for that purpose." Regina «. Weeks, Leigh & Cave C. C. 18, 21 (1861). And see Bottomley v. The United States, 1 Story, 143 ; Rex v. Fuller & Robin- son, RusseU & Ryan C. C. 808; Regina v. Jarvis, Dearsly C. C. 562. The American courts, both in practice and by authority, have adopted this exception in the law of evidence. The State v. Antonio, 2 Constitutional R. 776. The United States v. Roudenbush, Baldwin, 514. The State v. McAlister, 24 Maine, 139. Hendrick's Case, 6 Leigh, 707. Commonwealth v. Stearns, 10 Metcalf, 256. Commonwealth v. Bigelow, 8 Metcalf, 235. Commonwealth v. Stone, 4 Metcalf, 43, 47, extends this kind of evidence to proof of the scienter upon an indictment for falsely representing the bill of an insolvent bank as good, and thereby obtaining property with intent to defraud. The court there say, the case is strictly analogous on the rule in relation to proof of scienter on a charge of passing counterfeit bills, or coins, which is well established here and in England. , Li these cases, it is essential to produce, at the trial, the instruments offered in evidence of guilty knowledge, or to show a sufficient reason for their non-pro- duction, and to prove distinctly that they were forged or counterfeit. Rex v, Millard, Russell & Ryan C. C. 245 ; Commonwealth v. Bigelow, 8 Metcalf, 235. And though the prosecutor may prove the uttering of other forged notes by the prisoner, and his conduct at the time of uttering them, he cannot proceed to show what the prisoner said or did at another time, with respect to such uttering ; for these are collateral facts, too remote for any reasonable presumption of guilt 1 The difference in the denomination of the coin goes to the weight of the evidence, but does not affect its admissibility. This case disposes of a doubt raised in Bex v. Taverner, Carrington's Supplement, 195 ; 4 Carrington & Payne, 413 note j and in Eex v. Smith, 4 Carrington & Payne, 411, as to whether evidence of giAsequent utterings would be admissi- ble, if the notes or coin were of a different description. 2 In Commonwealth s. Price, 10 Gray, 472, which was an indictment for having a counterfeit bank-bill with intent to pass it, evidence was admitted that the defendant, eight days afterwards, had in his possession, in another State, other counterfeit bills in no respect similar to those set out in the indictment. 32 LEADING CRIMINAL CASES. to be founded upon them, and such as the prisoner cannot by any possibility be prepared to contradict. Kex v. Phillips, 1 Lewin C. C. 105, Bayley J. Kegina v. Cooke, 8 Carrington & Payne, 586, Patteson J. Contra, Rex v. Forbes, 7 Carrington & Payne, 224, Coleridge J. See Regina v. Brown, 2 Foster & Finlason, 669. On an indictment for having counterfeit bank-bills, ■with intent to pass them, evidence is clearly competent of previous declarations of the defendant, showing that he was then engaged in the business of passing counterfeit money ; but the contents of a letter, containing counterfeit money, received by him at the post-office, and immediately taken from his possession before he had opened it, cannot be proved. Commonwealth v. Edgerly, 10 Allen, 184. The laxity of evidence, which prevails in charges of uttering, and of one or two offences of a cognate character, e. g., obtaining money by falsely pretend- ing to a pawnbroker that a spurious chain was silver, Regina v. Roebuck, Dearsly & Bell C. C. 24, 26,' is not allowed to the same extent in other crimi- nal charges,'' even though the collateral facts may have some tendency to establish the guilty knowledge or intent, which constitutes a necessary ingredient of the crime. For instance, on an indictment against a thief or a receiver, the fact that the prisoner has at various times received and pledged other property, stolen from different persons, cannot be given in evidence, Regina v. Oddy, 2 Denison C. C. 264 ; though if it can be shown that the chattels so received and pledged have been stolen from the prosecutor, the evidence will be admissible, as raising some presumption of guilty knowledge, with respect to the articles men- tioned in the indictment. Regina v. Dunn, 1 Moody C. C. 146. Regina v. NichoUs, 1 Foster & Finlason, 61. Another apparent exception to the rule, that one felony cannot be inquii;ed of upon the trial of another, is in proof of criminal intent. This stands on nearly the same ground as proof of guilty knowledge. It will be found, however, that in all the cases, the acts offered in evidence to prove the intent were parts of the subject-matter with the fact on trial, and thus forming links more or less closely connected of a chain of circumstances. Thus, in Commonwealth v. Tuckerman, 10 Gray, 173, on an indictment for embezzlement, other previous acts of a similar character, enumerated with the one charged in the indictment in a paper drawn up by the defendant as a statement of all sums taken by him, were held to be admissible in evidence to show the intent with which the act charged was com- mitted. Regina v. Dossett, 2 Cox C. C. 243; 2 Carrington & Kirwan, 306. Commonwealth v. Turner, 3 Metcalf, 19. This is the view taken in Regina v. Bleasdale, 2 Carrington & Kirwan, 766, ante pp. 22, 23. In Regina v. Butler, 2 Carrington & Kirwan, 221, evidence of what the prisoner said about money of the prosecutor, found in his possession at the time of his arrest, other than that for which he was indicted, was held by Piatt B. not to be competent, and the case may be thus reconciled. It was an admission by the prisoner of another 1 It is to be observed that the conviction in this case was affirmed without any reference to the admission of this evidence. 2 The doctrine does not extend to ordinary indictments for obtaining money by false pre- tences. Kegina ti. Holt, Bell C. C. 280; 8 Cox C. C. 411. Still it has been applied to cases of arson with intent to defraud insurance companies, Eegina v. Gray, 4 Foster & Finlason 1102, Willes J. and Martin B. Sed quaere. THE KING V. WTLIE, 33 separate felony. So in Robinson's Case, 2 Leach C. C. (4tli ed.) 749 ; Kex u. Voke, Russell & Ryan C. C. 531; Regina v. Taylor, 5 Cox C. C. 138; Rex V. Ellis, 9 Bowling & Ryland, 174, ante p. 18. In offences of which the gist is that the defendant has sustained a character as a common utterer of counterfeit coin, common barrator, common seller of spir- ituous liquors, or where a combination or conspiracy is alleged, great latitude is allowed in giving in evidence various acts of the defendant. Rex v. Roberts, 1 Campbell, 400. Commonwealth v. Turner, 3 Metcalf, 19. Commonwealth v. Eastman, 1 Cushing, 189. It is usual, however, to lay such offences, barratry and the like, with a continuando, and if so laid evidence cannot be given with- out the time, save when it might be upon a trial of a single act. Commonwealth ». Elwell, 1 Gray, 463. Commonwealth v. Briggs, 11 Metcalf, 573. A case has been decided in Massachusetts, Commonwealth v. Merriam, 14 Pickering, 518, which cannot be brought within the reasoning of any of the ex- ceptions above stated, and which is in direct conflict with the general rule which has been recognized by that court in the cases, Commonwealth v. Turner, 3 Met- calf, 19 ; Commonwealth v. Wilson, 2 Cushing, 590. Commonwealth v. Mer- riam seems to have been but little considered by the court, is unsupported by authority, and the reasoning is but little satisfactory.' It is in direct contrast with the manly and logical caution of Lord Campbell C. J. in the late case of Regina v. Oddy, 20 Law Journal, M. C. 198 ; 5 Cox C. C. 210, where he says : " I am of opinion that the evidence objected to was as admissible under the first two counts as it was under the third, for it was evidence which went to show that the prisoner was a very bad man, and a likely pe»son to commit such offences as those charged in the indictment. But the law of England does not allow one crime to be proved in order to raise a probability that another crime has been committed by the perpetrator of the first. The evidence which was received in the case does not tend to show that the prisoner knew that these par- ticular goods were stolen at the time that he received them. The rule which has prevailed in the case of indictments for uttering forged bank-notes, of allow- ing evidence to be given of the uttering of other forged notes to different persons, has gone to great lengths, and I should be unwilling to see that rule applied generally in the administration of the criminal law. We are all of opin- ion that the evidence admitted in this case with regard to the scienter, was improperly admitted, as it afforded no ground for any legitimate inference in respect of it. The conviction, therefore, must be quashed." See also The 1 In this case a party was tried upon an indictment for the crime of adultery. Evidence of three instances of improper familiarity between the prisoner and his supposed paramour, one of which occurred within a fortnight and the others within a year next preceding the par- ticular act complained of, was held to be admissible ; and this manifestly for the purpose of showing the intent of the parties when they met in secret, so that no direct evidence of their conduct there could be expected to be produced. And in delivering the opinion of the court, it was said by Putnam J.: " Evidence should be excluded which tends only to the proof of ' collateral facts. But it should be admitted if it has a natural tendency to establish the fact in controversy." To which he immediately adds: "It was argued that the defendant was not to be put upon his trial for every act of his life, but for a particular offence. Be it so ; if the evidence which was received has a natural tendency to corroborate the direct evidence in the case, it would seem to be clearly admissible." See Commonwealth v. Tuokerman, 10 Gray, at p. 200. VOL. II. 3 34 LEADING CBIMINAL CASES. State V. Barton, 18 Ohio, 291 ; The State v. Wallace, 9 New Hampshire, 515, 617. In Eegina v. Green, 3 Carrington & Kirwan, 209, it is said by Cress- weU J. that this language in Eegina v. Oddy, supra, is not to be extended to other cases than utterings. See ante p. 25. The King v. Hollingbbrrt.^ Trinity Term 1825. Proof of so much of an Indictment as Constitutes a Crime Punish- able hy Law — Divisible Averments. Indictment for a conspiracy to extort money. One count averred that defendants, in pursuance of a conspiracy to extort money from the prosecutor, falsdy exhibited certain indictments against him ; another count averred that defendants, in pursu- ance of the lilse conspiracy, offered to suppress an indictment pending against the prosecutor if he would give them money for so doing. Tlie jury found the defend- ants guilty, generally, but found, specially, that the indictments, preferred by them against the prosecutor, were not false: — Edd, that the averment in the former count was immaterial, and that the latter count would support the conviction. Held also, that a conspiracy to extort money is per se an offence at common law, and need not he charged to be attempted by unlawful means. Hdd also, that where, upon the trial of an indictment for a misdemeanor, a witness examined before the grand jury was not examined at the trial, and a witness not examined before the grand jury was examined at the trial, this was not such a sur- prise upon the defendants as entitled them to a new trial. This was an indictment against the defendants for a conspiracy. The first count stated that defendants, intending unlawfully, fraudulently and deceitfully, to extort, obtain, and procure of and from the prosecutor a large sum of money for their use, on &c. at &c. did corruptly and unlawfully conspire together to extort, ob- tain, and procure of and from the prosecutor a large sum of money for their use, and in order to extort, obtain, and procure the same, did corruptly and unlawfully conspire to indict the prosecutor for having kept a common gaming house, &c. That defendants, in furtherance of their conspiracy, afterwards to wit on &c. at &c. at the quarter sessions, &c. did falsely exhibit,' and caused to be exhibited, a certain bill of indictment against the prosecutor, and afterwards, in pursuance, &c. did corruptly, wilfully, and wickedly procure and cause the said bill of indictment to be returned a true ' 6 Dowling & Eyland, 345 ; 4 Barnewall & Cresswell, 329. THE KING V. HOLLINGBBRRY. 35 bill. That defendants, in further pursuance, &c. afterwards to wit, on &c. at &c. in the Court of King's Bench, did falsely ex- hibit, and cause to be exhibited, a certain bill of indictment against the prosecutor, and did afterwards, in pursuance, &c. corruptly, wilfully and wickedly procure and cause the said bill of indict- ment to be returned a true bill. That defendants, in pursuance, &c. afterwards to wit on &c. at &c. did unlawfully and wilfully endeavor to obtain and procure of and from the prosecutor a large sum of money as and for a consideration or recompense to them for compromising and suppressing the said indictments, and giv- ing up the further prosecution thereof. Second count, that defend- ants preferred an indictment at the quarter sessions against the prosecutor for keeping a common gaming-house, which being re- moved into the Court of King's Bench and depending there, defend- ants did unlawfully and wickedly conspire to extort, &c. of and from the prosecutor a large sum of money, and in pursuance, &c. did unlawfully propose to the prosecutor to suppress the indictment, and to withhold certain evidence which they had and could bring forward to prove that the prosecutor had unlawfully kept a com- mon gaming-house, if he would give and pay to them a large sum of money for their use. Third count, that defendants, wickedly intending to extort, Kussell & Ryan C. C. 450. 44 LEADING CRIMINAL CASES. their return from school; but on the evening in question, the closing the outer shutter was delayed, in consequence of the children returning later than usual from school. The question was, whether the pushing down of the upper sash by the prisoners, in the manner stated, amounted to a suf&cient breaking. In Easter term 1821 the Judges met and considered this case. They were unanimously of opinion, that the pulling down of the sash was a sufficient breaking, and the prisoner was rightly con- victed. Rex v. RussBLL.i Easter Term 1833. Burglary — Actual and Constructive Breaking. Lifting the flap of a cellar usually kept down by its own weight, is a sufficient break- ing for the purpose of burglary. The prisoner, George Russell, was tried and convicted before Mr. Justice Littlbdale, at the Old Bailey sessions in May 1833 (present also Baron Bolland and Mr. Justice Bosanquet) for burglary, in breaking and entering the dwelling-house of James Grady, in the parish of St. George, Hanover Square, on the night of the 21st of April last, with intent to steal the goods and chattels in the dwelling-house. The prisoner got into the house between the hours of eleven o'clock at night and one in the morning. The jury found the intent to steal ; but there was a question, whether there was such a breaking as constituted that ingredient of burglary. There is a cellar under the house which communicated with the other part of it by an inner staircase. The entrance to the cellar from the outside was by means of a flap, which let down ; the flap was made of two-inch stuff, but that was reduced in thick- ness by the wood being worked up. The prisoner got into the cellar by raising up the flap door. The flap door had been from time to time fastened with nails, when the cellar was not wanted, to keep coals in. ' 1 Moody C. C. 377. BEX V. HAINES. EEZ V. EUSSELL. 45 A good deal of evidence was given, as to whether, on the night in question, the door was nailed down, and the learned judge desired the jury to find whether it was so or not. They found that it was not nailed down that night. The case very much resembles Callan's Case, in Russell & Ryan C. C. 157, and 2 Russell on Crimes, 5, in which the Judges were equally divided in opinion ; vide also the Case of William Brown, 2 East P. C. 48T. In Easter term 1833 the Judges met and considered this case. They were of opinion that there was a sufficient breaking, and that the conviction was right. There must be a breaking of the house either, (1) actual ; or (2) eonstrue- tive. There must be a breach of the house made or produced by the act of the felons, and this either by actual force or construction of law. I. An actual breaking for the purposes of burglary is to be distinguished from a breaking in law ; for, as Hale says (1 P. C. 661) every one that enters into another's house against his will, or to commit a felony, though the doors be open, doth in law break the house. And formerly, he goes on to say, and even in the remembrance of some who were living in his own time. Sir Nicholas Hide C. J. did hold that a breaking in law was sufficient to make a burglary ; as if a man entered into the house by the doors, open in the night, and stole goods, yet this was burglary ; but the law is, he concludes, that a bare breaking in law, namely, an entry by the doors or windows open, is not sufficient to make burg- lary without an actual (or constructive) breaking. If the door of a mansion- house stand open, and the thief enter into the house with a purpose to steal, this is a breaking of the house in law, and yet no burglary. Kelyng, 70. So it is if the window of the house be open, and a thief, with a hook or other engine, draweth out some of the goods of the owner, this is no burglary, because there is no actual breaking of the house. So also if one enter by a door or window, open in the daytime, and He there till night, and then rob and go away without breaking any part of the house, he is not guilty of burglary. 1 Hawkins P. C. ch. 38, § 4. But if, having entered the house at night by an open door or window, he turns the key of a door of a chamber, or unlatcheth a chamber door, with intent to commit felony, he is guilty of burglary. 1 Hale P. C. 663. The State «. Wilson, Coxe, 439. And so he would be, if, having entered by an open door or window in the daytime, he at night were to unfasten an inner door for the purpose of committing felony. Or if being lawfully within the house, he did the same. Where a servant opened his lady's chamber door, which was fastened by a spring lock, for the purpose of committing a rape upon her, he was held guilty of burglary. Gray's Case, 2 East P. C. 488 ; 1 Strange, 481. So also where the prisoner entered at a back door of the house of W. Hughes, at Newington, which had been left open by the family, and afterwards broke open an inner door, and stole goods out of the room, and then unbolted the street door on the inside, and went out. Johnson's Case, 2 East P. C. 488. This was held 46 LEADING CRIMINAL CASES. burglary by all the Judges. There was, however, a clear burglary upon the statute in this case, the prisoner breaking out of the dwelling-house. " The servant lay in one part of the house, and the master in another, and the stair- foot door of the master's chamber was latched ; the servant came in the night, and unlatched the stair-foot door, and went up into the master's chamber, in- tending to kill him; this was held burglary." 1 Hale P. C. 554. And where the prisoner burst open an inner door in the inside of a house, and so entered a shop in order to steal money from the till, it was held that this was a sufficient breaking to support an indictment for house-breaking. Regina v. Wenmouth, 8 Cox C. C. 848, Keating J. So where the prisoners went into the house of the cook at Sergeants' Inn, in Fleet Street, to eat, and, taking their opportunity, slipped up stairs, picked open the lock of a chamber door, broke open a chest and stole plate, it was agreed that the picking open the lock of the chamber door ousted them of their clergy, though the breaking open the chest would not have done so." Anonymous, 1 Hale P. C. 524. " If A. be a lodger at an inn, and he goes up to his chamber to bed, and the chamberlain pulls to the door and latcheth it, or A. himself locks it, and in the night he riseth, openeth his chamber door, steals goods, and goeth away, it may be a question, says Hale, whether this be burglary ; it seems not, because he had a special interest in his chamber, and so the opening of his own door was no breaking of the innkeeper's house ; but if he had opened the chamber of B., a lodger in the inn, to steal his goods, this had been burglary." 1 Hale P. C. 554. But if the lodger had in the first case opened the door of the inn, as he went out, he would have been guilty of breaking out under the statute. Regina V. Wheeldon, 8 Carrington & Payne, 747, Erskine J., post jj. 64. From what has been said, it may be inferred that some violence is necessary to constitute the actual breaking of a house, though very slight violence is necessary. If one unlatches a door, opens a window when fastened, or raises it when shut, but being without any fastening, puts back a lock or a bolt, or picks a lock with a false key, takes a pane of glass out of the window, either by taking out the nails or other fastening, or by drawing or bending them back, or by unloosing any other fastening, either to doors or windows, which the owner has provided, all these are burglarious breakings. 2 Russell on Crimes, 2, 3. 4th ed. But where a pane of glass had been cut or cracked for a month, but there was no opening or hole whatever, as every portion of the glass remained exactly in its place, and the prisoner was both seen and heard to put his hand through the glass ; this was held a sufficient breaking. Rex v. Bird, 9 Carrington & Payne, 44, Bosanquet J. So where a window, opening upon hinges, is fastened by a wedge, so that pushing against it will open it, if such window be forced open by pushing against it, there will be a sufficient breaking. The prisoner was tried and convictfed before Mr. Justice Bayley, at the York Spring assizes 1818, of burglary ; but, upon a doubt as to the question of breaking into the house, the learned judge saved the point for the consideration of the Judges. The prisoner entered the house by lifting up a large iron grating, which was placed over the prosecutor's cellar, and opening a window in a passage leading from that cellar. The cellar opened into a passage which led into the house, and BEX V. HAINES. REX V. RUSSELL. 47 the window was within the wall of the house ; the cellar was beyond the walls. The grating weighed eight stone, and was usually fastened inside by a large iron chain ; but it was not so fastened at the time the prisoner entered. The grating was for the admission of light only, not of goods. The window opened upon hinges, and was fastened by two nails, which acted as wedges ; but, not- withstanding, these nails would open by pushing. It was argued that the lifting up the grating was no breaking, because it was kept down by its own weight only, and that the forcing open the window was no breaking, because it was done by pushing only. The learned judge thought the forcing of the window was a breaking, but he reserved the point for the consideration of the Judges. In Easter term 1818 the Judges met ; they held the couTiction right, being of opinion that the forcing the window in the manner described was a sufficient breaking into the dwelling-house. Rex v. Hall, Russell & Ryan C. C. 355. If a window be partly open, but not sufficiently so as to admit a person, the raising it higher so as to admit any one, is not a breaking. Rex v. Smith, 1 Moody C. C. 178. Rex v. Hyams, 7 Carrington & Payne, 441, per Park J. and Coleridge J. Where a glass window was broken, and the window opened with the hand, but the shutters in the inside were not broken, this was ruled burglary by Ward C. B., Powis J. and Tracy J. and the Re- corder. But they thought that the extremity of the law ; and on a subsequent conference. Holt C. J. and Powell J. doubting and inclining to another opin- ion, no judgment was given. Roberts's Case, 2 East P. C. 487. In Commonwealth v. Stephenson, 8 Pickering, 354, the evidence as to break- ing was, that in the evening of May 22, the witness fastened the outer door of the dwelling-house by turning a button down upon the latch, and that about day- break in the morntfig, he found the door open, and also that the network of the buttery window had been cut away and torn down. The netting was made of double twine, and was fastened by nailing it on each side, and at the top and bottom of the window, for the purpose of letting in the air, and keeping out cats and other smaller animals. Within the network there was a glass window, which had not been shut. Putnam J. instructed the jury, that if the defendants broke, cut, or tore away the net so fastened, it was in law a breaking of the dwelling-house. The defendants being found guilty, moved for a new trial because the foregoing instruction was wrong. Parker C. J. delivered the opin- ion of the court: " The question in this case is, whether there was a breaking or not. The lifting a latch and opening the door, though not bolted or locked ; the shoving up a window, though not fastened ; the getting down a chimney, and various other acts done to effect an entry, are held to be a breaking. See The State v. Wilson, Coxe, 439 ; Commonwealth v. Steward, 7 Dane's Ab. 136. The offence consists in violating the common security of a dwelling- house, in the night-time, for the purpose of committing a felony. It makes no difference, whether the door is barred and bolted, or the window secured, or not ; it is enough that the house is secured in the ordinary way ; so that by the carelessness of the owner in leaving the door or window open, the party accused of burglary be not tempted to enter. Shutting th^ window-blinds and leaving the windows open for air, is a common mode of closing a house in the warm season ; if the blinds are forced, it is a breaking. The objection is, that the lattice-work of the dairy window was of twine only. Suppose it were of wire, 18 LEADING CRIMINAL CASES. ir thin slats of wood, would there be any difference? This network was lailed down on all sides ; it was torn away by the defendants, and they entered he breach. This is quite sufficient to constitute a burglarious breaking and intry. But where the only covering to an open space in a dwelling-house was a iloak hung upon two nails at the top, and loose at the bottom, and it was emoved from one of the nails, it was queried whether that was a sufficient ireaking. Hunter v. The Commonwealth, 7 Grattan, 641. If the window of a house be open, or if there be an aperture in the wall, oof, or cellar, to admit light or air, through which a thief enters in the night to lommit felony, this is njo burglarious breaking. Rex v. Lewis, 2 Carrington & 'ayne, 628. Rex v. Spriggs, 1 Moody & Robinson, 367. The State v. Boon, 3 Iredell, 244. In Rex v. Spriggs, Bosanquet" J. said : " If a man choose to eave an opening in the wall or roof of his house, instead of a fastened window, le must take the consequences. The entry through such an opening is not a ireaking.'' But where a square of glass in a kitchen window, through which he prisoners entered, had been previously broken by accident, and half of it ?as out when the prosecutor left the house, and the aperture was sufficient to dmit a hand, but not to enable a person to put his arm in, so as to undo the istening of the casement, and one of the prisoners thrust his arm through be aperture, thereby breaking out the residue of the square, and having so done, e removed the fastening of the casement ; Mr. Justice Alderson and Mr. Justice 'atteson, entertaining a doubt from the difficulty they had to distinguish satis- ictorily the case of enlarging a hole already existing, from the enlarging an perture by lifting up the sash of a window (as in Rex v. Hyams, ante p. 47) ubmitted the case to the Judges, who were unanimously of opinion that this was sufficient breaking, not by breaking the residue of the pane, but by unfastening nd opening the window. Rex v. Robinson, 1 Moody C. C. 327. And it has ince been laid down as clear law that a person, who, on finding a hole in a oor, or pane of glass, puts his hand in through the hole to remove the fastening, f the door or window, and so gains admittance into the preimises, is guilty of a reaking into the house. Ryan v. Shilcock, 7 Exchequer, 72, per Curiam. But if there be in the roof or cellar, or wall of a house, an aperture large nough to admit a person, which has a fastening covering the aperture by its wn weight, but without any lock, bolt, or bar, or with any bolt, lock, or bar, but nfastened at the time ; this, after some fluctuations of opinion, has been held to e burglaiy. On an indictment for burglary in the house of G. Aldridge, it ppeared that the place which the prisoners entered was a mill under the same oof, and within the same curtilage as the dwelling-house. Through the mill was n open entrance or gateway, capable of admitting wagons, and intended for the urpose of loading them more easily with flour, through a large aperture or atch communicating with the floor above. This aperture was closed by foldino' oors, with hinges, which fell over it, and remained closed by their own weight, ut without any inferior fastening ; so that those without, under the gateway, 3uld push them open at.their pleasure by a moderate exertion of streno-th. a this manner the prisoner was proved to have entered the mill in the night, •ith the evident intention of stealing the flour ; and Buller J. held this a suffi- ent breaking to constitute the offence. Brown's Case, 2 East P. C. 487. REX V. HAINES. REX V. RUSSELL. 49 The prisoner was tried before Lord Ellenborough, at the Old Bailey Sessions, November 1809, on an indictment charging him with having stolen three glass bottles and five pints of wine, the property of Dennis Malony, in his dwelling- house, and with having, after committing such felony, burglariously broken out of the said dwelling-house. The only question in the case (for the larceny, time of night, and all the other circumstances necessary to be proved in such a case were clearly made out), was, whether there was a sufficient breaking to consti- tute the crime of burglary. The wine was stolen from a bin in the cellar belong- ing to the dwelling-house of Malony the, prosecutor, who kept a public-house, and it had been removed by the prisoner from thence to the flap by which the cellar was closed on its outside next to the street. The flap had bolts belonging to it by which it might have been bolted within, but whether it was so bolted on the night of the burglary did not appear ; but it was clearly proved that the flap was down. It did not appear whether the prisoner had entered by the flap of the cellar or not, as a door which communicated with the cellar in another direc- tion, and which the prosecutor had left locked, was found broken open. The probability therefore was, that the prisoner had entered that way ; but if he had entered by raising up the flap, it would (unless prevented) have closed after him by its own weight, and in order to get out after it had so closed, it would have required the. degree of force necessary to lift up such a flap to be applied to it. The flap was a large one, being made to cover the opening of a cellar through which the liquors, consumed in the public-house, were usually let down into the cellar. The prisoner, when first discovered, had his head and shoulders out of the flap of the cellar, and upon being seized, made a spring and got out and ran away; he was immediately pursued, caught and brought back, and the flap, through which he had got, was found fallen down and closgd. Upon this evi- dence the jury found him guilty ; but Lord EUenbprough reserved the question, as to the sufficiency of the breaking out in this case to constitute burglary, for the consideration of the Judges. ' In Michaelmas term 1809, all the Judges met, when Lord Ellenborough C. J., Mansfield C. J., Heath J., Grose J., Chambre J. and Wood B. thought this was a sufficient breaking, because the weight was intended as a security, this not being a common entrance ; but the other Judges, namely, Macdonald C. B., Bayley J., Graham B., Le Blanc J., Lawrence J. and Thomson B. thought the conviction wrong. Rex v. Callan, Russell & Ryan C. C. 167. It has been held, that getting out of a house by pushing up a trap-door, which was merely kept down by its own weight, and on which fastenings had not at that time been put, but the old trap-door, for which this new one had been sub- stituted, had been secured by fastenings, was not a sufficient breaking of the house. Rex v. Lawrence, 4 Carrington & Payne, 231, coram BoUand B. This case, however, seems to have been overruled by Rex v. Russell, post, p. 66. The breaking must be of some part of the house. Therefore where the pris- oner opened an area gate with a skeleton key, and thence passed through an open door into the kitchen, it was unanimously held, on the question being raised, that as there was no free passage in time of sleep from the area into the house, the breaking of the area gate was not a breaking of the dwelling-houSe. Rex V. Davis, Russell & Ryan C. C. 322. In Massachusetts, in an early case, it was proved that the goods stolen were VOL. II. 4 60 LEADING CRIMINAL CASES. found in the dwelling-house of Trimmer, one of the defendants, in -whose family the other defendant, Whitney, resided ; that the store from which the goods were stolen, was a room (of the dwelling-house) in the occupation of the per- sons whose goods were stolen, and the goods found were concealed in another room of the house, between which and the room from which they were taken, there was a vacant unoccupied room, and through which Whitney and the wife of Trimmer passed and entered the store, by removing a plank in the partition ; the plank was not fixed or fastened, but was so loose that it could be slid back and forth. The court, Sedgwick, and Sewall JJ. doubted whether there was such a breaking proved, the plank being loose, and having no fastening, as to bring the case within the statute, and directed the jury to acquit of that part of the charge, and to convict of the simple larceny only. Cpmmonwealth v. Trim- mer, 1 Massachusetts, 476. Where the prisoner broke open a box, used as a shutter box, which partly projected from the wall of the house, and adjoined one side of the window of the shop, which side of the window was protected by wooden panelling, lined with plates of iron, it was held, that the shutter box was no part of the dwelling- house. Eex V. Paine, 7 Carrington & Payne, 135. Upon this case Mr. Greaves, the learned editor of Russell, observes : " It is not stated whether the box had any communication with the inside of the house, or whether the breaking was such as to make an opening into the house." 2 Russell on Crimes, 6. 4th ed. It is submitted, that had there been such communication, or such opening into the dwelling-house, it would have been clearly burglary, subject to the proof of entry by the arm or hand of the prisoner. Eex v. Davis, Russell & Ryan C. C. 822. On the same principle it was holden that the breaking of an outward gate, part of the outward fence of the curtilage of a dwelling-house, and which opened not into any building, but into the yard only, was not a breaking of the dwelling- house. Rex V. Bennett, Russell & Ryan C. C. 289. Hale certainly, in his Pleas of the Crown, draws rather a refined distinction between an actual break- ing of the wall surrounding the dwelling-house, and an overleaping of it. After citing 22 Assize, 95, which defines burglary as being " to break houses, churches, walls, courts, or gates, in time of peace," says : " By that book it should seem that if a man hath a wall about his house for its safeguard, and a thief in the night breaks a wall or the gate thereof, and finding the doors of the house open, he enters into the house, this is burglary, but otherwise it had been if he had come over the wall of the court, and found the door of the house open, then it had been no burglary." 1 Hale P. C. 559. Upon this passage of Hale, a commentator. Sergeant Wilson, has the following note : "This (namely, the definition of burglary as extended to walls and gates) was anciently under- stood only of the walls or gates of the city. See Spelman in verbo Burglaria,, murorum portarumve civitatis aut burgi. If so, it will not support our author's following conclusion, wherein he applies it to the wall of a private house." And East, remarking on this passage of Hale, says: "At any rate the distinction between breaking and coming over the wall or gate is very refined ; for if it be part of the mansion, and be enclosed as much as the nature of things will admit of, it seems to be immaterial whether it be broken or overleapt, and more prop- erly to fall under the same consideration as the case of a chimney. And if it be not part of the mansion-house for this purpose, then whether it be broken or not EEX V. HAINES. EEX V. RUSSELL. 51 is equally immaterial; in neither case will it amount to burglary." 2 East P. C. 488. In Russell on Crimes, II. p. 788, 3d ed.. East's opinion is adopted, and the statute 7 & 8 Geo. ly. ch. 29, § 23, having, as will be seen here- after, excepted all buildings within the curtilage from being subject to burg- lary, except under certain conditions, no question can any longer be raised, as to whether the actual breaking of a wall surrounding the dwelling-house can render the offender liable as for a burglarious breaking. It was formerly doubted, whether to descend a chimney into a dwelling-house would be burglary. Hale seems to have entertained this doubt, although Man- wood C. B. had held that it was. Dalton Just. 161. He says : " There was one arraigned before me at Cambridge for burglary, and upon the evidence it appeared that he crept down a chimney. I was doubtful whether this were burglary, and so were some others ; but upon examination it appeared, that in his creeping down some of the bricks of the chimney were loosened, and fell down in the room, which put it out of question, and direction was given to find it burglary; but the jury acquitted him of the whole fact." 1 Hale P. C. 652. It was, however, afterwards fully established that the coming down the chimney was a breaking to establish burglary, and for this reason, namely, because it was as much closed as the nature of the thing would bear. 1 Hawkins P. C. ch. 38, § 4. 4 Bl. Comm. 226. 2 East P. C. 485. It has since been held that getting into the chimney of a house is a sufficient breaking and entering to constitute burglary, though the party does not enter any of the rooms of the house. The prisoner was tried before Mr. J. Burrough at the Dorset Lent Assizes 1821, for burglariously breaking and entering the dwelling-house of George Smith, with intent feloniously to steal the goods and chattels of the said George Smith therein being. It appeared by the evidence of the wife of the prosecutor that whilst sitting in a room adjoining the shop (part of the dwelling- house of her husband), in which were various goods, the stock of her husband's trade, she heard, about twelve o'clock at night, a noise in the shop ; that she took a candle, and went into the shop, and perceiving some soot fall from the chimney, she looked up, and saw a man lying across the chimney, just above the mantel-piece. It appeared that the man had not otherwise been in the shop, and the chimney had no communication with any other room in the house. An alarm was made, and a man, who proved to be the prisoner, was immediately seen to come out at the top of the chimney. He was pursued, and immediately appre- hended. He was by trade a chimney-sweeper, and had shortly before been em- ployed by the prosecutor to sweep the chimney of the shop, and also that of the sitting-room, being.all the chimneys in the house. The learned judge not being satisfied that the evidence was sufficient to support the charge of breaking and entering into the dwelling-house, desired the jury to consider whether they were satisfied that the prisoner's intention was to steal goods in the shop, and if they thought so, he advised them to find him guilty ; and he informed them that he should reserve the other point for the consideration of the Judges. The jury found the prisoner guilty. On a case reserved, ten of the Judges, namely. Best J., GarrowB., Park J., Bayley J., Wood B., Graham B., Richards 0. B., Dallas C. J., Abbott Ld. C. J. held the conviction right. They were of opinion that the chimney was part of the dwelling-house ; that the getting in at the top was a breaking of the dwelling-house ; and that the prisoner, by lowering him- 52 LEADING CEIMINAL CASES. self in the chimney, made an entry into the dwelling-house. Holroyd J. and Burrough J. thought the prisoner could not be said to haw broken and entered the dwelling-house, until he was below the chimney-piece. Brice's Case, Russell & Ryan C. C. 450, 451. The breaking open of a movable chest or box in the dwelling-house, does not of itself constitute a breaking for the purposes of burglary. " If A. enters into the house of B. in the night, by the doors open, and breaks open a chest, or takes away goods without breaking open an inner door, this is no burglary, because the chest is no part of the house." 1 Hale"P. C. 554. Kelyng, 69. Foster, 108. 2 East P. C. 488. The State v. Wilson, Coxe, 439. Whether the breaking open a cupboard or locker let into the wall of a dwell- ing-house be a burglarious breaking, appears never to have been solemnly decided. " At a meeting of the Judges upon a special verdict in January, 1690, they were divided upon the question, whether breaking open the door of a cup- board let into the wall of the house, was burglary or not." Foster, 108. Lord Hale in one passage hesitatingly says, that it is burglary. " If A. breaks open a study or counting-house, or shop within the house, this is burglary, though none usually lodge in the study ; and the same law seems to be, if he breaks open a cupboard or counter fixed to the house," to this he adds a " qusere." 1 Hale P. C. 655. In another passage treating of house-breaking in the daytime, he says : " Some breaking or force will oust clergy upon the statutes of 6 & 6 Edw. VI. and 39 Eliz. which will not make a burglary, if it were in the night, as where he enters by the doors open, and breaks open a counter or cupboard fixed to the freehold, as was agreed in the 'Cambridgeshire Case.'" 1 Hale P. C. 527, mentioned in another part of his work. See also another account of this case in 2 Hale P. C. 358, where he says : " By the advice of all the Judges of England, he was ousted of his clergy upon the statute 39 Eliz. for the taking goods out of the chest to the value of 6s. was felony." This Cambridgeshire Case was Simpson's Case, Kelyng, 31 ; and according to Hale's own account in the very next passage, the reason why he was ousted of his clergy on the 39 Eliz. had no reference to the breaking of the chest, but to the removal of the goods firom it. " T. 16 Car. 11. Simpson's Case, which was thus : A man came into a dwelling-house, none being within, and the doors being open, and broke up a chest, and took up goods to the value of 5s., laid them on the floor, and before he could carry them out of the chamber he was apprehended, and upon this matter spedally found he was ousted of his clergy, upon the statute 39 Eliz. for the taking them out of the chest was felony by the common law, and the statute 39 Eliz. did not alter the felony, but only excluded clergy, per omnes justiciarios Anglise. But whereas in that case the breaking open of the chest was held such a force or breaking, as excludes clergy upon that statute, I have observed that the constant practice at Newgate hath not allowed that construc- tion, unless it was a counter or cupboard fixed ; yet note, this resolution of 16 Car. II. was by all the Judges of England then present, and though one dis- sented, he after came about to the opinion of the rest, ideo qusere." 1 Hale P. C. 527. In another part of the same work, he gives the true account of this case: "It was ruled 16 Car. II. B. B. upon a special verdict found in Cam- bridgeshire. A. comes into the dwelling-house of B., nobody being there, and breaks open a chest, and takes out goods to the value of 6s. and lays them on REX V. HAINES. BEX V. RUSSELL. 53 the floor of the same room, and is apprehended before he can remove them ; he was indicted upon the statute 39 Eliz. and ousted of his clergy by the advice of all the Judges except one ; for the taking out of the chest was felony by the common law, and the stat. 39 Eliz. ch. 15, alters not the felony, but ousts only the clergy." 1 Hale P. C. 608. Therefore, as Foster clearly shows, Simpson's Case does not warrant the inference of Hale in the former passages cited, that though breaking a cupboard fixed to the freehold is not burglary at common law, it may be house-breaking within the statute 39 Elizabeth. "Simpson's Case," remarks Foster, " as truly stated by Hale in one part of his work, and by Kelyng, doth not, in my opinion, warrant any such distinction. It did not, nor possibly could, turn on the circumstance of breaking a chest or fixed cupboard, or any thing like it. Nor doth it appear from the state of the case, that there was the least occasion to refer to any such constructive breaking ; for, in fact, both outer and inner doors were broken open. The case, in my opinion, turned singly on this point. The man had broken open the chest, and brought the goods into the hall, in order to carry them off, but was apprehended in the houfc. It was made a question, whether this amounted to a stealing in the house within the 39 Eliz. and it was holden that it did, the man had once possessed himself of the goods animo furandi." Gibbon's" Case, Foster, 109. Sergeant Wilson, too, in a note upon another passage of Lord Hale, 2 P. C. 358, where he mentions another fact in the case, namely, that the chamber door was broken open, says: " The question about the chest or trunk seems to have been only with relation to the taking away ; whether the taking goods out of a chest, and laying them on the floor without carrying them out of the chamber, was a taking away or stealing within the statute, and not whether it was a robbery, for if it were a stealing, that (namely, the robbery) would be clear, by the breaking open the chamber door." Let us, however, hear Kelyng's report of the case, which will fully establish all that we have said. "At the Lent assizes, at Cam- bridge, 16 Car. n., Clement Simpson was indicted for breaking an house in the daytime, nobody being in the house, and stealing plate to the value of £10. And upon the evidence it appeared, that he had taken the plate out of a trunk in which it was, and laid it on the floor ; but before he carried it away, he was surprised by people coming into the house. And the Chief Justice, Hyde, caused this to be found specially, because he doubted, upon the statute of 39 Eliz. ch. 16, which enacts, that if any one be found guilty of the felonious taking away goods, &c. out of any house in the daytime, above the value of 6*., he should not have the benefit of his clergy, whether this were a taking away within the statute. And on the 13th June Car. II., all the Judges being met together, this question was propounded to them, and agreed that clergy was taken away in this case. For the statute of 39 Eliz. does not go about to declare what shall be felony, but to take away clergy from that kind of felony ; for breaking an house in the daytime, nobody being therein, and stealing goods above the value of 6».' is felony at common law. And by the common law, breaking the house and taking of goods, and removing them from one place to 1 I have altered the passage in Kelyng, says Wilmot, Law of Burglary, p. 34, which is as follows: "But to take away clergy from that kind of felony. For breaking an house in the daytime, nobody being therein, and stealing goods to the Value of 6». so that the felony is at common law." 54 LEADING CRIMINAL CASES. another in the same house, with an intent to steal them, is felony; for by this taking them he hath the possession of them, and that is stealing and felony. Simpson's Case, Kel)Tig, 31. Foster, having pointed out this slight inaccuracy of Lord Hale, goes on to ex- press his opinion, that the breaking open of cupboards attached to the freehold cannot constitute burglarious breaking. " With regard," says that very eminent authority, " to cupboards, presses, lockers, and other fixtures of the like kind, I think we must, in favor of life, distinguish between cases relative to mere property, and such wherein life is concerned. In questions between the heir or devisee and the executor, those fixtures may, with propriety enough, be considered as annexed to and parts of the freehold. The law will presume that it was the intention of the owner, under whose bounty the executor claimeth, that they should be so considered ; to the end that the hoiise might remain to those who, by the operation of law, or by his bequest, should become entitled to it in the same plight he put it, or should leave it entire and undefaced. But in capital cases, I am of opinion, that such fixtures, which merely supply the place of chests and other ordinary uten- sils of household, should be considered in no other light than as mere mova- bles, partaking of the nature of those utensils, and adapted to the same use." Foster, 109. ' The point does not appear to have since arisen, but were it to occur, doubtless the opinion of so great a judge would be entitled to the highest respect. See 2 Russell on Crimes, 7. 4th ed. ; 2 East P. C. 489. And, perhaps, we may be allowed to suggest another reason why such a breaking should not be burglarious, namely, that as a general principle, the actual break- ing of the dwelling-house has reference to the entry at common law, or to the escape of the intruder by breaking out under the statute. Whereas the breaking of a cupboard is a distinct and independent act. In The State v. Wilson, Coxe, 439, 441, Kinsey C. J. said : "If, however, all the doors be open, and the thief enters through an open door, and after getting into the house should break open a chest, or a cupboard, euera fixed in the wall, this is not such a breaking as the law requires." In Ohio it has been held under a statute of that State, making it an offence to "forcibly break and enter" a building, that actual force is not necessary, but that a breaking at common law is sufficient. Ducheri). The State, 18 Ohio, 308. n. If there be no actual breaking there must be a breaking by construction of law, as where any one by fraud, conspiracy, or threats, procures the door of a dwelling-house to be opened to him. " Thieves come with a pretended hue and cry, and require the con- stable to go along with them to search for felons, and whilst he goes with them into a man's house, they bind the constable and dweller, and rob him, this is burglary." 3 Inst. 64. 1 Hale P. C. 652. " This," writes Hale, " hap- pened in Blackfriars, 1664, where thieves pretending that A. harbored traitors, called the constable to go with him to apprehend them, and the constable enter- ing, they bound the constalje and robbed A. and were executed for burglary, and yet the owner opened the door of his own accord to the constable." 1 Hale P. C. 653. Crompton, 22 a. . Where divers persons came to a house with intent to rob it, and knocked REX V. HAINES. REX V. RUSSELL, * 55 at the door, pretending to have business with the owner, and being by that means let in, rifled the house, they were guilty of burglary. 1 Hawkins P. C. ch. 38, § 6. " At the sessions," says Kelying: " I inquired of Le Mott's Case, which was adjudged in the time of the late troubles, and my brother Wyld told me that the case was thus : that thieves came with intent to rob him, and finding the door locked up, pretended they came to speak with him, and thereupon a maid-servant opened the door, and they came in and robbed him, and this being in the night-time, this was adjudged burglary, and the persons hanged ; for their intention being to rob, and getting the door open by a false pre- tence, this was in fraudem legis, and so they were guilty of burglary, though they did not actually break the house ; for this was in law an actual breaking, being obtained by fraud to have the door opened ; as if men pretend a war- rant to a constable, and bring him along with them, and under that pretence rob the house, if it be in the night, this is burglary." Le Mott's Case, Kelyng, 42. " Nor were those less guilty," says Hawkins, " who, having a design to rob a house, took lodgings in it, and then fell on the landlord and robbed him; for the law will not endure to have its justice defrauded by such eva- sions." 1 Hawkins P. C. ch. 38, § 6. "At the jail delivery in the Old Bailey, 10th of October 1666, Thomas Cassy and John Cotter were indicted for robbing William Pinkney, a gold- smith, by the Temple Bar, in his house near the highway, in the night-time, and stealing several parcels of plate and other things from him. And they were also indicted for the same offence for burglary, for breaking his house ■ in the night, and stealing his plate, and on both these indictments they were arraigned and tried; and upon the evidence the case appeared to be, that Cotter was a lodger in the house of the said Pinkney, and knowing that he had plate and money to a good value, he combined with the aforesaid Cassy, and one John Harrington, and Gerrard Cleashard, and they three contrived that one of those three should come as servant to the other to hire lodgings there for his master and another gentleman ; and Cotter told them that Pinkney was one who constantly kept prayers every night, and they could not have so good an opportunity to surprise him as to desire to form in prayer with him, and at that time to fall on him and his maid, there being no other company in the house ; and accordingly one of them came on Saturday in the afternoon and hired lodgings there, pretending it to be for his master and another gentleman of good quality, and about eight o'clock at night they all came thither, two of them being in very good habit, and when they were in their chamber they sent for ale, and desired Pinkney to drink with them, which he did ; and whilst they were drinking Cotter came into his lodging, and they hearing one go up stairs, asked who it was, and Pinkney told them it was an honest gentleman, one Mr. Cotter, who lodged in his house, and they desired to be acquainted with him, and that he might be desired to come to them ; and thereupon Pinkney sent his maid to let him know the gentlemen desired to be acquainted with him, to which Cotter sent word it was late, the next day was the Sabbath, and he desired to be pri- vate, and thereupon those persons told Pinkney they had heard he was a reli- gious man, and used to perform family duties in which they desired to join with 56 LEADING CBIMINAL CASES. him ; at which Pinkney was very well pleased that he had got such religious per- sons, and so called to prayers, and while he was at his devotion they rose up and bound him and his servant, and then Cotter came to them and showed them where his money and plate lay, and they ransacked the house, and broke open several doors and cupboards fixed to the house ; and upon this evidence, myself, my brdther Wyld, Recorder, and Mr. Howell, Deputy Recorder, being all who were there present of the long robe, were of opinion that the entrance into the house being gained by fraud, with an intent to rob, and they making use of this entrance, thus fraudulently obtained, as in the night-time, to break open doors, &c. this was burglary, agreeably to the case of Farre, in this book, and the case of Mr. Le Mott, in this book, and accordingly they were fouild guilty, and had judgment, and were executed." Cassy and Cotter's Case, Kelyng, 62. Farre's Case, to which Kelyng here refers, was, where the getting pos- session of a dwelling-house by a judgment against the casual ejector, ob- tained by false affidavit, without any color of title, and then rifling the house, was ruled to be within the statute against breaking the house and stealing goods therein. 2 East P. C. 485. " At the jail delivery in the Old Bailey, 6th of April 1665, my Lord C. J. Hyde, myself, and my brother Wyld, Recorder of London, then present, one Richard Farre and Eleanor Chadwick were indicted for breaking the house of Robert Stanyer, and putting his wife in fear, and stealing from thence several goods ; and upon the evidence the case was, that Mrs. Stanyer, whose house was robbed, had for many years lived from her hus- band and hired the house, and a lease was drawn up for this house in her hus- band's name, which he refused to seal, and said he would have nothing to do with it, but the landlord and she agreed, and she constantly paid the rent, and had the house very well furnished, and had plate, jewels, and household stuff of a very great value. And Farre the prisoner, and Eleanor Chadwick, who lived with him as his paramour, and had so done a great while, intending to rifle her house, laid this design, namely, Farre went to an attorney of the Common Pleas, and told him that Mrs. Stanyer was his tenant, and in arrear for rent, and he had no way to get her out by ejectione firmse, and thereupon he, according to the way now used, made a casual ejector ofhis own, and delivered a declaration, and Eleanor Chadwick made a false oath in the Common Pleas, that she had delivered a copy of that declaration to the tenant in possession, and thereupon judgment was obtained against the casual ejector, and a writ to the sheriff to deliver possession, and thereupon Farre got the sheriff's bailiffs to execute the writ and turn Mrs. Stanyer out of possession, and at the same time Farre took out a latitat against Mrs. Stanyer, supposing a debt, and at the same time ar- rested her, and would take no bail, but caused her to be carried to Newgate, and then Farre and Chadwick went to rifle their goods in the house, and broke open cupboards and trunks, and took away jewels and plate, and carried them into his own house and hid them there, and carried away divers of the goods by night, and took the pewter which had her husband's arms upon it, and got them taken out, and sold other of the goods ; and after, upon complaint to my Lord Chief Justice, by his warrant, Farre's house was searched, and the jewels and plate there found, and divers other goods ; and Farre and Chadwick, upon examination by my Lord Chief Justice, were sent by him to Newgate, and now this indictment preferred against them, and Farre being asked what color of REX V. HAINES. REX V. RUSSELL. 57 title he had to the house, could pretend none ; but it appeared that the true landlord had received the rent of it for many years, and that no rent at all was behind. And Farre being asked what cause of action he had against Mrs. Stanyer to cause her to be arrested, could pretend none ; and being like- wise asked what color he had to break open trunks and cupboards, and to take the goods and sell them, and cause the coat of arms to be expunged, he could make no pretence, and it was agreed by us all that although they had made use of the law and officers of the law to get the possession and arrest the woman, yet if all this were done in fraudem legis with intent to rob, this course was so far from excusing the robbery, that it heightened the offence by abusing the law, and the process of it, without color of title, &c. as Coke, 3 Inst. 64 : " If thieves, pretending to be robbed (as ante), raise hue and cry, and call a constable in the night, and cause him to search an house on pretence the thieves are there, and thereupon, by command of the constable, the door is opened and they go in, and then rob the house, this is burglary, though the house was not actually broken open by them, but opened at the command of the constable, for this being in fraudem legis, shall not be accounted an actual break- ing in them ; " and so was Le Mott's Case adjudged, which is in this book, the next case before this ; and so it hath been adjudged, that if goods be dis- trained and put in a pound, and one who hath a design to steal them, go to the sheriff and get a replevin for these goods, and by color of this repli- cation the goods are delivered to him, and he driveth them away, and sells them, having no color of title to them, this is felony. And we also agreied that although Mr. Stanyer, the husband, did not dwell in this house, and refused to have to do with it, yet the indictment was well, for breaking open his dwelling-house ; for whatever the wife hath is the husband's in law, and it cannot be said to be the wife's house, and so direction was given to the jury that if they did believe that the prisoners had done all this with an intent to rob, they ought to find them guilty, and the jury did find them guilty, and both of them had judgment to be hanged, and they were executed accordingly." Farre's Case, Kelyng, 43, 44, 45. I have given these two reports from Kelyng, says Wilmot, Law of Burglary, p. 41, verbatim, not only on account of their high authority — Lord C. J. Holt, who succeeded him as Chief Justice of England, having, together with Jus- tices Powell, Powys, and Gould, set the seal of their approval upon the pub- lication of his reports. Holt having himself been the editor of them, according to Foster C. J. 263 — but because in both cases mention is made of the parties having broken open cupboards, and yet Kelyng does not advert to this fact as in any way establishing the burglary. And yet Cassy and Cotter's Case is cited thus in the Index, under the head " Burglary." " So to break open a closet door or cupboard fixed to the freehold." Nevertheless, we find in another part of Kelyng's Reports, where he is speaking of its being neces- sary, in order to make a robbery of a house under the 23 Hen. VIH. ch. 1, and 5 Edw. VI. ch. 9, and to oust the offender of clergy, that there should be an actual breaking of the house, or such violence to some person therein, as shall put them in fear or dread, we find, I say, a passage by which it seems that he did incline to the opinion that the breaking of a cup- board fixed to the freehold might aggravate a larceny to robbery or burglary,' 58 LEADING CRIMINAL CASES. as the case might be. "Note," he says, " that in Popham's Reports, 84, in one Baynes's Case, it is said that the said Baynes, with another, coming in the night-time to a tavern to drink, the said Baynes stole a cup in which they drank, out of a chamber in the said house, his wife and servant being in the said house, for which he was indicted and found guilty. And it is there reported that by the opinion of Anderson, Popham, and Perrin, and the then Recorder and Sergeant of Law, these being present, it was agreed that this was no burglary, which certainly is good law, because 'there was no actual breaking of the house, which is of necessity to make a burglary." Then, after some remarks on the distinction between robbery and larceny, and the degree of fear caused, necessary to bring the offender within the statutes 23 Hen. "VIII. ch. 1, and 5 Edw. VI. ch. 9, he goes on to say: " For if the door of a house be open, and a thief enter in 'the night and steal goods, this is only larceny and no burglary, because there was no force, which is that which distinguisheth robbery from larceny. Now this force which will make a robbery of a house within those statutes to take away clergy, may either be an actual breaking of a house, or an assault upon the person, and therefore if company come to drink in a tavern or other victual- ling-house, and being there they break open a door of another chamber or cupboard in the wall which is fixed to the freehold, and steal away goods, this is a robbery for which clergy is taken away by those statutes. But the breaking open of a trunk or box, and taking away things, is no robbery of a house within the statute, because those things which were broken were no part of the house.'' The case of Le Mott, cited from Kelyng, had its weight in the decision of a subsequent case, where fraud was exercised to gain admission to the house, and it was held burglary. This was the case of Ann Hawkins, cited from the MS. of Tracy, in East's Pleas of the Crown. " At the Old Bailey sessions, before Easter term 1704, Ann Hawkins was indicted for burglary, and, upon evidence, it appeared that she was acquainted with the house, and knew the family were in the country. That meeting with the boy who kept the key, she desired him to go with her to the house, and, to induce him, promised him a pot of ale. The boy accordingly went with her, opened the door, and let her in. She then sent the boy for the pot of ale, robbed the house, and went off. This being in the night-time. Holt C. J., Tracy, and Bury adjudged it to be clearly burglary in the woman, for she prevailed with the boy, by' fraud, to open the door with intent that she might rob the house ; and, Lord Holt relied upon Le Motfs Case." Hawkins's Case, 2 East P. C. 485. In The State v. Henry, 9 Iredell, 463, it was held, that there cannot be a constructive breaking by enticing the owner out of his house by fraud and circumvention, and thus inducing him to open his door, unless the entry be immediate, or in so short a time that there is no opportunity for the owner or his family to refasten the door. In that case, the owner was decoyed to a dis- tance from his house, leaving his door unfastened, and it was not fastened by his family after his departure. At the expiration of ten or fifteen minutes, the prisoner entered the house, by opening the unfastened door, with intent to commit a felony. Held, that this was not burglary. But see the dissenting opinion of Ruffin C. J. EEX V. HAINES. REX V. RUSSELL. 59 So to persuade an innocent agent, either under color of right or on any other excuse, or to incite a child under years of discretion, to open the door of another man's dwelling-house in the night-time, and i^ thence bring out goods, would be burglary in him that should thus persuade, although he take no part himself in the transaction ; but the agent or the child, by reason of its tender years, would stand excused. "If A." says Lord Hale, "being a man of full age, takes a child of seven or eight years old, well instructed by him in this villanous art, as some such there be, and the child goes in at the window, takes goods out, and delivers them to A. who carries them away, this is burg- lary in A. though the child that made the entry be not guilty, by reason of his infancy." 1 Hale P. C. 655. " So if the wife, in the presence of the husband, by his threats or coercion, breaks and enters the house of B. in the night, this is burglary in the husband, though the wife, that is the immediate actor, is excused by the coercion of her husband." 1 Hale P. C. 656. Purcell Crim. PI. 15. Broom Commentaries, 880. 3d ed. In Blackstone's Commentaries, IV. 29, the law is broadly laid down that the wife is guilty and punishable as if she were sole, if she com- mits those "crimes which, like murder, are mala in se, and prohibited by the law of nature." But "this position," says Mr. Greaves, "is obviously much too large, as it includes larceny and burglary." 1 Russell on Crimes, 34 note. 4th ed. A breaking may also be effected by conspiring with persons within the house, by whose means those who are without effect an entrance. " If A. the servant of B. conspires with C. to let him in to rob B., and accordingly A. in the night-time, opens the door or window, and lets him in, this is burglary in C. but larceny in A. the servant, according to Dalton, ch. 151, p. 361. It seems it is burglary in both, for if it be burglary in C. it must needs be so in A. because he is present and aiding C. to commit this burglary. 1 Hale P. C. 553.' The passage in Dalton, here cited by Hale, is the following:. " If a servant conspiring with another to rob his master, shall open his master's door or window in the night, and the other entereth thereat, this is burglary in the stranger, by the opinion of Sir Roger Manwood, and the servant is but a thief, and no burglar." Dalton J. P. tit. Burglary. Hawkins compares the case of a servant letting in a thief at night with that where many act in concert, and although some of the party keep watch at a distance, they are, by construction of law, equally guilty of breaking and enter- ing the dwelling-house as those who actually break and enter. "It is certain that in some cases one may be guilty of burglary who never made an actual entry at all, as where divers come to commit a burglary together, and some stand to watch in adjacent places, and others enter and rob, &c. for in all such cases the act of one is, in judgment of law, the act of all. And upon the like ground it has been deliberately determined upon a special verdict, that a servant who, confederating with a rogue, lets him in to rob a house, &c. is guilty of burglary as much as the rogue himself; for it is clear that if the servant were out of the 1 Crompton says it is burglary in the servant, but adds a quaere. " Mon servant conspire aveo laron de robber moy, et le servant over le huis al laron, que entre in le nute, d'emblear plate, ceo est burglarie in le servant. Quaere." Fol. 22 b. 60 LEADING CRIMINAL CASES. house, the entry of the other would be adjudged to be his also ; and what dif- ference is there when he is in the house ?" 1 Hawkins P. C. ch. 17, §§ 13, 14. ed. Curwood. East (2 P. C. 446) and Blackstone have adopted the reasoning of Hawkins. "If a servant," says the latter (4 Coram. 227) " conspires with a robber, and lets him into the house by night, this is burglary in both, for the servant is doing an unlawful act, and the opportunity afforded him of doing it with greater ease rather aggravates than extenuates the guilt." This was the ground upon which the Judges based their decision in Cornwal's Case, although the point raised at the trial, and which caused the doubt in the minds of the Judges who tried the case, was the fact that the servant did not go out with the prisoner after letting him out of the house. The case is reported in Strange. " Joshua Cornwal was indicted, with another person, for burglary, and upon the evidence it appeared that he was a servant in the house where the robbery was committed, and in the night-time opened the street door and let in the other prisoner, and showed him the sideboard from whence the other prisoner took the plate ; then the defendant opened the door and let him out, but the defendant did not go out with him, but went to bed. Upon the trial it was doubted whether this was burglary in the servant, lie not going out with the other; and it being laid down in Hale P. C. 81, Dalton, 317, that it is not burglary in the servant, the Judges ordered it to be found specially. And afterwards, at a meeting of all the Judges at Sergeants' Inn, they were all of opinion that it was burglary in both, and not to be distinguished from a case which had often been ruled and allowed in the same page in Hale, that if one watches at the street end while the other goes in, it is burglary in all ; and upon report of this opinion the next sessions, the prisoner was executed." Cornwal's Case, 2 Strange, 881. It was formerly considered doubtful how far it might be considered as a break- ing, if a servant, acting in confidence, and with the assent of his master, let rob- bers in by agreement with them to steal, but in truth with a view to their appre- hension. 2 East P. C. 486. This was the subject of much debate and doubt in Egginton's Case, 2 East P. C. 494 ; but as the points reserved in that case for the opinion of the Judges made no mention of this intentional co-operation of the servant with the robbers, and of his real design in opening the door, the current of opinion at that time must have been, that such admission of the prisoner, with intent to apprehend them, would not render it less a breaking of the house. A case, however, has been decided, by which the question has been otherwise settled. This was Kegina v. Johnson, Carrington & Marshman, 218, where it was held by Maule J. and Rolfe B., that if a servant, pretending to agree with a robber, open the door and let him in, for the purpose of detect- ing and apprehending him, this was no burglary, for the door was lawfully open. There may also be a breaking in law where, in consequence of violence com- menced -or threatened, in order to obtain an entrance, the owner, either from ap- prehension of the force, or with a view more effectually to repel it, opens the door, through which the robber enters. 2 East P. C. 486. 1 Hawkins P. C. ch. 17, § 7, ed. Curwood. Although Hawkins rather gives it as the opinion of others than his own. "According to some opinions," he says, "he would have been in EEX V. HAINES. BEX V. EUSSELL. 61 like manner guilty, if upon an assault made by him upon the house with intent to rob it, the owner had opened the door, in order to drive him off, and there- upon he had entered ; in which case, as some say, the opening of the door by the owner, being occasioned by the felonious attempt of the other, is as much imputable to him as if it had been actually done by his own hands." In a case, where the evidence was that the family within the house were forced by threats and intimidation to let in the oifenders, Thompson B. told the jury that although the door was literally opened by one of the family, yet if such opening proceeded from the intimidations of those who were without, and from the force which had been used, knocking at and breaking the windows, calling out and insisting upon the door being opened, and firing of guns ; if under these circumstances the persons within were induced to open the door, it was as much a breaking by those who made use of such intimidations, to prevail upon them so to open it, as if they had actually burst the door open. Rex v. Swal- low, MS. Bayley J., 2 Russell on Crimes, 9. 4th ed. But if upon a bare assault upon a house, the owner fling out his money, it is no burglary, 1 Hawkins P. C. ch. IV, § 3 ; though, if the money were taken up in the owner's presence, it would be robbery. 2 East P. C. 486. Even if a hole were broken in the house by the violence of the assault, it would not be ren- dered burglary on that account. "A. intending to rob B. breaks a hole in his house, but enters not, B. for fear throws out his money to him, A. takes it and carries it away, this is certainly robbery, and some have held it burglary, though A. never entered the house; and so it is reported to have been adjudged by Saunders C. B. Crompton, 31 b. tamen quaere." 1 Hale P. C. 555. Dalton is, however, of a contrary opinion. " If upon an attempt of burglary, they within the house shall cast out their money for fear, this is burglary." Dalton J. P. tit. Burglary. Sergeant Wilson says, in his note on the above passage in Hale : "It was adjudged by Montague C. J. and Saunders only related it." And Russell, in a note on this passage of Hale, says : " Certainly, as a part of the statement of the case is, that there was no entry into the house, and as an entry is as an essential a part of the offence as the breaking, it seems difficult to discover the ground on which it could have been ruled to be burglary." 2 Rus- sell on Crimes, 9. 4th ed. But it may have been possible that the evidence in the case before Montague was, that, in breaking the hole in the wall, the offender introduced his hand or arm, to reach goods in the house, and thus there would have been a clear breaking and entering, independently of the act of the owner in throwing out his money to the thief. Lastly, all by construction of law are guilty of the breaking who are acting in concert with those who actually break and enter. "So it is if A. B. and C. come to commit a robbery, and A. stands sentinel at the hedge corner, to watch if any one come, and B. and C. commit the robbery, though A. was not actually present, nor within view, but at a distance from them, and the like in burglary.^ 1 Hale P. C. 534, 439. 3 Inst. 63. 1 They must be near enough to render assistance. This seems adverse to what was laid down in Eex v. Jordan, 7 Carrington & Payne, 432, that those who are present at the breaking, but not at the entry, are guilty of burglary. In the latter case, can there possibly be any constructive presence so as to satisfy the requisitions of the law ? See 1 Hale P. C. 655. 62 LEADING CRIMINAL CASES. We will close this note on the breaking essential to burglary, with the words of Hale: " In all other cases, where no fraud or conspiracy is made use of, or violence commenced or threatened, there must be an actual breach of some part or other of the house, though it need not be accompanied with any violence as to the manner of executing it." ' Hale Sum. 80. Eex V. M'Keabnby.2 May 20, 1829. Burglary — Breaking out of a Dwelling-House. The getting the head out through a skylight is sufficient breaking out of a house to constitute burglary. The prisoner was tried before M'Clell an B. at the spring assizes at Omagh in 1829, on an indictment for a burglary in the house of Louis Davis. There were three counts in the indictment : tlie first, for breaking and entering the house by night with intent to steal, &c. ; the second, for entering the house with intent to steal, &c. and breaking said house by night, and getting out of the same ; the third, for entering said house with intent to steal, &c. and by night breaking out of said house. It appeared on the trial, that on the 8th of January 1829, the prisoner was, about 11 o'clock at night, discovered in the cellar of the house, hid under a heap of potatoes ; he fled from the cellar into a room in the house and locked himself in ; this room had a shed roof and a skylight in the roof. Davis, the owner of the house, heard the skylight breaking, and then ran round into his yard, when he saw the prisoner with his head out of the skylight 1 In the above note, althotigh it is said that if a person leave his window open it is no burglary to enter thereby, inasmuch as there is no breaking, yet a case might occur where a door or window might be left open, and yet a burglary take place. Suppose I sleep with my bedroom window open, and a thief is found at night breaking open the door of my premises, and within my dwelling-house, here all the windows of my house would not have been closed, but inasmuch as the presumption thereby raised in favor of the prisoner, that there had not been the breaking necessary to constitute burglary, would be overcome by the fact that he had been found actually breaking into the house, the requirement of the law, namely, that there should be both a breaking and entry, would be amply satisfied. But in the absence of any 'positive proof of the breaking, the fact of the window having been left open would defeat the burglary. 2 Jebb 0. C. 99. EEX V. m'kearney. 63 endeavoring to escape, — he struck the prisoner a blow on the head, when he fell down into the room, where he was taken by a police constable immediately after, on his breaking open the door which the prisoner had locked. The jury convicted the prisoner, but the learned Baron entertaining some doubts whether there was a suffi- cient breaking out of the house to constitute the crime of burglary, reserved the following question for the twelve Judges : Whether, the prisoner having only got his head out of the skylight, this was a sufficient breaking out of the house to complete the crime of burglary ? The Judges unanimously ruled that the conviction was right. It was formerly doubted, if a thief entered a dwelling-house in the daytime, and lay there till night, and then robbed the house and went out, either by open- ing a door or window, or by such other act as the law holds to be a breaking, whether this were burglary. Again, if a person entered a dwelling-house in the night-time by an open door or window with intent to commit felony, and, in going out, also in the night-time, should open another door, or break out in any other manner, whether this were burglary. Lord Coke is totally silent on the subject, but we find the two following passages in Hale : " If a thief be lodged in an inn, and in the night he stealeth goods and goeth away, or if he enters into the housp secretly in the daytime, and there stayeth till night, and then steals goods and goes away, this is not burglary. Dalton, 253. Crompton, 34, a." 1 Hale P. C. 653. " If a man enters in the night-time, by the doors open, with the intent to steal, and is pursued, whereby he opens another door to make his escape, this, I think, is not burglary against the opinion of Dalton, p. 253, out of Sir Francis Bacon, for fregit et exivit, non fregit et intravit." 1 Hale P. C. 554. The passage in Dalton, here referred to by Hale, is as follows: "If a thief finds the door open, and cometh in by night, and robs the house, and be taken with the manner, and breaks a door to escape, this is burglary ; yet the breaking of the door was without any felonious intent, but it is one entire act. Sir F. Bacon, Elem. 66. But if one cometh into my house in the daytime, and there hideth himself till night, and then robbeth me (sc. goeth out of my house, and taketh away some of my goods with him), yet this is no burglary, for that he broke not my house. For the first case, it was so holden at Derby Assizes, 32 Eliz.' Crompton, 34. Quaere, he adds, of his opening the door to escape, 1 On referring to Crompton, we certainly find a quaere, but it does not appear to have any reference to the opening of a door by a thief in his escape. In the edition of his Justice, published in 1583, the following is the passage: " Larons, entrent in mon meason in le nute per hnis esteant overt de committer felony et pur o6o que ils perceive que fuerunt ales al ooucher, ils sen allount, et sur pursnte fuerunt pris, n'est burglarie, ceo ils ne infrent meason." In this edition we have no qusere, but in a latter edition, published A. D. 1606, we find the same paragraph thus concluded: " Semble, que n'est burglarie oar ils n'infrient le meason, quaere? " Crompton's Fitzherbert's Justice, fol. 3i. Lambard, whose EIrenarcha, or Office of Justice of the Peace, was published A. D. 1619, and closely follows Crompton, makes no mention of burglary by breaking out of a dwelling-house. 64 LEADING CEIMINAL CASES. if that shall not make it burglary." Dalton Just. ch. 251. It has been since settled, that it is not the less a burglary, if the person breaking out is lawfully in the house as a guest or lodger. Regina v. Wheeldon, 8 Carrington & Payne, 747. Those doubts entertained by Hale were, however, set at rest by the statute 12 Anne, ch. 1, § 7, which, after reciting, " That there had been some doubt whether the entering the mansion-house without breaking the same, with an intent to commit some felony, and breaking the said house in the night-time to get out, were burglary," declared and enacted that, " If any person shall enter into the mansion or dwelling-house of another by day or by night, without breaking the same, with an intent to commit felony, or, being in such house, shall commit any felony, and shall in the night-time, break the said house to get out of the same, such person is and shall be adjudged and taken to be guilty of burglary, and ousted of the benefit of clergy, in the same manner as if such person had broken and entered the said house in the night-time, with an intent to commit felony there." This act was passed in consequence of a special ver- dict found in the case of Elizabeth Clarke, tried at the Old Bailey 1707, where Lord Holt and C. J. Trevor had expressed a doubt upon the point, and the special verdict had been found at the direction of the former. 2 East P. C. 490. The statute of Anne was repealed by the 7 & 8 Geo. IV. ch. 27 ; and the 7 & 8 Geo. IV. ch. 29, § 11, declares that, " If any person shall enter the dwelling- house of another, with intent to commit felony, or being in such house, shall commit any felony, and shall in either case break out of the said dwelling-house in the night-time, such person shall be deemed guilty of burglary." Upon this statute it has been held to be not the less a burglary, if the person breaking out of the house, having committed a felony, was lawfully in the house, as a servant, lodger, or guest at an inn. " The prisoner was indicted for burg- lary in having broken out of the house of Aaron Collins. The prosecutor said, that on the night of the 31st of "December, the prisoner lodged at his house. Before going to bed on that night, he had secured his house. Between three and four in the following morning, he heard the prisoner get up and leave the house. Mrs. Collins, the prosecutor's wife, proved that when she got up in the morning of the first of January, she missed a jacket, which was afterwards found in the possession of the prisoner, and she also proved that at between three and four in the morning, she heard the prisoner go down stairs, unbolt the back door of the house, and go away. Erskine J. : If a person commits a felony, and breaks out of the house in the night-time, that is burglary, although he might have lawfully been in the house. If a lodger has committed felony, and in the night-time even lifts a latch to get out of the house with the stolen property, it is a burglarious breaking out of the house. It is the purpose for which he undoes the fastening that makes the purpose unlawful. Verdict guilty." Regina V. Wheeldon, 8 Carrington & Payne, 747. It seems from the above opinion of the learned judge, that the words " break- ing out " in the statute would be satisfied, even if the attempt of the prisoner to get out ' proved abortive, and he were arrested before any part of his body were I Lifting a latch to get out, might have satisfied the words of the statute of 12 Anne " shall break the said house to get out of the same ; " but would the lifting a latch be '• a breaking out," according to the words of the statute 7 & 8 Geo. IV. ch. 29, § 11. REX V. m'keaenet. 65 outside the dwelling-liouse, sed quaere. And the passage in Hawkins, which appears to support this dictum of Erskine J. is rather applicable to a construc- tive breaking and entry than to a breaking out of the house. " If one enter a house by a door which he finds open, or through a hole which was made there before, and steal goods, &c. or draw any thing out of a house through a door or window which was open before, or enter into a house by the doors open in the day-time, and lie there till night, and then rob and go away without breaking any part of the house, he is not guilty of burglary. But it is certain that he would have been guilty thereof if he had opened the window or unlocked the door, or broke a hole in the wall, and then had entered ; or if having entered by a door which he found open, or having lain in the house by the master's consent, he had but unlatched a chamber door, or if he had come down by the chimney." Hawkins P. C. ch. 38, § 4. And we find a parallel passage in Hale, who is evi- dently speaking of burglary by breaking and entering into a dwelling-house. " If A. enters the house of B. in the night-time, the outward doors being open, or by an open window, and when he is within the house turns the key of a door ' of a chamber, or unlatcheth a chamber door, with intent to steal, this is burglary, though the outward door were open ; and so it was adjudged upon a special ver- dict before me at the sessions at Newgate, 1672, by advice of many Judges then also present." 1 Hale P. C. 655. Hale could not, in this passage, have been speaking of burglary by breaking out of a dwelling-house, for in the very next sentence but one (already quoted) he gives it as his opinion, contrary to that of Sir F. Bacon, that such breaking out was no burglary. And as breaking without entry is insufficient to constitute burglary at common law, it would almost seem, that a breaking without some sort of egress on the part of the person endeavor- ing to escape, would not satisfy the words of the statute " break out of the dwelling-house." But if a person having been lawfully in the house as a servant, lodger, or guest, attempt to commit felony, but is resisted, and breaks out of the house, he is not guilty of burglary under the statute 7 & 8 Geo. IV. ch. 29, § 11. He did not enter the house with intent to commit felony, nor has he actually committed it, therefore he comes under neither requisition of the statute. For example, as if a lodger or servant were to attempt to commit a rape upon the person of one of the female inmates of the house, and in conse- quence of resistance by the person assaulted, left the felony incomplete, and broke out of the house, in order to eflfect his escape, he would not be guilty of burglary. In Rex V. Lawrence, 4 Carrington & Payne, 231, it was held, that the escaping out of a house by lifting up a covering kept down by its own weight, was not a breaking out of the dwelling-house under the statute. " At the Hereford Spring Assizes in 1830, the prisoners were indicted before Baron BoUand, for burg- lary. There were two counts in the indictment; the first, charging the prisoners with breaking into the dwelling-house of Henry Gatehouse, with intent to steal his 1 A case, reported by Crompton, had gone still further. " Thief enters a house in Essex, at night, the door (huis) being open, upon which the wife of the owner, in fear, retires within her chamber, and shuts the door. The thief pushes against the chamber door to open it, the woman cries out, and assistance being given, the thief is taken. This was held burg- lary in Queen Elizabeth's time, " as," says Crompton, " I have heard." Crompton's Justice, fol. 26 b. VOL. II. 5 66 LEADING CRIMINAL CASES. goods ; the second count charged a breaking out of the house. There was no evidence to show how the prisoners got into the house, but the evidence of the breaking out was as follows : Mr. Gatehouse, the prosecutor, said : ' At about half-past ten o'clock on the night of the 6th of December, I secured my house, and went to bed. There is a trap-door over the cellar in the court-yard, which was down. This trap-door drops down into its place, but has no fastening of any kind, it is merely kept down by its own weight. This trap-door is a new one, and on the 6th of December the fastenings had not been put upon it. The old trap-door, for which this new one was substituted, had been secured by fastenings. I did not lose any of my property.' A watchman said : 'I was on duty on the night of the 6th of December ; I saw the prisoner, Lawrence, push up the trap-door and come out of Mr. Gatehouse's cellar ; I also heard the foot- steps of a man in Mr. Gatehouse's hall ; I heard a second man unlock the hall door, and open it, and then run out of the house. That man was the other prisoner.' Powell, for the prisoner, objected that the lifting up of the flap was not sufficient to constitute a breaking. Davis, contr^, cited the case of Rex v. Brown, 2 East P. C. 487. Bolland B. I am of opinion, that the lifting up of this flap by the prisoner Lawrence is not a sufficient breaking. I think, there- fore, that he must be acquitted. As to the other prisoner, I am decidedly of opinion, that the unlocking and opening of the hall door, and running away, are sufficient to constitute a breaking out of the house. The case is, therefore, made out as to him, if the jury are satisfied that he is the person who broke out of the house. The jury acquitted both the prisoners." Rex v. Lawrence, 4 Carring- ton & Payne, 231. This case, however, appears to have been overruled by Rex v. Russell, 1 Moody G. C. 377, ante p. 44, unless, as Mr. Greaves justly remarks, in a note to his excellent edition of Russell on Crimes, vol. 2, p. 8 note, a breaking out of a house can be distinguished from breaking into one.' 1 In the Fifth Report of the English Commissioners on Criminal Law, we find the follow- ing forcible remarks on hurglary, by breaking out of a dwelling-house : " By the statute 12 of Queen Anne, ch. 1, § 7 (now repealed by 7 & 8 of Geo. IV. eh. 27, and re-enacted by ch. 29 of the same statute) the crime of burglary was extended to the case of an offender, who, having committed a felony in a dwelling-house, or having entered therein with intent to commit a felony, afterwards broke out of such dwelling-house in the night-time. This extension does not, we think, rest upon any just principle. After a felony has been com- mitted within the dwelling-house, the offence is not in reality aggravated by lifting the latch of the door, or the sash of a window, in the night-time, in order to enable the offender to escape. A breaking out, indeed, may be an innocent act, as it may be committed by one desirous of retiring from the further prosecution of a crime; and the extension of the law of burglary to such a case is not warranted by the principles upon which the law is founded, inasmuch as a circumstance not essential to the guilt of the offender, or the mischief of the act, is made deeply essential to the crime. It is ineffectual, even with a view to the object proposed; the pretext for the conviction fails in the absence of a breaking out, which is a casual and uncertain circumstance." Accordingly, the articles drawn up by the English Commissioners on Criminal Law, with reference to the crime of burglary, are totally silent as to the offence of larceny in a dwelling-house, in the night-time, becoming burglary, if the offender, after oopmitting a larceny, or having entered the dwelling-house with intent to commit felony, should, either actually or constructively, break out of the house. lu fact, the Commissioners, in the body of then: report, expressly recommend the repeal of the 7 & 8 Geo. IV. ch. 29. united states v. wood. 67 United States v. Wood.^ January Term 1840. Perjury — Corroborative Evidence — Defendant's Letters and G-enuine Documents. On an indictment for perjury in taking tlie owners' oath under tlie act of Marcli 1, 1823, section 4, (3 Statutes at Large, 730) it is not necessary for tlie prose- cution to produce a living witness to testify to the falsehood of the fact sworn to; if the jury believe that the written evidence contained in the defendant's letters and in other documents recognized by him as genuine, proves he made a false and corrupt oath, he may be convicted. The case is stated in the opinion of the Court. Gilpin, Attorney General for the United States. Maxwell, contr&,. Mr. Justice Wayne delivered the opinion of the court. This cause has been sent to this court, upon a certificate of division of opinion between the Judges of the Circuit Court for the southern district of New York. The defendant was indicted for perjury, in falsely taking and swearing to the " owners' oath, in cases where goods have been actually purchased ; " as prescribed by the 4th section of the Sup- plementary Collection Law of the 1st March 1823. 3 Story's Laws, 1883. The indictment charged the perjury to have been committed on 20th April 1837, at the custom-house in New York, on the im- portation of certain woollen goods, in the ship Sheridan from Liverpool, shipped to the defendant by John Wood of Saddle- worth, England. There were two counts in the indictment. The first count charged the perjury in swearing to the truth of the entry of the goods, and averred that the actual cost of the goods was not truly stated in the entry ; that it was known to the defendant that they cost more than was there stated, and that, on entering them, he intentionally suppressed the true cost, with intent to defraud the United States. The second count charged the perjury in swearing to the truth of the invoice produced by the defendant at the time of the entry ; and contained similar averments as to its falsity and the intention of the defendant. ' 14 Peters, 430 ; 13 Curtis's Reports of Decisions in the Supreme Court of the United States, 576. 68 LEADING CRIMINAL CASES. In the progress of the trial, it appeared in evidence that the goods in question had been shipped to the defendant by his father, John Wood of Saddleworth, England, in March 1837 ; and that, in the invoice produced by the defendant at the time of entry, and referred to in the oath, the goods in question were represented to have been bought by the defendant of said John "Wood. It also appeared, that for several years before, and for some time after, the importation by The Sheridan, the defendant had been in the habit of receiving woollen goods from his father, which were entered in the custom-house in the city of New York, upon the oath of the defendant, as owner, and upon the production of invoices representing the goods to have been sold to the defendant by the said John Wood. It appeared from the testimony of the inspectors of the customs, that the packages designated for inspection, according to their ex- amination and judgment, were not valued in the invoices beyond the actual value of similar goods imported by other persons. No witnesses were produced on the part of the prosecution, to testify to the actual cost of the goods in question, at the time and place when and where they were purchased. But the counsel for the United States, to prove the charge in the indictment, to wit, that the goods in question actually cost, to the knowledge of the defendant, more than the prices stated in the invoice, offered and proved an invoice book of John Wood, and thirty-five original letters from the defendant, Samuel R. Wood, to the said John Wood, written between April 1834, and December 1837 ; and, it was alleged on the part of the prosecution, that this proof disclosed a combination between Samuel R. Wood and John Wood, to defraud the United States, by invoicing and entering goods, ship- ped at less than their actual cost ; and also disclosed that this combination extended to the shipment by The Sheridan ; and that the goods received by that vessel had cost, as defendant knew, when he entered the same, more _than the prices stated' in the invoice produced, and in the entry made by him. The counsel for the defendant objected to the competency of such proof to convict of the crime stated in the indictment ; and insisted that even if an inference of guilt could be derived from such proof, it was an inference from circumstances not sufficient, as the best legal testimony, to warrant a conviction. That the legal testimony required to convict of perjury in this UNITED STATES V. WOOD. 69 case, was the testimony of at least one living witness to disprove the truth of the defendant's oath as to the actual cost of the goods, at the time and place of exportation. That until such proof was adduced, the documentary evidence produced by the counsel of the U-uited States did not constitute the legal evidence upon which the defendant could be convicted of the perjury, charged in the indictment. The Judges were divided in opinion, " whether it was necessary, in order to convict the defendant of the crime charged in the indictment, to produce, on the part of the prosecution, at least one living witness, corroborated by another witness, or by circum- stances, to contradict the oath of the defendant." The rule upon which the defendant's counsel relies will be found in most of the elementary writers and digests of the law, very much in the same words. Blackstone in his Commentaries, vol. IV. p. 256, says : " The doctrine of evidence upon pleas of the crown, is in most respects the same as that upon civil actions. There are, however, a few leading points, wherein, by several statutes and resolutions, a difference is made between civil and criminal cases." Then, proceeding to state the differences made by some of the statutes in cases of treason, followed by a general remark or two, he observes : " But in almost every other accusa- tion, one positive witness is sufficient ; " and afterwards, contest- ing the general accuracy of Baron Montesquieu's reflection upon laws being fatal to liberty, which condemn a man to death in any case upon the deposition of a single witness, he adds : "In cases of indict- ment for perjury, this doctrine is better founded, and there our law adopts it, for one witness is not allowed to convict a man indicted for perjury, because then there is only one oath against another." In Viner, vol. 16, p. 328, Perjury, K. : " Presumption is ever to be made in favor of innocence ; and the oath of the party will have regard paid to it till disproved. Therefore, to convict a man of per- jury, probable or credible evidence is not enough ; but it must be a strong and clear evidence, arid more numerous than the evidence given for the defendant, for else it is only oath against oath. A mistake is not enough to convict a man of perjury ; the oath must not only be false, but wilful and malicious. 10 Modern, 193." In Hawkins's Pleas of the Crown, vol. 2, ch. 46, p. 91 ; vol. 2, p. 591, § 6, Curwood's ed., "On an indictment for perjury, the evidence of one witness is not sufficient, because 70 LEADING CRIMINAL CASES. then there ■would only be one oath against another." Citing 10 Modern, 193, 'To convict a man of perjury, there must be strong and clear evidence, and more numerous than the evidence given for the defendant.' It does not appear to be laid down, that two witnesses are necessary to disprove the facts sworn to by the defendant ; nor does that seem to be absolutely requisite. But at least one witness is not sufficient, and, in addition to his testimony, some other independent evidence ought to be adduced." In Arclibold's Criminal Pleading, 156, it is said : " Upon an indictment for perjury there must be two witnesses ; one alone is not sufficient, because there is in that case only one oath against another. 10 Modern, 193. But if the assignment of perjury be directly proved by one witness, and strong circumstantial evidence be given by another, or be established by written documents, this would perhaps be sufficient; although it does not appear as yet to have been so decided. Eex v. Lee, MS., 2 Russell on Crimes, 545. Also, if the perjury consist in the defendant having sworn contrary to what he had before sworn upon the same subject, this is not within the rule mentioned ; for the effect of the defendant's oath in the one case is neutralized by his oath in the other ; and proof by one witness will therefore make the evidence against the defendant preponderate." In 7 Dane's Abridgment, 82, citing Blackstone, it is said : " It has been decided, that one witness is not allowed to convict a man indicted for perjury, because there is only oath against oath." — " On a trial for perjury, the oath will be taken as true, until it can be disproved ; and therefore the evidence must be strong, clear, and more numerous, on the part of the prosecu- tion than that on the defendant's part ; for the law will not permit a man to be convicted of perjury, unless there are two witnesses at least." For which is cited 1 Brown Ch. Rep. 419 ; Crown C. C. 625, 626. In the third volume of Starkie's Law of Evidence, p. 1144, it is said : " It is a general rule, that the testimony of a single witness is insuffi- cient to warrant a conviction on a charge of perjury. This is an arbitrary and peremptory rule, founded upon the general apprehen- sion that it would be unsafe to convict in a case where there is merely the oath of one man to be weighed against that of another. Nevertheless, it very frequently happens, in particular cases, that the testimony of a single witness preponderates against the united testimony of many." In Vol. I. 899, the same writer UNITED STATES V. WOOD. 71 says : " So in the case of perjury, two witnesses are essential ; for otherwise there would be nothing more than the oath of one man against that of another, upon which the jury could not safely convict." In 2 Russell on Crimes and Misdemeanors, 648, 7th Amer. ed., it is said : " The evidence of one witness is not sufficient to convict the defendant on an indictment for perjury, as in such case there would be only one oath against another. 10 Modern, 193." But Russell gives several exceptions to the application of the rule, resting upon principles clearly covering the conclusion to which the court has come upon .the question before it. In Phillipps's Evidence, the rule is also given as it is laid down in other writers ; and the case in 10 Modern, 193, is referred to. It may be found, too, repeated in many of the volumes of the English and American Reports, as well as in the case of The State v. Hay- ward, 1 Nott & M'Cord, 546, cited by the defendant's counsel. The cases collected in 13 Petersdorff's Ab. Perjury, E. affirm the same rule. It must be conceded, no case has yet occurred in our own or in the English courts where a conviction for perjury has been had without a witness speaking to the corpus delicti of the defend- ant, except in a case of contradictory oaths by the same person. But it is exactly in the principle of the exception, which is by every one admitted to be sound law, that this court has found its way to the conclusion that cases may occur when the evidence comes so directly from the defendant that the perjury haay be proved without the aid of a living witness. These citations have been made with the view of placing the position contended for by the defendant's counsel in its most positive form, and to show that the conclusion to which the court has come has not been without a due consideration of the rule. It is said to be an inflexible rule of the common law, applicable to every charge of perjury, that it cannot be changed but by the legislative power ; that until some statutory change is made, courts must enforce it; that though other kind of evidence, and that relied upon by the prosecution in this case, may establish a case of false swearing, it will not suffice to convict for perjury ; in short, that a living witness is in every case indispensable. We do not think any change in the rule necessary. The ques- tion is, when and how the rule is to be applied, that it may not, from a technical interpretation, or positive undeviating adherence 72 LEADING CRIMINAL CASES. to words, exclude alFother testimony as strong and conclusive as that which the rule requires. It is a right rule founded upon that principle of natural justice which will not permit one of two persons, both speaking under the sanction of an oath, and presump- tively entitled to the same credit, to convict the other of false swearing, particularly when punishment is to follow. But in what cases is the rule to be applied ? To all, where, to prove the perjury assigned, oral testimony is exclusively relied upon ? Then oath against oath proves nothing, except that one of the parties has sworn falsely as to the fact to which they have sworn differently. There must then be two witnesses, or one witness corroborated by circumstances proved by independent testi- mony. If we will but recognize the principle upon which circum- stances in the case of one witness are allowed to have any weight, that principle will carry us out to the conclusion, that circum- stances, without any witness, when they exist in documentary or written testimony, may combine to establish the charge of per- jury ; as they may combine, altogether unaided by oral proof, except the proof of their authenticity, to prove any other fact con- nected with the declarations of persons, or business of human life. That principle is, that circumstances necessarily make up a part of the proofs of human transactions ; that such as have been reduced to writing, in unequivocal terms, when the writing has been proved to be authentic, cannot be made more certain by evidence aliunde ; and that such as have not been reduced to writing, whether they relate to the declarations or conduct of men, can only be proved by oral testimony. If it be true, then, and it is so, that the rule of a single witness, being insufficient to prove perjury,, rests upon the law of a pre- sumptive equality of credit between persons, or upon what Starkie terms, the apprehension that it would be unsafe to convict in a case where there is merely the oath of one man to be weighed against that of another ; satisfy the equal claim to belief, or remove the apprehension by concurring written proofs, which existed, and are proved to have been in the knowledge of the person charged with the perjury when it was committed, especially if such written proofs came from himself, and are facts which he must have known, because they were his own acts ; and the reason for the rule ceases. It can only then be an arbitrary and peremptory rule, as Starkie says it is, when it is applied to cases in which oral testimony is exclusively relied upon to prove perjury. UNITED STATES V. WOOD. 73 And such we will perceive to have been the apprehension of this rule ; and if we will scrutinize its chronology, we cannot fail to see how truth has grown as cases have occurred for its application. At first, two witnesses were required to convict in a case of per- jurjj both swearing directly adversely from the defendant's oath. Contemporaneously with this requisition, the larger number of witnesses on one side or the other prevailed. Then, a singte wit- ness, corroborated by other witnesses, swearing to circumstances bearing directly upon the imputed corpus delicti of a defendant, was deemed sufficient. Next, as in the case of Eex v. Knill, 5 Barne- wall & Alderson 929 note, with a long interval between it and the preceding, a witness who gave proof only of the contradictory oaths of the defendant on two occasions, one being an examination before the House of Lords, and the other an examination before the House of Commons, was held to be sufficient. Though this principle has been acted on as early as 1764, by Justice Yates, as may be seen in the note to the case of The King v. Harris, 5 Barnewall & Alderson, 937, and was acquiesced in by Lord Mansfield, and Justices Wilmot and Aston, we are aware that in a note to Rex v. Mayhew, 6 Carring- ton & Payne, 315, a doubt is implied concerning the case decided by Justice Yates ; but it has the stamp of authenticity, from its having been referred to in a case happening ten years afterwards, before Justice Chambre, as will appear by the note in 5 Barnewall & Alderson, 937. Afterwards, a single witness, with the defend- ant's bill of costs (not sworn to) in lieu of a second witness, delivered by the defendant to the prosecutor, was held sufficient to contradict his oath ; and in that case Lord Denman says : " A letter written by the defendant, contradicting his statement on oath, would be sufiicient to make it unnecessary to have a second witness." 6 Carrrngton & Payne, 315. All of the foregoing modifi- cations of the rule will be found in 2 Russell, 648, 7th Amer. ed., and that respecting written documents is stated in Archbold, 157, in anticipation of the case in 6 Carrington & Payne, 315. We thus see that this rule, in its proper application, has been expanded beyond its literal terms, as cases have occurred in which proofs have been offered equivalent to the end intended to be accomplished by the rule. In what cases, then, will the rule not apply ? Or in what cases may a living witness to the corpus delicti of a defendant be dispensed with, and documentary or written testimony be relied 74 LEADING CRIMINAL CASES. upon to convict? We answer, to all such where a person is charged with a perjury, directly disproved by documentary or written testimony springing from himself, with circumstances showing the corrupt intent. In cases where the perjury charged is contradicted by a public record, proved to have been well known to the defendant when he took the oath ; the oath only being proved to have been taken. In cases where a party is charged with taking an oath, contrary to what he must necessarily have known to be the truth, and the false swearing can be proved by his own letters, relating to the fact sworn to, or by other written testimony existing and being found in the possession of a defend- ant, and which has been treated by him as containing the evidence of the fact recited in it. Let us suppose a case or two, iii illustration of the positions just laid down. A defendant, in two answers to a bill in equity, swears un- equivocally to a fact, and as positively against it. A document is produced, executed by himself, decisive of the truth of the fact. In such a case, can a living witness be wanted ; or could any number of living witnesses prove more certainly the false swear- • ing, than it would be proved by the document and the defendant's contradictory oaths ? Or, take the case of defendant being sued in equity, to recover from him the contents of a lost bond. In answer to a call upon him to say whether he had or had not made such a bond, he swears that he never had made such a bond. The bond is afterwards found and proved; is not his answer, then, upon oath, disproved by a circumstance, stronger than words can be, coming from the mouth of man ? Again, suppose a person, in order to obtain a right under a statute, is required to take an oath to a fact which is the mutual act of himself and another, and which from its nature is unequiv- ocal. He swears contrary to the fact. Subsequently, his letters, written before and after his oath, are found ; which disclose not only the real fact, but a general design to misrepresent facts of the same kind, and a book or other written paper is produced, bearing directly upon the fact, from its being the original of the transaction reduced to writing contemporaneously with its occur- rence, and recognized by the defendant to be such, though it is in the handwriting of another ; will not the defendant's recognition of it, with the auxiliary evidence of the letters, without a living UNITED STATES V. WOOD. 75 witness to speak directly to the corpus delicti of the defendant, justify the whole being put before a jury, in a case of perjury, for them to decide whether the defendant has sworn falsely and cor- ruptly ? In such a case, if the person was called, in whose hand- writing the book or other written paper was, it might happen that he had only been the recorder of the transaction at the instigation of one of the parties to it, without his ever having had any com- munication with the other respecting its contents. The witness then would only prove so much, without proving any thing which bore upon the charge of false swearing. But when the defendant himself has recognized the book or writing as evidence of his act, and such recognition is proved, there is no rule of evidence which requires other proof, beyond his admission, to prove the contents of the book or paper to be true. But suppose the book or written paper to be also in the handwriting of the defendant, and that several of his letters confirm the fact that he has sworn contrary to the contents of the first, as all the evidence comes from himself, we cannot doubt it would be right to place the whole before a jury, for it to judge what was the truth of the fact, and whether the defendant had sworn falsely and corruptly. We will now proceed to examine the case before us, to see if it fall within the principles and illustrations we have given. The defendant is indicted under the Act of Congress of 1st March 1823 (3 Story, 1883) for falsely and corruptly taking the owners' oath in cases where goods have been actually purchased. It must be kept in mind, that this oath can only be taken in cases of goods imported from foreign countries. It places the importer, then, in a condition to commit fraud in the misrepresentation of the price he has given for the goods, with only an accidental possi- bility on the part of the United States ever being able to detect it by the evidence of the person from whom the importer has made the purchase. The importer is required to swear that the invoice produced by him, contains a just and faithful account of the actual cost of the goods ; and that he has not in the invoice concealed or suppressed any thing whereby the United States may be defrauded of any part of the duties lawfully due on the goods, &c. The oath does not require from the owner the value of the goods, but the cost to him. There is nothing in it relating to the quality of the goods, but simply the cost or price paid by the importer, as owner. The 76 LEADING CRIMINAL CASES. defendant, in his entry, did it upon an invoice sworn to by him, to contain a just and faithful account of the actual cost ; that there was nothing in it concealed or suppressed. He is charged with having sworn falsely in respect to the cost of the goods contained in the invoice, by which he made his entry of them. To maintain the charge, the United States must prove that he paid a larger price. The best evidence, it is admitted, must be introduced to establish that fact. What is the best evidence in respect to its quality, as distinguished from quantity or measure ; it being in the former sense that the best evidence is required ? It is, that secondary or inferior evidence shall not be substituted for evidence of a higher nature, which the case admits of. The reason of the rule is, that an attempt to substitute the inferior for the higher, implies that the higher would give a different aspect to the case of the party introducing the lesser. 1 Russell, 487. " The ground of the rule is a suspicion of fraud." But before the rule is applied, the nature of the case must be considered, to make a right application of it ; and if it shall be seen that the fact to be proved is an act of the defendant, which, from its nature, can b^ concealed from all others except him whose co-operation was neces- sary before the act could be complete, then the admissions and declarations by the defendant, either in writing or to others, in relation to the act, become evidence. It is no longer a question of the quality, but of the quantity of evidence, when it is said, as it is in this case, that his associate in the transaction should be in- troduced. For instance, we will suppose that the letters of the defendant in this case speak of the cost of the goods in the invoice, to which the defendant swore, and that they show the goods did cost more than they are rated at in the invoice ; the quality of the evidence is of that character that it cannot be inferred that superior evideijce. exists to make that fact uncertain. Unless such infer- ence can be made, the evidence offered is the best evidence which the nature of the case admits. The evidence is good under the general principle that a man's own acts, conduct, and declarar tions where voluntary, are always admissible in evidence against him. So in respect to the invoice book of John Wood, containing an invoice of the goods enumerated in the invoice, to which the defendant swore the owners' oath ; in the first of which the goods are priced higher in the sale of them to the defendant. If the UNITED STATES V. WOOD. 77 letters show the hook to have been recognized by the defendant as containing the true invoice, his admission supersedes the necessity of other proof to establish the real price given by him for the goods ; and the letters and invoice book, in connection, preponder- ate against the oath taken by the defendant, making a living witness to the corpus delicti, charged in the indictment, unnecessary. All has been done in the case that can be done to intercept such evi- dence as would tend to prejudice or mislead ; and the case must then be confided to the good sense and integrity of the jury to determine upon the sufficiency of the evidence to convict; the court charging the jury that the evidence offered is of that char- acter which supersedes the necessity of introducing a living witness to prove the perjury charged in the indictment. Let it then be certified to the court below, as the opinion of this court, that, in order to convict the defendant of the crime charged in the indictment, it is not necessary, on the part of the prosecution, to produce a living witness, if the jury shall believe the evidence from the written testimony sufficient to establish the charge that ,the defendant made a false and corrupt oath as to the cost of the goods imported in The Sheridan, enumerated in the invoice, upon which the defendant made an entry, by taking the owners' oath at the custom-house. Mr. Justice Thompson dissenting. The question certified in the' record is, whether it was necessary, in order to convict the defend- ant of perjury, to produce, on the part of the prosecution, at least one living witness, corroborated by another witness, or by circum- stances, to contradict the oath of the defendant. The rule, as we find it laid down in the elementary books on this subject, is, that to convict a party of the crime of perjury, two witnesses are necessary to contradict him as to the fact upon which the perjury is assigned ; and the reason assigned for the rule is, that if one witness only is produced, there will only be one oath against another. This rule, however, in the early adjudged cases, was so modified as to require but one living witness, cor- roborated by circumstances, to contradict the oath of the defend- ant ; and with this modification the rule has remained until the present day. In the present case, the fact on which the perjury was assigned, related to the actual cost of the goods, at the time and place of exportation. This was a simple question of fact, susceptible of 78 LEADING CEIMINAL CASES. proof by witnesses, like any other matter of fact. There was nothing, therefore, growing out of the nature of the inquiry, that rendered the proof by witnesses impossible, so as to take the case out of the rules of evidence, in relation to the crime of perjury. No living witness was produced to contradict the oath of the defendant at the custom-house, as to the original cost of the goods. His letters and certain invoice books were produced to sustain the indictment ; and these might have been sufficient to warrant the jury in convicting the defendant, if such evidence is sufficient to convict a party of the crime of perjury, without the production of at least one living witness. It is, as has been already mentioned, laid down in the books as a technical rule in perjury, that there must be at least one witness and corroborating circumstances to convict of this crime ; that there must be oath against oath, as to the corpus delicti. When the books speak of a witness, they always mean oral testi- mony. It would hardly be considered as correct legal language, to call a letter of the defendant a witness against him. It was evidence, but not evidence by a witness. The rule, as originally laid down in the elementary treatises on evidence, requiring two wdtnesses to contradict the party on the matter assigned as perjury, was so modified or relaxed as not to require two witnesses to dis- prove the facts sworn to by the defendant. But if any material circumstances are proved by other witnesses, in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale, and warrant a conviction. And in England one case occurred, as reported in a note in the fifth volume of Barnewall & Alderson, 929 note, where the evidence consisted of the contradic- tory oaths of the party accused, upon the same matter of fact in which the perjury was assigned. It was held, that in such case there was oath against oath, and the perjury might be assigned upon either ; and that it might be left to the jury to judge of the motive. The authority of this case, however, has been very much doubted. But the present case does not come within that rule, even if we are disposed to follow the English courts on that sub- ject ; for the letters of the defendant cannot certainly be said to be evidence under oath, so as to charge him with contradictory oaths on the fact assigned as perjury. Rules of evidence are rules of law, applicable to the rights of persons as well as to the rights of property ; and parties are entitled to have their rights tested UNITED STATES V, WOOD. 79 and decided by such rules, as much in one case as the other. This rule, however, in perjury, being a technical rule, may in many cases be difficult, if not impracticable, to be carried into execution. If it falls within the proper province of the court entirely to dis- pense with the rule, and put the evidence in perjury upon the same footing as other criminal offences, I should not be disposed to dissent from it ; if, as a new rule, it was made to operate pro- spectively. But if it is intended to affirm the doctrine urged at the bar, that no such rule of evidence ever existed, as to require in the case of perjury at least one living witness, and circumstances in corroboration of his oath, in contradiction to the party charged upon the matter assigned as the perjury, it would, in my judg- ment, be at variance with a rule universally laid down in all the elementary treatises on the subject of evidence ; and as yet never dispensed with, or ever called in question in any adjudication that has fallen under my notice. And that this rule still exists in the English courts, is shown by the late case of Rex v. Mayhew, 6 Carrington & Payne, 315, decided in the year 1834. The perjury in that case was alleged to have- been committed by the defendant (who was an attorney) in an affidavit made by him to oppose a motion made in the Court of Chancery, on behalf of the prosecutor, to refer the defendant's bill of costs for taxation. To prove the perjury, one witness was called ; and in lieu of a second witness, it was proposed to put in the defendant's bill of costs, delivered by him to the prosecutor. It was objected that this was not sufficient, as the bill had not been delivered by the defendant on oath. But Lord Denman C. J. said : " I have quite made up my mind that the bill delivered by the defendant is sufficient evidence, or that even a letter written by the defendant, contradicting his statement on oath, would be sufficient to make it unnecessary to have a second witness." There was no intimation here, that a letter, or any number of letters, from the defendant, contradicting his statement under oath, would dispense with the technical rule in perjury, requiring at least one witness, and corroborating circumstances. The question was, as to what circumstances or evidence would dispense with a second witness. In the present case, it may be difficult and perhaps impracticable to procure any living witness to contradict the oath of the defend- ant. But it is more congenial with the humane principles of our criminal law, that a guilty man should escape, than to convict him 80 LEADING CRIMINAL CASES. upon evidence heretofore considered as insufficient, according to what is admitted to have been the settled rule of law. Answering the question put in the record in the negative, is abolishing that rule, and introducing one entirely new ; and putting the crime of perjury on the sanie footing as any other criminal oifence, with respect to the evidence necessary to convict the accused. If there are any great public considerations calling for such an innovation upon the rule of evidence in cases like the present, let it be altered by the proper tribunal, and under the general rules of evidence applicable to other criminal cases. The evidence derived from the letters of the defendant, is perhaps the best evidence the nature of the case will admit of. But it is an entire misapplication of this general rule to the present case, if there is a special and technical rule in the case of perjury, that there must be at least one living witness, and corroborating circumstances, to convict of that crime. I do not feel myself authorized to dispense with what I understand to be admitted, the heretofore settled rule of evidence, which I consider a rule of law, in the case of perjury ; and to apply this new rule to the present case, by giving it a retrospective operation. I am accordingly of opinion tliat the question put in the record ought to be answered in the affirmative. Eegina v. HooK.i May 1, 1858. Perjury — Corroborative Evidence — Admissions hy Defendant. The prisoner was convicted of perjury. The prisoner, who was a policeman, having laid an information against a publican for keeping open his house after lawful hours, swore on the hearing that he knew nothing of the matter except what he had been told, and that " he did not see any person leave the defendant's house after eleven" on the night in question. The perjury was assigned on this last allegation, and the evi- dence to prove its falsehood was as follows ; The magistrate's clerk proved that the prisoner when laying the information said that he had seen four men leave the house after eleven, and that he could swear to one as W. It was also proved that on two other occasions the prisoner made a similar statement to two other wit- nesses ; that W. and others did in fact leave the house after eleven o'clock on the night • Dearsly & Bell C. C. 606 ; 8 Cox C. C. 5. UNITED STATES V. WOOD. EEGINA V. HOOK. 81' in question ; that on the hearing the prisoner acknowledged that he had offered to smash the case for 80s. ; that he had talked in the presence of another witness of making the puhlican give him money to settle it ; that he had in fact offered to the . publican to settle it for 11. ; and had said' that he had received 10s. to smash the case and' was to have IDs. more. Seld, that the evidence was sufficient to prove the peijury assigned, and that the con- viction was right. The following case was reserved and, stated by Bramwell B. The prisoner was convicted of perjury before me at the last as- sises at Chester. He was a policeman, and laid an information against a publican for keeping open his house after lawful hours on the Fast Day. When called as a witness, on the hearing of the information, he swore he knew nothing of the matter, except what he had been told by another person, and that " he did not see any person leave the defendant's house after eleven " on the night in question. Perjury was assigned on this last allegation. It was material to show it was false ; the following evidence was given. The clerk to the magistrates, who took the information, proved that the prisoner, on laying it, said he had caught the publican ; he (the prisoner) had last night seen four men leave his house after eleven ; that one of them he could swear to ; it was William- son ; he knew him by his coat. It was further proved, by another witness, that the prisoner, on another occasion, made the same statement to him, the witness, viz. that he had seen four persons leave the house after eleven that night ; to one of whom he could swear ; it was Williamson ; he knew him by his coat. It was fur- ther proved, by a third witness named Williamson ; that on a third occasion, the defendant repeated this statement, with the variation " one I can swear to ; it was your brother ; I know him by his coat." It was proved that Williamson and others did leave the house on that night in question, after eleven. It was proved also that, at the hearing of the information, the defendant acknowledged that he had offered to smash the case for 30s. It was proved, by another witness, that when he, the defendant, talked of laying the information, he said he should make the publican give him money to settle it ; a third witness proved that he heard the de- fendant offer to the publican to settle it for 11., saying he was risking perjury ; and a fourth proved that the defendant owned he had received 10s. to smash the case, and was to have 10s. more. It was objected there was no evidence to go to the jury ; that the VOL. II. 6 82 LEADING CEIMINAL CASES. only witness against the prisoner was himself ; and that there was no evidence to show his unsworn statements were not false. The prisoner wa^ convicted, and sentenced to one year's imprisonment and hard labor ; but, doubts having been expressed on -the case, I have to request the opinion of the Court of Criminal Appeal thereon. G. Beamwell. This case was argued on the 24th April 1858, before Pollock C. B., WiGHTMAN J., WiLLES J., Bramwell B. and Byles J. H. Lloyd appeared for the Crown, and M'Intyre for the pris- oner. M'Intyre, for the prisoner. It is clearly established that to sup- port a conviction for perjury the falsity of the oath must be proved directly by two witnesses at least ; or there must be one witness and strong corroborative evidence to confirm him. The rule, that one witness is not sufficient because there would be only one oath against another, is laid down in Regina v. Muscot, 10 Modern, 193, in which Parker C. J. said : " To convict a man of perjury, a prob- able, a credible witness is not enough ; but it must be a strong and clear evidence, and more numerous than the evidence given for the defendant ; for else there is only oath against oath." This rule has been confirmed and acted upon in subsequent cases ; and, although it has been held that one witness and corroborative evi- dence will do, Coleridge J. in Champney's Case, 2 Lewin C. C. 258, said : " One witness in perjury is not sufficient, unless supported by circumstantial evidence of the strongest kind ; indeed Lord Tenterden C. J. was of opinion that two witnesses were necessary to a conviction." The same learned judge, speaking of this rule in Regina v. Yates, Carrington & Marshman, 132, said : " The rule that the testimony of a single witness is not sufficient to sus- tain an indictment for perjury is not a mere technical rule, but a rule founded on substantial justice ; and evidence confirmatory of that one witness in some slight particulars only is not sufficient to warrant a conviction." The rule of law as to this is the same in Scotland as in this country. In Alison's Criminal Law of Scot- land, 481, it is said : " A party cannot be convicted of perjury upon the evidence merely of persons or subsequent declarations emitted by him inconsistent with what he has sworn ; because in dubio it must be presumed that what was said under the sanction of an oath was the truth, and the other an error or falsehood." UNITKD STATES V. WOOD. REGINA V. HOOK. 83 The perjury assigned in this case is that the prisoner falsely swore " that he did not see any person leave the defendant's house after eleven : " but, although it was proved that persons did leave the house after eleven, there is no evidence beyond the prisoner's own statement, when he was not upon his oath, that he saw any person leave, or that the statement he made when upon oath was false. Not only is there no oath that he did see, but none that he was there and could have seen. Here, there is the prisoner's statement not upon oath against his statement on oath ; and in Rex v. Harris, 5 Barnewall & Alderson, 926, an indictment for perjury was held bad which only alleged that the prisoner had given evidence in the House of Lords directly contrary to that which he had given before the House of Commons. The prisoner's evidence on the hearing really amounts to this, that he knew nothing beyond what was told him by some other person, and the facts proved against him are consistent with his evidence on oath being true, and his state- ments not on oath being false. H. Lloyd, for the Crown. In Regina v. Wheatland, 8 Carring- ton & Payne, 238, it was held that, where a prisoner has, previously to the oath on which perjury is assigned, sworn the contrary on the same matter, proof of the previous oath and other confirmatory evidence of its truth is sufiicient to convict. Here the prisoner's statements, not upon oath, were equivalent to one witness, and it is shown by ample evidence that the statement made by the prisoner, when upon his oath, was false, and that his previous statements not upon oath were true. There is in fact an admission, abimdantly proved, and that brings this case within the ruling in Regina v. Wheatland. In Rex v. Mayhew, 6 Carrington & Payne, 315, it was held that to prove perjury it is sufiicient, if the matter alleged to be falsely sworn be disproved by one witness, if, in addition to the evidence of that witness, there be proof of an account or a letter written by the defendant contradicting his statement on oath. M'Intyre, in reply. The decision in Rex v. Mayhew does not affect this case, because here there is no witness who proves the falsehood of the defendant in the allegation on which perjury is assigned. There is no evidence to show that the defendant did in fact see, or even that he had the opportunity of seeing, the per- sons come out of the house. Cur. adv. vult. The judgment of the court was delivered on 1st May 1858. Pollock 0. B. We are all of opinion that this conviction is 84 LEADING CRIMINAL CASES. right. The prisoner swore to a fact, and it was proved by more than one witness that on other occasions he had made statements, not upon oath, inconsistent with the truth of his statement upon oath on which perjury was assigned. It was said in the argument against the conviction that a man could not be convicted of per- jury merely by opposing his oath at one time to his oath at another time ; and probably a conviction obtained in that way would not be considered right, unless there were also evidence by which the truth of the two statements might be distinguished — evidence to show that one was true and the other false ; but there certainly is a direct authority that such a conviction would be good. In Rex V. Harris, 5 Barnewall & Alderson, 926, the defendant was charged with perjury upon a count in which his evidence upon oath before a committee of the House of Commons, and his contradictory evi- dence before the House of Lords was set out, and the indictment proceeded to say : " and so the jurors aforesaid do say that the said E. H. did commit wilful and corrupt perjury ; " but there was no averment as to which of these two statements upon oath was false ; and the Court of. Queen's Bench held that the count was bad in arrest of judgment. That indictment was, I believe, drawn by my brother Crompton from an old precedent ; but the court said it would not do, because it was not sufficient to charge that on one occasion or the other the defendant committed perjury, but you must allege, and the jury must find, on which occasion he did commit it ; and that if such a count was held good a person would be twice in peril of the pains of perjury on the same subject-matter. I believe that it was in a recent case held that in an indictment for murder it was not sufficient to allege that the death was caused either by burning or stabbing the deceased, although it might be quite clear that the death was caused in the one way or the other. I remember discussing that case with Parke B., now Lord Wens- leydale, and he was of opinion that if one count alleged the death tp be by stabbing and another by burning, and six jurymen believed that the death occurred as alleged in one count, and the rest that it occurred as alleged in the other, the accused must escape. So in an indictment for perjury, where one oath of the prisoner is opposed to another, it must be stated, and the jury must find, which is the false oath ; and all that Rex v. Harris decides is that the charge cannot be alleged in an alternative way ; but in Rex v. Knill,^ arising out of the same transaction, the prisoner was convicted ' In note to Rex v. Harris, 5 Barnewall & Alderson, 929. UNITED STATES V. WOOD. BEGINA V. HOOK. 85 npon counts charging the perjury specifically to have been before the House of Lords, the only evidence being the proof of the two contradictory oaths, and the court held the evidence sufi&cient, and refused an application by Mr. Jones (afterwards Sergeant Atcherly) for a new trial. There is a note in the same case of a precedent, and some observations of Chambre J. in his Precedent Book,^ which favors the view that, where the perjury assigned is upon one of two oaths, proof of the other oath will be sufficient ; and it is there stated that a conviction upon this principle took place at the Lancaster Summer Assizes in 1764, in a case tried before Yates J. In that case a man had made an information on oath before a justice, that three women were concerned in a riot at his mill, and after- wards at the sessions he was examined concerning these women, (and having been tampered with in their favor) he then swore that they were not in the riot. There was no evidence on tlie trial to prove that the women were in fact in the riot (the perjury being assigned on the defendant's oath that they were not) ; but the defendant's own information on oath being produced and read, whereby he had sworn that they were in the riot, the judge thought it sufficient to convict him, and he was convicted and transported. After the trial Lord Mansfield C. J. and Wilmot and Aston JJ., to whom Yates J. stated the reasons of his judgment, concurred in his opinion. Then there is the case of Regina v. Wheatland, 8 Carrington & Payne, 238, in which this doctrine has been a little varied.^ There, it being proposed to prove an indictment for per- jury assigned on the evidence of the prisoner, on a trial at the quarter sessions, merely by the deposition of the prisoner before the committing magistrate, Gurney B. directed the jury that proof of the defendant having given contradictory evidence on two different occasions was not sufficient, and that they must see whether there was such confirmatory evidence of the defendant's deposition before the magistrate as proved that the evidence given by the defendant at the quarter sessions was false. In the pres- ent case it was proved by three witnesses that the prisoner had made statements to them contradictory of what he swore at the hearing, and I own I can take no distinction between statements made' by the defendant upon oath and statements made by him seriously and on several occasions not upon oath. Then, in addi- ' Rex V. Harris, 6 Barnewall & Alderson, 937-940. " See Kegina v. Gaynor, Jebb C. C. 262. 86 LEADING CRIMINAL CASES. tion to the statements of the defendant himself, there are strong confirmatory circumstances. The defendant offering to smash the case for one pound ; his admitting that he had received ten shil- lings and was to have ten shillings more ; and his talking of mak- ing the publican pay to settle it, are strong evidence to show that what he stated upon his oath was false, and that his statements not upon oath were true. For these reasons (for which I am respon- sible) I think the conviction was right, even assuming that Rex v. Knill could not now be safely acted upon, though that conviction was supported by the Queen's Bench as constituted in the time of Lord Tenterden, and was also supported, according to the authority of Chambre J., by the Court of Queen's Bench in the time of Lord Mansfield. Probably, no judge would now direct a conviction upon such evidence as was deemed sufficient in Rex v. Knill with- out confirmatory circumstances ; but in this case the conviction is supported by the confirmatory evidence of several witnesses, and it must be affirmed. WiGHTMAN J. In order to convict a defendant of perjury it is necessary that there should be two witnesses, for this obvious reason, that if there is but one oath against another oath it is al- together in doubt which is true, and therefore two witnesses are required to contradict the oath on which perjury is assigned. But it is not necessary that there should be two independent witnesses to contradict the particular fact, if there be two pieces of evidence in direct contradiction. Here one piece of evidence is, that the defendant himself is proved to have made statements directly con- trary to his statement upon oath ; that alone would not do : but in addition to that you have the oaths of other witnesses which go to show that that which he stated when not upon oath was true, and therefore you have two pieces of evidence. I ought rather to put it that, instead of two witnesses being necessary to prove each fact, you must have the evidence of two persons giving evidence in con- tradiction to what has been sworn to by the defendant ; as, one witness who could prove, as in this case, that on other occasions the defendant had stated that which was diametrically opposed to that which he has sworn, and the other witness to give evidence of that which is directly opposite. You have therefore two con- tradictions ; you have the contradiction of the defendant himself as deposed to on oath by one witness, and you have the contradic- tion of another independent witness who speaks to the falsehood UNITED STATES V. WOOD. EEGINA V. HOOK. 87 of the fact — you therefore have two independent contradictions on oath. It therefore seems to me that there was sufficient evi- dence, and I am of opinion tliat the conviction is right. WiLLES J. I am of tlie same opinion. Bramwell B. The question in the case is, whether any matter be sufficiently proved which, if proved, would be enough to convict the prisoner of perjury. Now the matter proved was his own statement over and over again, which if true showed that what he swore was false. Well, were those statements not upon oath true, or was his statement upon oath true ? The answer to that is, there is abundant evidence by which you can tell, because there is plenty of evidence to induce you to give a preference to the unsworn statement over the sworn one. Well then the matter which, if true, though contradicted, is enough to convict, is sufficiently proved by other circumstances, and that is suffi- cient to support the conviction. As I said before, if there be two opposing oaths only you could not properly convict a man of per- jury, because the only legitimate conclusion to be drawn is that one was false. But when the oath complained of is sufficiently established, and you have other evidence to show that the oath not complained of was true, then it follows that the oath com- plained of was a false one. Whether in the case of two contradic- tory oaths the truth of the oath not complained of would have to be proved by two witnesses, I do not undertake to say at the present moment. The case of Rex v. Knill goes to show that it would not. Here you have a witness to prove that the defendant stated that he had seen a man come out of the house, and that proves that which, if true, goes to show that the defendant was guilty of perjury. Then, that that was true is proved by other witnesses, so that the matter is not left in doubt. I think therefore the conviction was right. Btles J. The rule of law requiring two witnesses to prove an assignment of perjury reposes on two reasons : first, that it would often be dangerous and always unsatisfactory to convict the de- fendant when there is but the oath of one man against the oath of another ; secondly, that in all judicial proceedings all witnesses, even the most honest, would be constantly exposed to the peril, annoy- ance, and oppression of indictments for perjury if the single oath of another man, without any confirmatory evidence, might in point of law suffice to convict. 88 LEADING CRIMINAL CASES. But the letter and spirit of the rule, and both the reasons for it, appear to me to be satisfied where, of two distinct admissions of the defendant inconsistent with his innocence, one is proved by one witness and one by another. It has been already held that the testimony of one witness depos- ing to the defendant's admission on oath, if there is corroboration, is enough : Regina v. Wheatland, 8 Carrington & Payne, 238. But if a single witness deposing to an admission of the defendant be one witness within the rule, then another witness deposing to another admission, must surely be a second witness within the same rule. Indeed, where the reasons for the rule requiring two witnesses in perjury do not exist, the rule itself no longer holds ; and there- fore the Court of Queen's Bench, in Rex v. Knill, have gone so far as to decide that, where the only evidence of the defendant's guilt is his own admission on oath (perjury being properly assigned in the indictment), the defendant may be convicted on the single testimony of one witness swearing to this contradictory deposition of the defendant himself. For these reasons I think the conviction right. Conviction affirmed. It seems to have been formerly thought that in proof of the crime of per- jury two witnesses were necessary ; but this strictness if it ever was the law, has long since been relaxed. In a very recent case, Erie C. J. stated the true principle of the rule in his usual lucid manner : " It is well ascertained law that, upon an indictment for perjury, it is necessary to have more than the evidence of one witness alone ; for that is but the oath of one against one, which leaves the matter even, and entitles the prisoner to an acquittal. The prosecution must do more than that. They must turn the scale by corroborating their witness. The degree of corroboration, however, which is necessary is not definable ; and any attempt to define it will prove illusory. It must be something which, in the opinion of the tribunal before which it is brought, is deserving of the name of corroboration." Regina v. Shaw, Leigh & Cave C. C. at p. 690. And see Jorden V. Money, 5 House of Lords Cases, at pp. 231, 232, per Lord Brougham; The State V. Molier, 1 Devereux, 263. In Commonwealth v. Parker, 2 Cushing, 222, the principle discussed in the principal cases, was clearly stated by Mr. Justice Dewey, as follows: "The question of more difficulty in the present case is that arising upon the other point, namely, the competency and sufficiency of the evidence relied upon to establish the falsity of the testimony given by the defendant. If we are to adopt the rule sometimes stated as the proper one upon this point, to wit, that there must be two witnesses swearing directly to the fact, this objection might be strongly relied upon. A brief reference to a few leading authorities will clearly show, that this rule, if it ever existed, has been much qualified. The rule, as stated by Parker C. J. in the case of The Queen u. Muscot, 10 Modern, 193, is UNITED STATES V. WOOD. EEGINA V. HOOK. 89 as follows : ' There is this difiFerence between a prosecution for perjury and a bare contest about property, that in the latter case the matter stands indifferent ; and therefore a credible and probable witness shall turn the scale in favor of either party : but in the former, presumption is ever to be made in favor of inno- cence; and the oath of the party will have a regard paid to it, until disproved. Therefore, to convict a man of perjury, a probable, a credible, witness is not enough ; but it must be a strong and clear evidence, and more numerous than the evidence given for the defendant ; for else there is only oath against oath.' In the case of Woodbeck v. Keller, 6 Cowen, 118, it is said, that if there be only one witness, and circumstances strongly corroborative, it is enough. In The State V. Hayward, 1 Nott & M'Cord, 547, it was held, that two witnesses are not necessary to disprove the fact sworn to by the defendant ; but when there is but one witness, some other evidence must be adduced in addition to his testi- mony. The rule, as stated by Mr. Greenleaf, 1 Greenl. Ev. § 257, is this : ' The evidence must be something more than sufficient to counterbalance the oath of the defendant and the legal presumption of his innocence. But it is not pre- cisely correct to say, that these additional circumstances must be tantamount to another witness. The same effect being given to the oath of the prisoner, as though it were the oath of a credible witness, the scale of evidence is exactly balanced, and the equilibrium must be destroyed by material and independent circumstances, before the party can be convicted : ' — thus adopting the views of the court as held in 6 Cowen, above cited. The case of the United States v. Wood, 14 Peters, 440, has gone, perhaps, still further ; holding that no living witness, not even one, is absolutely requisite ; but that documentary or written evidence may be of such a character, as to produce that high degree of evidence, requisite to overcome the oath of the defendant and the presumption of innocence. The treatises of Phillipps, and Russell, 1 Phillipps Ev. 116, and 2 Russell, 548, seem fully to sustain the general rule, that where there are corroborating circum- stances, proved by independent evidence, the proof is sufficient. The case of Rex V. Mayhew, 6 Carrington & Payne, 315, seems to be quite analogous to the present, as to the point there settled, namely, that ' even a letter, written by the defendant, contradicting his statement upon oath, would be sufficient to make it unnecessary to have a second witness.' Without extending these citations fur- ther, we may safely assume, that the rule requiring two living witnesses, in con- tradiction to the statement of the defendant, if it ever existed, has long since been relaxed ; and that all that is requisite to a conviction of perjury is, that, in addition to one directly opposing witness, there should be established, by inde- pendent evidence, strong corroborating circumstances, of such a character as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence.'' An indictment for perjury alleged that in the month of June 1851, the prose- cutor had distrained upon the prisoner for certain arrears of rent, and that the prisoner on a trial at nisi prius falsely swore that there was only one quarter's rent due at the time of the said distress. On the trial for perjury the prosecutor positively swore to the fact of there being iive quarters' rent due at the time of the said distress ; and produced his books by which he refreshed his memory ; and for the purpose of corroborating his statement and showing by the oaths of two witnesses the falsity of the matter sworn to, the son of the prosecutor de- 90 LEADING CRIMINAL CASES, posed to a conversation with the prisoner in August 1850, in which the prisoner admitted that three or four quarters of the said rent were then due. The jury convicted ; but, upon a case reserved, the Judges were unanimously of opinion that this was not sufficient corroboration. There was nothing in the evidence of the son relevant to the issue. There was a year's interval between the transac- tion he spoke of and the time when the distress was made, and the money might have been paid intermediately. The oath of the son was quite as consistent with the oath of the prisoner as with that of the prosecutor. In perjury there must be something to induce the jury to believe one rather than the other. In this case there was no such evidence. Regina v. Boulter, 2Denison C. C. 396; 3 Carrington & Kirwan, 236 ; 6 Cox C. C. 543.' An indictment for perjury committed on the trial of a civil bill alleged that the prisoner, Thomas Towey, falsely swore that " the note produced is not my handwriting, or any part of it, and the name ' Thomas Towey ' as a witness is not in ray handwriting." The note purported to bear the marks of Patrick and James Towey as makers of the note, and had on it, " Witness present, Thomas Towey." The payee of the note could not read, but he identified the note, and swore that he saw Thomas Towey write on the paper, and saw Patrick and James put their marks on it. Another witness proved that he had subpoenaed Thomas Towey to appear at the sessions as a witness, and that the prisoner then said that there was no occasion to test him ; that he would go to prove the note ; and that at a meeting between the parties to try to settle the civil bill, on the payee of the note saying he had James Towey's note, and would take the law on it unless he signed a new one, Thomas said that he had been tested (subpoenaed) to come there, but that there was no occasion to test him ; that he would prove the note. But the note was not produced at this meeting ; and, upon a case reserved, it was held that this evidence was a sufficient corroboration of the evidence of the payee. The prisoner was the only witness to the note, and he could only prove it in his character as a witness, and therefore when he said he could prove it, it came to sufficient evidence that he was the witness to the note. Kegina ». Towey, 8 Cox C. C. 328. In Regina v. Virrier, 12 Adolphus & Ellis, 317 ; 4 Perry & Davison, 161, where there were three assignments of perjury upon evidence relating to one and the same transaction, at one and the same time and place, it seems to have been considered that the jury ought not to convict on one of the assignments, although there were several witnesses who corroborated the witness who spoke to such assignment on the facts contained in the other assignments. The indict- ment stated that the defendant swore that Mr. B. and Mr. C. came to her hus- band's house, that Mr. C. said, "I will give him the £6 at Christmas,'' and Mr. B. shook hands with her, and put something into her hand, and told her to give it to her husband, and that it was a sovereign wrapped up in some paper ; ^ In a recent text-book it is observed: " We apprehend that the old rule and reason of the matter are not satisfied unless the evidence of each witness has an existence and pro- bative force of its own, independent of the other; so that supposing the charge were one in which the law allows condemnation on the oath of a single witness, the evidence of either would form a case proper to be left to a jury ; or at least raise a strong suspicion of the guilt of the defendant." Best on Evidence, § 609, 4th ed. Willes J. in Begina ». Briggs, Dearsly & Bell 0. C. at p. 102, characterized this as " one of the^best books on our laws." UNITED STATES V. WOOD. EEGINA V. HOOK. 91 and Mr. C. told her he should not forget it was in his power to give her husband the £6 at Christmas. The assignments of perjury were, first, that Mr. C. did not say that he would give the £6 at Christmas ; secondly, that Mr. B. did not put a sovereign into the hand of the defendant ; and thirdly, that Mr. C. did not tell the defendant that he should not forget it was in his power to give her husband the £6 at Christmas. Evidence was given in support of all the assignments of perjury. Lord Denman C. J., in summing up, said that as to the second assign- ment the proof lay almost entirely in the evidence of one witness, and therefore he did not see how the jury could convict of the perjury imputed ; but that on the others there was a distinct contradiction of the defendant's testimony by Mr. C, who was supposed to have offered the £6, and several other witnesses ; and he left it to the jury to say whether there was not a strong body of evidence clearly supporting Mr. C's. denial. But where upon an indictment for perjury, alleged to have been committed in making a charge of an unnatural offence, in which the defendant had deposed that he saw the prosecutor committing the of- fence, and saw the flap of his trousers unbuttoned, and that he was there five minutes ; and to disprove this the prosecutor swore that he did not commit the offence, and that his trousers had no flap on ; and to confirm him his brother proved that at the time in question the prosecutor was only absent three minutes, and that the trousers he had on, which were produced in court, had no flap. Patteson J. held that the corroborative evidence was quite sufficient to go to the jury ; and upon a case reserved, the Judges held the conviction right. Kegina v. Gardiner 2 Moody C. C. 95 ; 8 Carrington & Payne, 737. So where perjury was alleged to have been committed by the defendant, who was an attorney, in an affidavit made by him to oppose a motion to refer the defend- ant's bill of costs to taxation, and to prove the perjury one witness was called, and in lieu of a second witness it was proposed to put in the defendant's bill of costs delivered by him to the prosecutor ; it was suggested that this was not suf- ficient, as the bill had not been delivered by the defendant on oath. Lord Den- man C. J.; "I have quite made up my mind that the bill delivered by the defendant is sufficient evidence, or that even a letter written by the defendant, contradicting his statement on oath, would be sufficient to make it unnecessary to have a second witness." Rex v. Mayhew, 6 Carrington & Payne, 315. In Commonwealth v. Parker, 2 Gushing, 222, the charge in the indictment for per- jury, was, that the defendant had testified that no agreement for the payment by him of more than the lawful rate of interest had ever been made between him and a person to whom he was indebted upon certain contracts, it was held that the testimony of the creditor to the existence of such an agreement, corroborated by the letters of the defendant to him, containing a direct promise to pay more than legal interest on a demand then held by such creditor, if the payment could be delayed, and apologizing for a delay which had already taken place in the payment of another demand, and promising to pay a bonus for the delay, was competent and sufficient evidence of the falsity of the statement alleged as the perjury. In Regina«. Shaw, Leigh & Cave G. C. 679 ; 10 Cox C. C. 66, the prisoner was indicted for perjury alleged to have been committed by him before magistrates, when summoned as a witness on behalf of a publican by the name of Kilshaw, who was charged with keeping his house open on a Sunday, at Burton- 92 LEADING CEIMINAL CASES. ' wood, during prohibited hours. The charge of perjury was that the prisoner swore that he was not in Burtonwood on the Sunday, on which a policeman had sworn that he had seen him in Kilshaw's house at a certain hour in the after- noon. For the prosecution, in addition to the evidence of the policeman, one witness swore that he saw the prisoner in Burtonwood, on the Sunday in ques- tion; and another that he saw him close to Kilshaw's house about the time spoken to by the policeman. All of the Judges were of opinion that the evidence of the policeman was sufficiently corroborated. Where a prisoner was indicted for falsely swearing that he had paid J. Bland a certain sum of money on a particular occasion, and Bland swore that he re- ceived the money in packages, and afterwards counted it, and found it £7 short ; and the only corroboration of his statement was by another person, who also counted it, but had not been present when the money was received ; it was held that this was no corroboration at all. Regina v. Braithwaite, 1 Foster & Finlason, 638 ; 8 Cox C. C. 444. Watson B. and Hill J. As reported in Cox it is stated that " the prosecutor took it without counting it, and carried it to a Mrs. Wat- son's, and counted it over." In Foster & Finlason that " the prosecutor took it without counting it, and carried it to an adjacent lane, where he counted a part of it and found it wrong ; he then gave it to a Mrs. Watson, and asked her to count it over." Mrs. Watson was the witness called to corroborate Bland. An indict- ment alleged that the prisoner falsely swore at a petty sessions that D. Rees was the father of her illegitimate child. A witness other than D. Rees proved that the prisoner had said that D. Rees " had never touched her clothes," at a time when she generally denied being in the family way ; and Martin B. thought that though, under some circumstances, such a statement might have been a sufficient corroboration of the evidence of D. Rees, yet this negation was so far a part of the general denial that the jury could not safely convict upon it alone. Regina v. Owen, 6 Cox C. C. 105. If the evidence adduced in support of the crime of perjury, consists of two opposing statements made by the prisoner on oath, one of which is directly at variance with the other, and nothing more, he cannot be convicted. In Mary Jackson's Case, 1 Lewin C. C. 270, Holroyd J. said to the jury : " Although you may believe, that on one or other occasion she swore that which was not true, it is not a necessary consequence that she committed perjury ; for there are cases in which a person might very honestly and conscientiously swear to a particular fact, from the best of his recollection and belief, and from other circumstances, at a subsequent time, be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time. Again, if a person swears one thing at one time, and another at another, you cannot convict where it is not pos- sible to tell which was the true and which was the false.'' And it is to be observed that when a man swears to the best of his recollection, it requires very strong proof to show that he is wilfully perjured. Tindal C. J. in Regina v. Parker, Carrington & Marshman, at p. 645. In Hex V. Mudie, 1 Moody & Robinson, at p. 129, Lord TenterdenC. J. doubted whether the rule, which requires two witnesses, was satisfied by several witnesses, each supporting a separate assignment of perjury, but no two speaking to the same assignment. But the defendant was acquitted on another ground. It has since been held, that the rule that requires two witnesses, or one witness and UNITED STATES V. WOOD. EEGINA V. HOOK. 93 some sufficient corroboration, applies to every assignment of perjury in an indictment. Where, therefore, an indictment contains several assignments of perjury, it is not sufficient to disprove each of them by one witness ; but in order to convict on any one assignment, there must be either two witnesses, or one witness and corroborating evidence, to negative the truth of the matter contained in such assignment. The prisoner was indicted for perjury alleged to have been committed in an affidavit to obtain a criminal information, in which he had sworn that he had paid all his debts except two, as to which there was an explanation, and there were several assignments of perjury averring that he had not paid certain persons who were named (besides the two excepted ones), and such persons proved that they had not been paid, but only spoke to their respective debts not having been paid. Tindal C. J. held that this was not sufficient, and that as to each debt there should be the testimony of two witnesses, or of one witness, and such confirmatory evidence as was equivalent to the testimony of a second witness. Kegina v. Parker, Carrington & Marsh- man, 639. The rule requiring something more than the testimony of a single witness on indictments for perjury, is confined to the proof of the falsity of the matter on which the perjury is assigned. Therefore, the holding of the court, the proceedings in it, the administering the oath, the evidence given by the prisoner (Commonwealth v. Pollard, 12 Metcalf, 226) and, in short, all the facts, exclu- sive of the falsehood of the statement, which must be proved at the trial, may be established by any evidence that would be sufficient were the prisoner charged with any other oflfence. 2 Hawkins P. C. ch. 46, § 10. 3 Russell on Crimes, 86. 4th ed. Moreover, when several facts must be proved to make out an assignment of perjury, each of these facts may, in strict law, be established by the uncontroverted testimony of a single witness. For instance, if the false swearing be that two persons were together at a certain time, and the assign- ment of perjury be that they were not together at that time, evidence by one witness that at the time named the one person was at London, and by another witness that at the same time the other person was in York, will be sufficient proof of the assignment of perjury. Kegina v. Roberts, 2 Carrington & Kirwan, 614, Patteson J. In the course of the argument in Regina u. Boulter, 2 Deni- son C. C. atp. 398, Reginat). Roberts was cited, and CresswellJ. said : " Assume this to be the case ; perjury assigned, that A. B. and C. D. were not together at such a place upon a particular day. You have two witnesses to disprove this. One says, I saw them together in the place ; the other swears that he saw them somewhere else together in the direction of the place, on the same day ; that would tend to prove the fact of their being together in the place in question." And Coleridge J. : " Suppose a man swore that he was not at Plymouth on such a day. One witness swears that he saw him in Plymouth on that day ; and to corroborate his evidence, a person is called who states that he saw him in the railway train between the terminus and Plymouth." The application of this rule is not confined to criminal cases. In an action of slander in accusing a party of perjury, in order to sustain the defence of justifi- cation on the ground of the truth of the charge,*the same amount of evidence is required as on the trial of an indictment. for perjury to warrant a conviction of the defendant. Woodbeck v. Keller, 6 Cowen, 118. Roberts v. Champlin, 14 94 LEADING CRIMINAL CASES. Wendell, 120. In Massachusetts, by statute, a special action on the case lies against a person summoned as a trustee in foreign attachment, who knowingly and wilfully answers falsely, upon his examination on oath. Rev. Sts. ch. 109, § 76. Gen. Sts. ch. 142, § 14. These principles in the law of evidence apply to this class of actions. Laughran v. Kelly, 8 Gushing, 199. Finally, it may be observed that where a statement made by a prisoner is in the nature of an admission that a previous statement on oath is false, it is to be dealt with as a confession, and not as falling within the class of cases discussed in this note. Cessante ratione legis, cessat ipsa lex. See the judgment of Byles J. in Regina v. Hook, ante, p. 88, in the text. Weight v. Clements.^ April 25, 1820. Indictment — Written Instruments. Declaration stated that the defendant published a libel, containing false and scandalous matters concerning the plaintiff, in substance as follows ; and then set out the libel with innuendoes : Sdd, that this was bad on motion in arrest of judgment. The word "tenor" imports an exact copy, and that the libel is set out in words and figures. Declaration stated that defendant, contriving &c. falsely &c. did publish, and did cause and procure to be published, a certain false, scandalous, malicious, and defamatory libel, in the form of a statement, purporting to be written by one William Cobbett, of and concerning the plaintiff, containing amongst other things, certain false, scandalous, malicious, defamatory, and libellous matters, of and concerning the said plaintiif, in substance, as follows ; that is to say : it then proceeded to set out the libel with innuendoes. The plaintiff having obtained a verdict for £500 damages, at the Middlesex sittings after last Michaelmas term, before Abbott C. J., a rule was obtained iu Hilary term for arresting the judgment, on the ground that the declaration was defective in stating the libel to be set out in substance only, and not according to the tenor. And now Sdarlett, Denman, and Ohitty showed cause. This rule was ob- tained on the authority of the case of Newton v. Stubbs, 2 Shower, 435 ; 3 Modern, 71. There the declaration stated the words spoken to be to the effect following, and that was held to be bad in arrest ' 3 Barnewall & Alderson, 503. WRIGHT V. CLEMENTS. 95 of judgment. That case, however, does not apply to the present ; for taking the whole declaration together, it appears that the very words of the libel are set oiit, for there are innuendoes which would be unnecessary, if the declaration purported to set out only the substance or effect. It is sufficient, at all events, after verdict, if the declaration imports to set out the substantial matter of the libel. In The Queen v. Drake, 3 Salkeld, 225, Holt C. J. says : " A libel may be described either by the sense or by the words, and therefore an information charging that the defendant made a writing con- taining such words, is good, and in such a case a nice exactness is not required because it is only a description of the sense and substance of the libel." That is an authority to show that it is sufi&cieut to set out the substance of the libel. In The King v. Bear, 2 Salkeld, 417; 1 Lord Raymond 414, the declaration purported to set out the libel according to the tenor and effect following, and it was held, that although the words to the effect following of themselves might be bad, yet that coupled with the word tenor, which imported a literal copy, they might be rejected. It is not, however, necessary to set out the literal copy of a libel, for the variance of a letter not altering the sense is immaterial, and that shows that it is suf&cient to set out the substance of the libel. Admitting it, however, to be necessary to give in evidence the precise words of the libel, it is sufficient, after verdict, that it should be so stated on the record that there is no positive repug- nancy between the mode of stating it, and the necessity of proving the precise words. Now there is nothing in the words " in sub- stance as follows," which dispenses with the necessity of proof of the very words of the libel ; for the innuendoes show that the plaintiff undertakes to prove the precise words. In the course of the argument, they cited Wood v. Brown, 1 Marshall, 522 ; 6 Taun- ton 169, and Rex v. Leefe, 2 Campbell, 138. Piatt contra. The words "in substance as follows," form a material part of the description of the libel, and cannot, therefore, be rejected. In actions for oral or written slander, it is not suf- ficient to set out the substance, but the very words must be stated upon the record, in order that the court may judge whether they be actionable or not ; if it were sufficient to set out the substance, the verdict of the jury would be conclusive upon that point, and the party would be deprived of his writ of error. In Zenobio v. Axtell, 6 Term R. 162, it was held to be insufficient, in an action 96 LEADING CRIMINAL CASES. for a libel written in a foreign language, to set out the translation, which, if correct, however, would have contained the substance of the libel. Cook v. Cox, 3 Maule & Selwyn, 110, is precisely in point. The declaration there stated that the defendant accused the plain- tiff of being in insolvent circumstances, without setting out the words ; and the court, upon argument, held it to be bad, after verdict, upon principle and authority. This declaration cannot be supported. Abbott C. J. I am of opinion, that in this case the objection must prevail, and that the judgment must be arrested. In actions for libel, the law requires the very words of the libel to set out in the declaration, in order that the court may judge whether they constitute a ground of action ; and unless a plaintiff professes so to set them out, he does not comply with the rules of pleading. The ordinary mode of doing this, is to state, that defendant pub- lished, of and concerning the plaintiff, the libellous matters, to the tenor and effect following. In that case the word " tenor" governs tlie word " effect," and binds the party to set out the very words of the libel. There is another mode of doing it, by stating that defend- ant published the libellous matters following ; that is to say. And in this case, also, it is understood, that the very libel is set out. Here however more words have been introduced into the declara- tion, and the question is, whether the additional words have not varied the sense. The allegation here which has departed from the common form of the precedents is, that the defendant published certain libellous matter, in substance as follows. Now the ques- tion is, whether the words " in substance" do not give a different meaning to the passage which follows. It seems to me that they do ; for we are to understand these words in their ordinary sense. Suppose a person were to say, I have read a book concerning cer- tain interesting historical questions, in which is contained a pas- sage, in substance as follows ; no man would understand him to be about to repeat the very words of the passage, but only that he was about to give an abstract of it. So it is that I understand this declaration. It is true, that in pleading, many words have obtained an appropriate and technical sense, different from their popular meaning ; and if that had been the case with the words "in substance," it might have varied the present question: but it is not so, and those words must, therefore, be understood in their ordinary sense. I think, therefore, that the plaintiff in his declara- WRIGHT V. CLEMENTS. 97 tion, not having professed to set forth the very words of the libel, but only their substance and effect, and, as it were, a sort of ab- stract of them, judgment must be arrested. It is of great impor- tance to follow the ancient form of precedents ; for if we depart from them in one instance, one deviation will naturally lead to another, and, by degrees, we shall lose that certainty which it is the great object of our system of law to preserve. Bayley J. I am of the same opinion. A defendant in a case like this, has a right to expect that the plaintiff in his declaration, will set out the very words used, or so much of them as he means to rely upon ; and the usual mode of doing this has been already stated by my Lord Chief Justice. The word " tenor" has in law, a peculiar and technical sense, and the distinction between it and " substance" is directly pointed out by Buller J. in Eex v. May, Douglas, 193, where he says, that " The word tenor has so strict and technical a meaning, as to make it necessary to recite verba- tim ; but that by the expression, ' manner and form following,' used in that case, nothing more than a substantial recital was requisite." Here it is stated that defendant published certain false and libel- lous matters, in substance, as follows ; the latter words, therefore, qualify those which precede and would let the party in at nisi prius to looser proof than would have been required in case the declaration had stated the libel verbatim. Then if the law re- quires the libel itself to be stated, how can a declaration be suf- ficient which states the libel in substance only ? For two statements which may differ in words may agree in substance. Besides if it be suf&cient to set out a libel in substance, who is to decide wheth- er it is proved, the judge or the jury ? And if they differ the defendant might be deprived of the judgment of the court out of which the record comes. I think therefore that if we were to hold this declaration sufficient, we should relax the strictness of proof at present required and depart from the unvaried course of all the precedents. The judgment therefore must be arrested. HoLEOYD J. I am of the same opinion. The old form of declar- ing was, to state the libel " according to the tenor and effect follow- ing," or, " according to the tenor following." And the law attaches a technical meaning to the word " tenor," as signifying either an exact copy or a statement of the libel verbatim. If the usual mode be not followed, but new words substituted for these expressions, the court must understand those new words according to their VOL. II. 7 98 LEADING CRIMINAL CASES. popular and ordiaary sense. And considering this case in that way, tlie words "in substance," mean not a literal copy of the libel, but only the general import and effect of it. Now where a charge, either civil or criminal, is brought against a defendant, arising out of the publication of a written instrument, as is the case in forgery or libel, the invariable rule is, that the instrument itself must be set out in the declaration or indictment ; and the reason of that is, that the defendant may have an opportunity, if he pleases, of admitting all the facts charged, and of having the judgment of the court, whether the facts stated amount to a cause of action, or a crime. For it is clear that when it can be shown distinctly what the instrument is upon which the whole charge depends, that in- strument must be shown to the court, in order that they may form their judgment. A defendant is not bound to put the question as a combined matter of law and fact to the jury, but has a right to put it as a mere question of law to the court. This mode of de- claring would not only deprive him of that advantage, but also of his writ of error ; and it would make the verdict of a jury bind- ing in cases where it ought not to be so. For if the jury find the verdict that the libel proved was in substance the same as the charge in the declaration, contrary to the opinion of the Judge, that would be binding upon the parties, and the defendant could bring no writ of error, even although the whole might be a ques- tion of law. I think, therefore, that this declaration is bad, and that the judgment must be arrested. Best J. was absent at the Old Bailey. Hule absolute. It is a general rule of pleading, at common law, in civil as well as in criminal cases, that written instruments, wherever they form a part of the gist of the offence charged, must be set out in the declaration or indictment verbatim ; and where part only thereof is included in the offence, that part alone is necessary to be set out. 2 Gabbett Crim. Law, 231. Thus in the case of forgery, the instrument forged must be set out in the indictment in words and figures. Rex v. Lyon, 2 Leach C. C. (4th ed.) 597. Rex v. Mason, 2 East P. C. 973 ; 1 East 180 note. The State v. Gustin, 2 Southard, 744. The State v. Twitty, 2 Hawks, 248. Stephens v. The State, Wright, 70. An indictment for a libel must set out the ' very words of which the alleged libel is composed, or of that part of it which is the subject of the indictment. Commonwealth v. Wright, 1 Gushing, 46. Com- monwealth V. Sweney, 10 Sergeant & Rawle, 173. Zenobia v. Axtell, 6 Term R. 162. The word " tenor " imports an exact copy, and that it is set out in words and figures. Marks of quotation, to distinguish the libellous matter, are not sufficient to indicate that the words thus designated are tlie very words of the alleged libel. Commonwealth v. Wright, 1 Gushing, 46. But the omission in an indictment for a libel of the date and signature at the end of the libel, not WRIGHT V. CLEMENTS. 99 affecting the meaning, is not a variance. Commonwealth v. Harman, 2 Gray, 289. In an indictment for a contempt in not executing a warrant, the nature and tenor of the warrant must be shown verbatim ; Rex v. Burrough, 1 Ven- tris, 305 ; Comyns's Digest, Indictment, G. 3 ; and in an indictment for sending a threatening letter, the letter must be set out. Eex v. Lloyd, 2 East P. C. 1122. It has been recently held in England, upon a case reserved, where the defend- ant was indicted for fraudulently offering a " flash note " in payment, under the pretence that it was a Bank of England note, that an instrument need not be set out in an indictment, except where the court could derive assistance from seeing a copy of it on the record ; as where the case turns on the nature and character of the instrument, as distinguished from its quality of good or bad. Regina v. Coulson, Temple & Mew C. C. 332, 836 ; 4 Cox C. C. 227 ; 1 Denison C. C. 692 (1850). In this case. Chief Justice Wilde said: "It is unnecessary to set out the instrument in those cases where it cannot be of any use to the court, in order that they may arrive at the conclusion, whether it is or is not a valid docu- ment. Had it been stated in the indictment as a certain paper purporting to be a good and valid promissory note, and that it was not a good and valid promissory note, it might have been necessary to set it out, in order that the court might have seen whether it was or was not. In this case, the court could not have de- rived any assistance whatever from setting the paper out ; for all that appears upon the indictment, it might have been nothing but hieroglyphics. The indict- ment states that it was a certain paper produced by the prisoners which they falsely pretended was a good and valid promissory note, whereas it was not. Where the note is required to be set out, something has turned upon the nature of the note, rendering it necessary that the court should see it." The indictment must not only set out the tenor of the instrument, but it must profess so to do. The word "tenor" imports an exact copy; that it is set forth in words and figures, — whereas the word "purport" means only the substance or general import of the instrument. Commonwealth v. Wright, 1 Gushing, 46. The State v. Bonney, 34 Maine, 383. Rex v. Gilchrist, 2 Leach C. C. (4th ed.) 660. When the instrument is set forth according to its tenor, no technical form of words is necessary for expressing that it is 60 set forth. Therefore it was decided, that the words, "a certain receipt for money, as follows, that is to say," were as certain as if it had been said " ac- cording to the tenor following, or] in the words and figures following, that is to say." Rex v. Powell, 1 Leach C. C. (4th ed.) 77 ; 2 East P. C. 976 ; 2 Wm. Blackstone, 787. And if any other words are used which imply that a correct recital is intended, the instrument must be set out correctly, even though in the particular case the pleader need not have set out more than the substance of the instrument. And so strict was this rule conceived to be, that in one case it was made a question, whether substituting the word " undertood" for " under- stood," was not a fatal variance. Rex v. Beach, Cowper, 229 ; 2 Leach C. C. (4th ed.) 133. And in another case, the changing the words "value received" into " value reiceved," in setting forth the instrument, was insisted on as a fatal objection to the indictment. Rex v. Hart, 1 Leach C. C. (4th ed.) 145 ; 2 East P. C. 977. These objections were, however, overruled, upon the principle estab- lished in Regina v. Drake, namely, that unless the omission or addition of a letter does so change the word as to make it another word, the variance is not 100 LEADING CRIMINAL CASES. material. 2 Salkeld, 660. Regina v. Wilson, 1 Denison C. C. 284 ; 2 Carrington & Kirwan, 527. Purcell Crim. PI. 84. United States v. Hinman, Baldwin, 292. The State v. Bean, 19 Vermont, 530. The State v. Weaver, 13 Iredell, 491. Commonwealth v. Gillespie, 7 Sergeant & Rawle, 469, 479. And in another case, it was at first doubted whether the indictment was sufficiently proved, because it included the attestation of the witness, and the words " Mary Wallace, her mark," in the tenor of the note charged to have been forged ; the fact being, that when the prisoner subscribed the note, those parts of it were not then written. But Perrott B. and Aston J. whom the recorder consulted, being of opinion that the indictment was well proved, he directed the jury accordingly. For which decision this reason may be assigned, that the addition of the attestation of the witness, and of the words "his or her mark," were, on this occasion, as they usually are, concomitant with that mode of executing the instrument, and a part of the same transaction. Rex v. Dunn, 2 East P. C. 976. 1 Gabbett Crim. Law, 371. On the other hand, if the matter of a written instrument be introduced by words which imply that the substance only, and not the very words, of the instru- ment, is set out ; as, for instance, by the words " in substance, as follows," Wright V. Clements, 3 Bamewall. & Alderson, 503 ; or, " to the effect following," Rex v. Bear, 3 Salkeld, 17 ; or, "in manner and form following," Rexu. May, 1 Douglas, 193 ; 1 Leach C. C. (4th ed.) 227, or the like, if the instrument produced in evi- dence be in substance the same with that set out, it will be sufficient. 1 Starkie Crim. PI. (ed. 1828) 266, 256. Archbold Crim. PI. (14th ed.) 183. In indictments for forgery, &c. the instrument is sometimes described as the instrument, and sometimes as purporting to be the instrument, the counterfeiting of which is prohibited by the statute on which the indictment is framed ; and the latter mode of describing it has been held to be equally good as the former. And it has been said, that in strictness of language, there may be more propriety in so laying it, considering that the purpose of the indictment is to disaffirm the reality of the instrument. 2 East P. C. 980. 1 Gabbett Crim. Law, 371. Where the prisoner was indicted for forging and knowingly uttering a bill of exchange, described in the indictment to be a " certain bill of exchange, requiring certain persons, by the name and description of Messieurs Down, &c. twenty days after date, to pay to the order of R. Thompson, the sum of £315, value received," and signed by Henry Hutchinson for T. G., and H. Hutchinson, &c. ; and the indictment then proceeded to set out the bill ; on proof that the signature, " Henry Hutchinson," was a forgery, it was objected that the indictment aver- ring it to have been signed by Mm, and not merely that it purported to have been signed by him, which was a substantial allegation, was disproved ; and the case being referred to the Judges, they held the objection to be a good one. Rex V. Carter, 2 East P. C. 985. Where the defendants were indicted and con- victed of publishing, as a true will, a certain false, forged, and counterfeited paper writing, purporting to be the last will of Sir A. C. &c. the tenor of which was set out, it was objected that it should have been laid that they forged a certain will, and not a paper writing, purporting &c. ; the words of the statute being, " shall forge a will; " but, after a variety of precedents were produced, the Judges held it to be good either way. Rex v. Birch, 1 Leach C. C. (4th ed.) 791 ; 2 East P. C. 980 ; 2 Wm. Blackstone, 790. It is to be well observed that by the words, "purporting to be," is to be under- WEIGHT V. CLEMENTS. 101 stood the apparent, and not the legal, import of the instrument ; whereas the " tenor " of an instrument means the exact copy of it. And accordingly, where the instrument was laid in some counts of the indictment to be a paper writing purport- ing to be a bank-note, it was held, that as it did not purport on the face of it, to be a bank-note, not having been signed, the conviction could not be supported ; though it was in evidence in this case, that the bank frequently paid bank-notes which are filled by their officers, and entered by them, though they happen not to be signed ; but the case was decided upon the principle, that though there need not be an exact resemblance to the thing supposed to be forged, yet the forged instru- ment must at least have the principal constituent parts of that which it is intended to represent ; which was wanting in this case. Rex v. Jones, 1 Douglas, 300 ; 1 Leach C. C. (4th ed.) 204. And where the bill was directed to John Ring, and the acceptance was by John King, the indictment having stated that the bill purported to be directed to John King by the name of John Ring, and that the prisoner forged the acceptance in the name of John King, the judg- ment was arrested, because the bill did not, in fact, purport to be drawn on or directed to John King, as laid in the indictment ; for the name and descrip- tion of one person or thing could not purport to be another: Rex v. Reading, 1 Leach C. C. (4th ed.) 590; 2 East P. C. 962, and 981. And so where a check or order for payment of money was in fact directed to Messrs. Ransom, Moreland, and Hammersley, but in the indictment it was described as a paper writ- ing, &c. purporting to be directed to George Lord Kinnaird, W. Moreland, and T. Hammersley of &c. bankers and partners by the name and description of Messrs. Ransom, Moreland, and Hammerley, upon a conference of the Judges, the judgment was arrested, upon the principle above laid down, that the purport of an instrument meant the substance of it, as it appeared on the face of the instrument to every eye which read it ; and that this check or order could not purport to be directed to Lord Kinnaird, as his name did not appear on the face of it ; the blunder having arisen from the circumstance that Lord Kinnaird and Messrs. Moreland and Hammersley had carried on the business of bankers undef the firm of Messrs. Ransom, Moreland, and Hammersley. Rex v. Gilchrist, 2 Leach C. C. (4th ed.) 657 ; 2 East P. C. 982. And see Rex v. Edsall, 2 East P. C. 984 ; Rex v. Reeves, 2 Leach C. C. (4th ed.) 808 ; Rex. v. Birch, 1 Leach C. C. (4th ed.) 79 ; 2 East P. C. 980 ; 2 Wm. Blackstone, 790. But it is not always sufficient to set out the instrument according to its tenor. As where the indictment was framed upon 43 Geo. III. ch. 139, for the forgery of a Prussian treasury note, and the instrument was set out on the record, and stated in the several counts to be " a promissory note for the payment of money," " an undertaking for the payment of money," and " an order for the payment of money," and the prisoner being convicted, his counsel moved in arrest of judg- ment, on the ground that the false instrument was here set out only in a foreign language, and not translated or explained by other averments on the record ; and that the object of setting out the instrument in cases of libel and forgery was, that the court may judge whether it be what it is alleged to be, and whether it falls within the statute on which the prosecution is founded ; and eight of the ten Judges, who met to consider the case, were of opinion that the objection was good; and judgment was accordingly arrested. Rex v. Goldstein, Russell &, Ryan C. C. 473. And where the instrument alleged to be forged was described 102 LEADING CBIMINAL CASES. in the indictment as " a certain paper instrument partly printed and partly writ- ten," though the instrument was set forth 'in the very words and figures of it, yet the Judges, upon a case reserved, held the indictment to be bad, as it did not state what the instrument was, in respect of which the forgery was alleged to have been committed, nor how the party signing it had authority to sign it. Kex V. Wilcox, Russell & Ryan C. C. 60. And where the tenor of the receipt, as set out in. the indictment, was, "1825, rec* H. H.," and no averment or innuendo to explain what was meant by these initials, the indictment was held to be insufficient. Rex v. Barton, 1 Moody C. C. 141. See Regina v. Inder, 1 Denison C. C. 325 ; 2 Carrington & Kirwan, 635. Though it is in general sufficient to charge that the defendant forged such an instrument, naming it, or describing it as purporting to be such an instrument as is within the words and meaning of the statute, &c. or setting forth the tenor of it, yet if the instrument does not purport on the face of it, and without ref- erence to some other subject-matter, to be the thing prohibited to be forged, then such other subject-matter must be referred to in the indictment, and con- nected with the forgery by proper averments. 1 Gabbett Crim. Law, 374. 2 East P. C. 977. Thus where the indictment charged the prisoner with forging a receipt to an assignment of a certain sum in a navy bill, and the tenor of the receipt merely consisted of the signature of the party, it was held to be defec- tive on the ground that the mere signing of such name, unless connected with the practice of the navy office, did not purport on the face of it to be a receipt, and that it ought to have been averred, that such navy bill, &c. together with such signature, did purport to be, and was, a receipt, &c. and that the prisoner felo- niously forged the same ; and that it was not sufficient, as here, to allege generally, that the prisoner forged a receipt, which was a conclusion of law ; but facts must be stated to show the court that such conclusion was true. Rex v. Hunter, 2 Leach C. C. (4th ed.) 624; 2 East P. C. 928, 977. But the words, " Settled, Sam. Hughes," written at the foot of a bill of parcels, were held of themselves to import a receipt or acquittance, and that no averment was necessary ; that the word " settled," meant a receipt or acquittance. Rex u, Martin, 1 Moody C. C 483 ; 7 Carrington & Payne, 649, overruling Rex v. Thompson, 2 Leach C. C. (4th ed.) 910. And see Rex «. Houseman, 8 Carrington & Payne, 180 ; Regina 1). Vaughan, 8 Carrington & Payne, 180 ; Regina v. Boardman, 2 Moody & Robinson, 147; Regina ». Rogers, 9 Carrington & Payne, 41. And where, on an indictment for forging a receipt, it appeared that the receipt was written at the foot of an account, and the indictment stated the receipt thus : " 18th March 1773. Received the contents above by me, Stephen Withers," without setting out the account at the foot of which it was written, it was held sufficient. Rex «. Testick, 2 East P. C. 926. A railroad ticket does not state in terms any contract in detail, but only abbreviations and words from which a contract may be inferred and legally stated. In an indictment for forging a railroad ticket, it is not enough to set forth the instrument merely in the abbreviated form in which it is printed, but it must be accompanied by other averments stating the legal con- tract, and showing some valuable legal interest arising from the possession and ownership of such instrument or ticket. In an indictment for forging a railroad ticket, expressed on its face to be " good this day only," a description of the WRIGHT V. CLEMENTS. 103 ticket as signifying to the holder that it must be used continuously, and with- out stopping at intermediate stations, after once entering the cars, is a fatal variance. The averment as to the contract should have been that the ticket was good for one day only, or required the entire trip to be made in one day. Commonwealth v. Ray, 3 Gray, 441. When the indictment is founded upon a statute, it must, in general, accord- ing to the rule of pleading which is applicable to all offences, set forth the charge in the very words of the statute describing the offence ; equivalent words not being sufficient. 1 Gabbett Crim. Law, 376. But in a recent English case it has been held, that if the instrument be set out in hsec verba, a misdescription of it in the indictment will be immaterial, at least if any of the terms used to describe it be applicable. In this case Parke B. said: " The question may be very different if the indictment sets out the instrument from what it would be if it merely described it in the terms of the statute. In the former case, the matter which it is contended is descriptive, may be mere surplusage, for when the instrument is set out on the record, the court are enabled to determine its character, and so a description is needless. Re- gina V. Williams, 2 Denison C. C. 61 ; Temple & Mew C. C. 382. 4 Cox C. C. 256 (1850). In this case the indictment charged the defendant with having forged " a certain warrant, order, and request, in the words and figures following," &c. It was objected that the paper being only a request, did not support the indictment, which described it as a warrant, order, and request. But it was held that there was no variance, as the document being set out in full in the indictment, the description of it's legal character became immate- rial. Parke B. suggested that the correct course would have been, to have alleged the uttering of one warrant, one order, and one request. " The prin- ciple of this decision seems to be," says Denison, " that where an instrument is described in an indictment by several designations, and then set out accord- ing to its tenor, either with or without a videlicet, the court will treat as surplus- age such of the designations as seem to be misdescriptions, and treat as material only such designations as the tenor of the indictment shows to be really appli- cable. And where the indictment is so drawn as to enable the court to treat as material only the tenor of the indictment itself, all the descriptive averments may be treated as surplusage. The principal case seems reconcilable with Regina v. Newton, 2 Moody C. C. 69, but to overrule a decision of Wight- man J. in Regina v. Williams, 2 Carrington &Kirwan, 61." In Regina ». Char- retie, 3 CoxC. C. 603, Davison, amicus curiae, mentioned that Cresswell J., in a subsequent case, had declined to act upon the authority of Regina ». Williams, 2 Carrington & Kirwan, 61. Commonwealth v. Castles, 9 Gray, 123, was decided on a principle similar to that of the -preceding case, Regina v. Williams, 2 Denison C. C. 61; Temple & Mew C. C. 266, and 4 Cox C. C. 266. This was an indictment for uttering as true a forged indorsement of a " promissory note." The note and indorse- ment were set out according to their tenor. It was decided that it is not neces- sary that the indictment should in terms aver that the forgery charged was of the "indorsement of a promissory /or fhe payment of money.'''' "These," said Bigelow J., " it is true, are the words of the statute. But it is not essen- tial that they should be used in the indictment. It is sufficient if it appears on 104 LEADING CRIMINAL CASES. the face of the indictment by proper averments, that the instrument forged is of the particular kind prohibited by statute. Or if it can be collected from the forged writing, itself, as set out in the indictment, that it assumes to be an in- strument the false making of which is forgery. In the present case, the note on which the indorsement is alleged to have been forged is set out according to its tenor ; by which it clearly appears that it was in fact a promissory note for the payment of money. The indictment conforms to the well established precedents. But if this were not so, it would not follow that the indictment was bad. If it did not sufficiently aver a forgery of an instrument within the statute, it might nevertheless be good, as charging the offence of forgery at common law." In an indictment for libel, besides setting out the libellous passage of the pub- lication, the indictment must also contain such averments and innuendoes as may be necessary to render it intelligible, and its application to the party libelled, evident. When the statement of an extrinsic fact is necessary in order to ren- der the libel intelligible, or to show its libellous quality, such extrinsic fact must be averred in the introductory part of the indictment ; but where it is necessary merely to explain a word by reference to something which has preceded it, this is done by an innuendo. And an innuendo can explain only in cases where some- thing already appears upon the record to ground the explanation; it cannot of itself, change, add to or enlarge the sense of expressions beyond their usual acceptation and meaning. Commonwealth v. Snelling, 16 Pickering, 321, 385. The State v. Henderson, 1 Richardson, 179. Archbold Crim.Pl. (14th ed. 644.) In indictments for passing, &c. counterfeit bank-bills, the number and check- letter, and the words and figures in the margin, and thej ornamental parts, and the devices, mottoes, and vignettes need not be set out. Commonwealth v. Tay- lor, 5 Gushing, 605. Commonwealth v. Searle, 2 Binney, 832. Commonwealth J). Bailey, 1 Massachusetts, 62. Commonwealth v. Stevens, 1 Massachusetts, 824. The State v. Carr, 5 New Hampshire, 367. It is sufficient to set out what constitutes the contract of the bill; but that must be done truly and precisely. In Massachusetts it has been recently held, that it is a fatal variance in an indict- ment for uttering and publishing as true, a forged bank-bill, to omit the name of the State in the upper margin of the bill, if it is not repeated in the body thereof. Commonwealth v. Wilson, 2 Gray, 70. This was an indictment on Revised Statutes, ch. 127, § 2, charging the defendant with uttering and publishing as true, with intent to defraud, and knowing the same to be altered, false, Iforged and counterfeit, a certain altered, false, forged and counterfeit promissory note for the payment of money, " of the tenor fol- lowing, that is to say, President, Directors & Co. of the Atlantic Bank will pay ten dollars to bearer on demand. Portland, March 1, 1851. W. H. Stevenson, Cash. J. B. Osgood, Pres't." The note produced in evidence at the trial, corresponded to the description in the indictment, but also had the words " State of Maine," in the upper margin. And the defendant contended, that this was a variance from the note declared on. But the objection was over- ruled. In delivering the opinion Thomas J. said: "There is a material variance between the instrument produced and that set forth in the indictment. The words ' State of Maine,' are part of the date, and so part of the contract. They fix the situs of the bank, the place where the contract is made and to be performed, and the law by which it is ^to be interpreted. The case is WRIGHT V. CLEMENTS. 105 clearly distinguishable from those of Commonwealth v. Bailey, 1 Massachusetts, 62, and Commonwealth v. Stevens, 1 Massachusetts, 324. In the indictment in each of those cases, the entire contract was fully and precisely set out. The words omitted, the number of the bill, and the words and figures at the top or in the margin were immaterial, because the contract was complete without them. The number was held to be afiixed for the convenience of the bank only. The figures and words in the margin were but a repetition of those in the body of the note. In the case of Commonwealth v. Taylor, 5 Cushing, 605, also the words and figures omitted formed no part of the contract. The words ' three dollars ' and ' Mass.' were immaterial, not because they were in the margin, but because they were also in the body of the note, and the contract was complete without them. Commonwealth v. Taylor is decided upon the point settled in Commonwealth v. Bailey, and Commonwealth u. Stevens, that if all that was evidence of the con- tract was precisely set out, it was sufficient. In the present case, the defect was in omitting that which made part of the evidence of the contract." See 98 Mass. 12, 16. In an indictment for forging a promissory note, the indorsement need not be set out, though it be forged. It is no part of the note. Commonwealth v. Ward, 2 Massachusetts, 397. Commonwealths. Perkins, 7 Grattan, 643. Sim- mons V. The State, 7 Hammond, 116. In Commonwealth v. Adams, 7 Metcalf, 50, Wilde J. said: " This case cannot be distinguished from the case of Com- monwealth V. Ward, 2 Massachusetts, 397 ; and we know of no authority or principle of law inconsistent with the decision in that case. The case of The State V. Handy, 20 Maine, 81, cited by the defendant's counsel, was not an in- dictment for the forgery of a negotiable note, but of an order, directing an indorsement to be made on a bond. The order directed $48 to be indorsed, and on the back of the order, there was a direction to add one dollar more. And it was decided that this was an order for $49, and that it not being so alleged in the indictment, the variance between the allegation and the proof was fatal. That decision, therefore, has no bearing on the present case. In an indictment for forgery, it is necessary, undoubtedly, to set out truly the instrument alleged to be forged. And so it was done in the present indictment, unless the indorse- ment of the payee is to be considered as a part of the note ; and we are clearly of opinion that it is not. The indorsement is evidence of a transfer of the note to the defendant, which was a new contract. This was matter of evidence in support of the allegation that the note was uttered with an intentio/i to defraud the persons named in the indictment ; but it is not necessary to set forth the manner in which a party was intended to be defrauded." Where the instrument on which the indictment rests is in the defendant's pos- session, or cannot be produced, and there is no laches on the part of the govern- ment, it is necessary to aver in the indictment such facts as are sufficient to excuse the nondescription of the instrument, and then to proceed, either by stating its substance, or by describing it as an instrument which cannot be set forth by reason of its loss, destruction, or detention, as the case may be. Com- monwealth V. Houghton, 8 Massachusetts, 107. The State v. Bonney, 34 Maine, 223. The People v. Badgeley, 16 Wendell, 63. Hooper v. The State, 8 Humphreys, 93. The State v. Parker, 1 D. Chipman, 298. The State v. Potts, 4 Halsted, 26. The United States v. Britton, 2 Mason, 464. The People V. Kingsley, 2 Cowen, 622. 106 LEADING CRIMINAL CASES. An indictment for printing an obscene paper must set it out in the very words of which it is composed ; and the indictment must undertake or profess so to do, by the use of appropriate language, unless the publication is so obscene as to render it improper that it should appear on the record ; and then the statement of the contents may be omitted altogether, and a description thereof substituted ; but in this case, a reason for the omission must appear in the indictment, by proper averments. If one of the original printed papers, in an indictment for printing an obscene paper, is attached to the indictment, in place of inserting a copy, it is not a suflScient indication that the paper is set out in the very words. Commonwealth v. Tarbox, 1 Gushing, 66. Commonwealth v. Holmes, 17 Mas- sachusetts, 336. The People v. Girardin, 1 Manning, 90. In Commonwealth v. Tarbox, Forbes J. said: "In indictments for offences of this description, it is not always necessary that the contents of the publication should be inserted ; but, whenever it is necessary to do so, or whenever the indictment undertakes to state the contents, whether necessary or not, the same rule prevails as in the case of libel, that is to say, the alleged obscene publication must be set out in the very words of which it is composed, and the indictment must undertake or profess to do so, by the use of appropriate language. The excepted cases occur, whenever a publication of this character is so obscene as to render it improper that it should appear on the record ; and then the statement of the contents may be omitted altogether, and a description thereof substituted ; but, in this case, a reason for the omission must appear in the indictment, by proper averments. The case of Commonwealth v. Holmes, 17 Massachusetts, 396, furnishes both an authority and a precedent for this form of pleading. In the present case, the indictment sets out the printed paper according to its purport and effect, and not in hoec verba, or according to its tenor, or by words importing an exact transcript. The mode of pleading adopted cannot be sustained, and the indict- ment being insufficient, judgment is arrested." In an indictment for a larceny of written instruments, made the subject of larceny by statute, it is sufficient to give a brief legal description of the instru- ment. Thus an indictment for larceny, alleging that the defendant stole "one bank-note of the value of ten dollars, of the property of one C. D;," is sufficient without a more particular description of the note. Commonwealth v. Richards, 1 Massachusetts, 337. 2 East P. C. 602, 777. So an indictment for selling lot- tery tickets need not set out the tickets sold. The People v. Taylor, 3 Denio, 99. In this case Bronson C. J. said: "In the cases to which we have been referred where it is necessary to set out the tenor of the instrument, as in indict- ments for forgery and counterfeiting, for libels and threatening letters, the writing constitutes the gist of the offence. But it is not so where the defendant is charged with the sale of a lottery ticket. That is more like larceny of a writ- ten instrument, where the indictment need not set forth either the tenor or pur- port of the writing. A general description is sufficient. And besides, a ticket need not be in the form of a written contract or engagement. It may be any sign, symbol, or memorandum of the holder's interest in the lottery." In Massachusetts St. 1864, ch. 260, § 1, enacts that "No variance between any matter, in writing or in print, produced in evidence on the trial of any criminal cause, and the recital or setting forth thereof in the complaint, indict- ment or other criminal process whereon trial is had, shall be deemed material, SERBIAN V. THE STATE. 107 provided that the identity of the instrument is evident and the purport thereof is sufficiently desoribed to prevent all prejudice to the defendant." In Common- wealth V. Hall, 97 Massachusetts, 670, the indictment alleged that the defendant had in his possession with intent to utter, knowing the sstme to be false, " a coun- terfeit bank-bill, of the tenor following, to wit," and then set forth a bill pur- porting to be issued by a national bank, promising to pay a certain sum to the bearer on demand, and dated, and signed by the president and cashier ; and also set forth, as if a part of the instrument, a certificate purporting to be signed by the register of the treasury and by "P. E. Spinner, Treasurer of the United States," that " this note is secured by bonds of the United States deposited with the United States Treasurer at Washington." At the trial, the paper offered in proof of this allegation was of that tenor, except that the certificate thereon bore the signature of " F. E. .Spinner, Treasurer of the United States ; " and it appeared in evidence that the name of the treasurer of the United States was Francis E. Spinner. Held, that the variance was rendered immaterial by the first section of the St. 1864, ch. 250, § 1, of the constitutionality of which the court " entertained no doubt." Berbian V. The State.^ October Term 1849. Indictment — Figures. It is error in an indictment to express numbers or dates by Arabic figures or Roman numerals ; they must be written in words at length, except when the indictment, as in forgery, professes to set forth the exact tenor or a fac simile of any instrument. This cause was argued at October term 1849, before the Chief Justice, and Nevius and Carpenter, Justices, by J. Warren Scott, for the plaintiif in error, and by the Attorney- Q-eneral and Ulmen- dorf, for the State. Scott, for the plaintiff in error. A part of this indictment is in Arabic figures, and there is no innuendo to explain their meaning. In olden times, pleadings, court rolls, and all proceedings in courts of law were engrossed in Norman French. The statute 36 Edw. III. required all pleadings and law proceedings to be entered and enrolled in Latin. The statutes 4 Geo. II. ch. 26, and 6 Geo. II. ch. 14, directed that they should be in English. Our statute is a condensation of these two > 2 Zabriskie, 1, 679. 108 LEADING CRIMINAL CASES. acts of Parliament, and it is done by a master's hand. It enacts that all proceedings whatsoever, in every court of law in this State, shall be written in words at length in the English language, and in no other tongue or language, and not abbreviated, except by such abbreviations as are commonly used in the English language ; provided nevertheless, that it shall be lawful to express numbers by figures in like manner as hath heretofore, or is now commonly used in the said courts respectively. During the time in which the statute 36 Edw. III. was in force, a period of nearly three hundred and seventy years, there is not one case to be found justifying the use of Arabic figures in law pro- ceedings. All the old reports repudiate them in most decisive terms. I do not find either authority or dictum allowing their use. Nor can I find any such authority, or even dictum, from West- minster Hall since the statutes of Geo. II. on the contrary, numerous decisions condemn them in peremptory terms. All the elementary writers, modern as well as ancient, concur in laying it down as a principle, that indictments must be written out in words at length ; that no abbreviations are admissible ; that figures cannot be allowed in indictments, but that all numbers must be expressed in words at length. To this general rule there is an exception, and that exception embraces two cases : first the case of forgery, and the second the case of threatening letters. In these two cases a fac simile of the instrument may be given. And they assign a reason for it. I refer the court to 1 Hale, P. C. 170 ; Andrews, 146 ; Burn Justice, tit. Indictment ; Crown C. C. (ed. Ryland) 61 ; Crown C. 0. (1st Amer. ed.) 33 ; Hawkins P. C. bk. 2, ch. 25, § 129 ; 1 Chitty, Grim. Law, 176. In New Jersey it never was the use or custom to express num- bers by figures in indictments. The courts of our State never did adopt a custom or practice so slovenly or insecure. Our earliest reports condemn the use of figures in law proceedings, even in civil cases. " No common usage or custom has sanctioned the use of figures in this State ; no such custom has ever obtained. From the earliest times to the present it would have been error," says C. J. Kirkpatrick in the case of Cole v. Petty, 1 Penning- ton, 48, 44. In an early case, C. J. Kinsey makes use of similar language. He expressed his disapprobation in pointed terms, censured the pleader for his negligence, and quashed the indict- ment. BERBIAN V. THE STATE. 109 The indictment under review professes to set forth the sub- stance and effect of the oath. It says that Berrian swore, among other things, to the substance and effect following. The oath set forth is therefore not a copy, nor can it be immaterial, for it is charged to be the substance and effect. It is a contradiction in terms to say that the substance is immaterial. Green C. J. It is objected that a part of the indictment is in figures, and not in words at length. By an inspection of the record, it appears that the day of the month and the year, in which the afiBdavit upon which the perjury is assigned, is therein recited to have been taken, and the day of the month and year upon which, in that affidavit, the larceny is charged to have been committed, are in figures. It is laid down by Sir Matthew Hale, that figures to express numbers are not allowable in indictments, though sometimes literal numbers be allowable in returns ; but in indictments, the numbers, whether cardinal or ordinal, must be expressed in Latin. 1 Hale P. C. 170. The modern elementary writers state the rule to be, that no part of the indictment must be in figures, and therefore numbers and dates must be expressed in words at length. The only exception to this rule is where a fac simile of a written instrument is to be set out, as in the case of forgery, in which case it must be set out in the indictment in words and figures, as in the original itself. Archbold Crim. PL 25. 1 Chitty Crim. Law, 176. 2 Burn Just. 500, Indictment, VII. By the statute 13 Edw. III. ch. 15 (1390), it is enacted : " That all pleas which shall be pleaded in any courts whatever shall be entered and enrolled ih Latin. This statute was in force when Hale wrote his treatise, and continued in operation down to the fourth year of Geo. II. (1731). 3 Bl. Comm. 322. The earliest case touching the use of figures in legal proceedings, which I find reported while this statute remained in force, was a civil suit in the 13 Car. II. The action was assumpsit. Upon writ of error, after verdict, it was assigned for error, that the year (1642) in which the promise was alleged in the declaration was in figures. Jones J. was of opinion that, being in an inferior court, it was helper by the statute of jeofails. But the court said, the time is necessary , and ought to be in Latin, according to the 110 LEADING CRIMINAL CASES. statute, and being in figures is insensible. And judgment was reversed. Bushel v. Bland, 1 Keble, 19, pi. 55. The same case is reported as Ducket v. Bland, 1 Siderfin, 40, pi. 6. 13 Viner Ab. 210, Figures. In the 22 Car. II. it was moved, in the King's Bench, to quash an indictment, because the year in the caption was in figures ; but the objection was avoided by the year of the reign being also stated. Hale C. J. said that was enough. 1 Modern, 78, pi. 40. In Hobson v. Heywood, 23 Car. II. Style, 88, the plaintififin error, in an action of debt for rent, assigned for error, that the sum demanded for rent was in figures, and not in words. The court held that the error was material, and reversed the judgment. In Hawkins v. Mills, 26 Car. II. in an action of debt, the error assigned was, that, in the award of the venire facias, the sheriff was commanded to summon "XII men," the number twelve being in Roman letters. The objection was not allowed, being in text, as used in King's Bench, and not in figures, but if it had been 12 in figures it would have been error. 2 Levinz, 102 ; 3 Keble, 301. Anonymous, 1 Ventris, 256. 13 Viner Ab. 210, Figures, 4. It is worthy of notice that this error was assigned upon the defect of the record touching the number of jurors, in regard to which there could have been no mistake, the number being fixed by law, and in the modern practice being entirely omitted in the award of the venire. 3 Bl. Comm. Appendix, § 4. 2 Lilly Bnt. 350, 397. In Hebbert v. Corsthorp, 5 W. & M. (Skinner, 409) in assump- sit for work and labor, the exception was, the sum in the writ of inquiry was in figures. Sed non allocatur, for they were (XII) Latin figures, which is well enough : otherwise if they had been (12) English figures. In Rex V. Phillips, 1 Strange, 261 (6 Geo. I.) a coroner's inqui- sition was quashed because the year in the caption was in common figures, whereas it ought to have been in words at length, or at, least in Roman numerals. If the caption of an indictment set forth the style of the day or year in any figures but Roman, it is insufBcient. Hawkins P. C. bk. 2, ch. 125. § 129. 2 Keble, 128, pi. 83. Bacon Ab. Indict- ment, I. In the Law of Errors (ed. 1703) there is an assignment of BEEBIAN V. THE STATE. Ill error in a civil suit, because in the record the sums are written in figures, when they ought to have been written at large. In 1 Instructor Clericalis (ed. 1714) 14, it is said: "Tis reckoned more clerklike to Write all sums and figures till past five at length, but after five in numerical figures ; " but this is meant as to precedents, tests of writs, and such things as are not of record, for there all sums ought to be at length in words. The authorities which have been cited are all drawn from the period when the statute of Edward remained in force. That statute, it will be recollected, simply required the proceedings of courts to be entered and recorded in Latin ; and it has been suggested, as a ground for the distinction between the Roman numerals and the Arabic figures, that the former are Latin, which the latter are not. It will be recollected, however, that during this period legal proceedings were all entered in court-hand, with numerous abbreviations, quite as unintelligible t6 the uninitiated as the Roman numerals themselves. The statute 4 Geo. II. ch. 26, enacts, that from and after the 25th of March 1733, all writs, pleadings, records, and proceedings in courts of justice shall be in the English tongue, and shall be written in a common legible hand and character, and not in court-hand and in words at length, and not abbreviated. The statute 6 Geo. II. ch. 14, enacts that all writs, pleadings, records, and proceedings in courts of justice may be written or printed in a common legible hand and character, and with the like way of writing or printing, and with the like manner of expressing numbers by figures, as have been heretofore, or are now commonly used in the said courts respectively, and with such abbreviations as are now commonly used in the English language. 6 Statutes at Large, 65, 120. In The King v. Haddock (11 Geo. II.) the indictment was for a nuisance, by putting and placing on the soil of the river Thames, . on the first day of August 1732, 200 loads of brick. To this indictment there was a demurrer on several grounds, one of which was, that the year when the offence was committed, and also the quantities of brick, were expressed in figures. Lee C. J. said, there was great weight in the objection, and relied especially upon the authority of Lord Hale, that figures ought not to be used ia indictments. [Page J. said that in civil actions figures are now good, because 112 LEADINGf CRIMINAL CASES. literal ones were therein used before the late acts; but that in indictments they ought not to be inserted, because it was not usual before these acts, therein to express numbers in figures. Chappie J. said, the objection is a very strong one, and the cases are express for the purpose. It is very difficult to maintain, upon the late acts, that figures may be used in indictments, it not being usual to iise them in such cases before. Probyn J. said, no other figures but such as are capital were ever used in the bodies of indictments, and these were never allowed but only in immaterial parts; but in this case a very material part is expressed in figures : now these are not aided by the English acts, because they leave the matter as it was before.] The court took time to advise, and no final opinion was ever given, there being a new indictment brought by the prosecutor. Andrews, 137 ; 2 Sessions Cases, 315. Upon a careful examination of the English cases, except the language of Probyn, in The King v. Haddock, I find no adjudication, nor even a dictum, either before or after the statute of Geo. II. which countenances the idea that figures, either Roman or Arabic, may be used in an indictment. The more recent elementary writers (as we have seen) adopt the doctrine of Lord Hale, and lay down the rule explicitly, that figures cannot be used in an indictment, except when the fac simile of a written instrument is to be set out. The courts at Westminster, indeed, have carried the principle of requiring the proceedings in courts of law to be in words at length, so far as to hold it a fatal objection to civil process that the year in the notice to appear was in figures, and not in words at length. Pinero v. Hudson, 1 Maule & Selwyn, 119. Sutherland v. Tubbs, 1 Chitty Rep. 320 note. Grojan v. Lee, 6 Taunton, 651. Williams V. Jay, 5 Taunton, 652 note. It was, however, subsequently resolved that such notice was good though the year were in figures. Eyre v. Walsh, 6 Taimton,.333. Process had previously been held good even when the year was erroneously stated, or altogether omitted in the notice. 1 Taunton, 424. 2 Strange, 1232. Barnes, 425. I have been led to this review of the authorities, from the fact that in two or three recent American cases it has been held that Arabic characters will not vitiate an indictment. The State v. Raiford, 7 Porter, 101. The State v. Hodgeden, 3 Vermont, 481. Peck, 165, BEREIAN V. THE STATE. 113 cited in 2 Hale P. 0. (ed. 1847) 170, note 2 ; 2 Bouvier's Law Dictionary, Figures. In The State v, Raiford, the court said that it was more proper to write the day, year &c, than to insert Arabic characters ; but that the contrary practice has prevailed so long that it would be unwise to disturb it. The decision of the court is based upon established practice. Such, doubtless, is the practice of the State where that decision was made, but I have been unable to ascertain the existence of any such practice in the courts at Westminster ; and in ^his State both practice and author- ity are the other way. Our statute respecting amendments and jeofails adopts the material provisions of the statutes of Geo. II. in respect to civil suits, but provides that no part of the act, except that which directs proceedings to be in English, shall extend to indictments or crim- inal proceedings. Rev. Sts. 991, § 17, 19. In Cole V. Petty, 1 Pennington, at p. 61, Kirkpatrick C. J. said, it is certain that in courts of record we do not enter judgments in figures. No such custom has ever obtained from the earliest times to the present ; it would have been error. And, indeed, as the sum for which judgment is entered, is the very essence of the whole, it would seem to be absurd that all the rest of the proceed- ings should, of necessity, be entered in words written at length, and that this only should be entered in figures. Judgments, even in the courts for the trial of small causes, can- not be entered in figures. Pennington, 61, 86, 110, 413. In Ross V. Ward, 1 Harrison, 23, Hornblower C. J. manifested a strong disposition to extend the principle even to the process of the justices' courts. He said: " The process of a court requir- ing the personal appearance of a party, ought to be in words at length, especially as to the time he is requested to appear, and the sum demanded of him." ^ These opinions exhibit clearly the view which our courts have taken against the principle and practice of usingfigures in civil proceedings. In criminal proceedings, and especially in indictments, the objec- tion to the use of 'figures is more obvious and cogent, and we believe they are universally (except where a fac simile is neces- sary) written in words at length. To this cause, and to the general judgment of the profession, that the use of figures is fatal in an indictment, may be attributed the entire absence of all judicial authority directly upon the point. VOL. II. 8 114 LEADING CRIMINAL CASES. Indeed, upon the argument, it seemed to be conceded that ordina- rily the use of figures in an indictment is fatal, but it was insisted that the present case is not within the principle. It remains to be seen whether the use of figures in the indictment now under con- sideration can be justified. It is said, in vindication of the present indictment, that perjury is assigned upon a written affidavit, and that that part of the in- dictment where the figures occur, is but a transcript of the affidar vit upon which the perjury is assigned. When perjury is assigned upon a written instrument, the pleader may doubtless set out the tenor of the affidavit by words and figures in the indictment. But how does it appear that that was done in the present instance ? It does not purport, upon the face of the indictment, to be a copy. It is averred to be set out not in words and figures, or ac- cording to its tenor, but according to its substance and effect. This averment cannot be rejected as surplusage. As the matter sworn to, as stated in the indictment, is most manifestly not a literal copy of the affidavit, but a mere statement of its substance and effect. It cannot, therefore, be justified upon the ground that it is a fac simile of a written instrument. The indictment charges that the defendant did say, depose, swear, and make affidavit in ■writing, among other things, in substance and to the effect follow- ing, that is to say : — State of New Jersey, Middlesex County ss. Be it remembered, that on the 3d day of August 1846, John B. Berrian (the said JohnB. Berrian meaning), of the township of South Brunswick in the County of Middlesex, in his proper person, comes before me, Peter P. Mesuroir(the said Peter P. MesuroU, Esq. meaning), one of the jiistices of the peace in and for said county (the said county of Middlesex meaning), and upon his oath maketh complaint, that," &c. Now it is very manifest that all this is no part of the matter sworn to by the defendant. It is but the mere title of the affida- vit, a statement of the name and residence of the deponent, the name and office of the magistrate, and of the time of taking the oath. Though composing technically a part of the written affida- vit, it is no part of the matter upon which the perjury is assigned. It might all have been very properly and very advantageously omitted by the pleader. But having been incorporated in the in- dictment, as a part of the description of the offence, it becomes material, and must be supported by proof. Nor is the objection obviated by the fact, that, in a previous part BEBRIAN V. THE STATE. 115 of the indictment, the day upon which the affidavit was taken, is stated in words at length. The precise day upon which the crime is charged to liave been committed, is not material ; and had the title of the affidavit been entirely omitted, the indictment would have been supported by the production of the affidavit, though it had borne date upon another day. But, as the indictment is now drawn, if the affidavit had borne date upon any other day than the third of September, it would have been inadmissible in evidence, and solely on the ground of the misdescription of the affidavit. It cannot, therefore, be rejected as surplusage. Upon this point, I am of opinion, that the judgment below must be reversed. This conclusion renders it unnecessary that any opinion should be expressed upon the other errors assigned. Cakpentee J. concurred. Nevius J. I concur in the opinion expressed by the Chief Jus- tice on all the errors assigned, except that which relates to the use of figures in the indictment ; and whilst I assent to the principle maintained by him on this point, I cannot agree with him in its application in this case. By the seventeenth section of the act respecting amendments and jeofails, passed in 1794, all proceedings in every court of law and equity in this State are " required to be in the English tongue and language, and in no other tongue or language, and written or printed in good legible hand, and not abbreviated except such abbreviations as are commonly used in the English language ; Provided, that it shall be lawful to express numbers by figures, in like manner as it hath been heretofore, and is now commonly used in said courts." This provision, by the nineteenth section of the same act, is ex- pressly extended to indictments. The first inquiry then is, were figures commonly used to express numbers and dates in indict- ments before and at the time of the passing of this statute ? Before the Revolution, and the adoption of our Constitution in 1776, the practice was to express dates and nunabers in words at length, and not in figures, and this practice seems confirmed by numerous judicial decisions, whether by regulation of the common law, or by usage or custom, or statutory provision, is not essential now to determine. In Hale P. C. vol. 2, 170, it is asserted, "that figures to express numbers, are not allowable in indictments;" and in a case reported by Andrews, p. 146, the same doctrine is held, and in which the court cite Style, 88 ; 1 Siderfin, 40, and 1 Keble, 19 ; and this doctrine is held both by Chitty and Archbold, in their 116 LEADING CRIMINAL CASES. elaborate and valuable works on Criminal Law, with the qualifica- tion, however, that figures in an immaterial part of an indictment will not vitiate it, and that they may be used where a copy of an instrument is attempted to be set forth. This was the law and practice in New Jersey when the Constitution was adopted, which declared that so much of the common and statute law of England as had been in use here should remain in force ; and it continued in force till the passing of the act above mentioned. The statute, therefore, made no change, and it was so held in Cole v. Petty, 1 Pennington, 60, and in other cases after that time. In some of the States this rule has been relaxed without the aid of a statute. In State v. Hodgeden, 3 Vermont, 431, the court say, that figures are a part of the English language, and are admissible in indict- ments ; and this is approved by the court in Kelly v. The State, 3 Smedes & Marshall, 518. In a late case in Connecticut, Rawson V. The State, reported in The Law Reporter, vol. 1, N. s. p. 113 ; 19 Connecticut, 292, it is said that the use of figures there is con- formable to common practice, and is sufficiently precise and certain ; and the chief justice in that case remarks, that in England, where most felonies were punished with death, the strictness of their practice in this respect was in favorem vitse, whilst in prosecutions for misdemeanors here it would be in favorem criminis. A like decision may be found in 7 Porter, 101. Whatever force there may be in the reasons assigned for the de- cisions in the cases above cited, and in the States where they were first made, and under the circumstances under which they were rendered, I am unwilling to change the practice made by judicial decision. The old rule has been well known and understood by public prosecutors in this State, and has been uniformly practised ; and I deem it safest and best to adhere to it, with the exceptions above named, until the legislature, in their profound wisdom, shall see fit to alter it. See Johnson v. The State, 2 Dutcher, 313. It has been very often decided by this court, that judgments of inferior courts entered in figures, are erroneous, and in violation of the act, and for that cause have been reversed; and it would be grossly inconsistent to require a less particularity in criminal prosecutions. I think the rule a safe one, and am unwilling to depart from it. But it still remains to inquire, whether the rule contended for is applicable to this case, or whether the case is within the exceptions above mentioned. The indictment charges that the defendant, wickedly, &c. con- BERRIAN V. THE STATE. 117 triving and unjustly intending to aggrieve one J. N. J. &c. on the third day of August in the year of our Lord one thousand eight hundred and forty-six, came before one M., then and yet being one of the justices, &c. then and there and before the said justice, was sworn and took his corporate oath, &c. and then and there falsely, &c. did say, depose, swear and make affidavit in ■writing, among other things, in substance and to the effect follow- ing, that is to say : " State of New Jersey, Middlesex County ss. Be it remembered, that on the 3d day of August 1846, the said J. B. B. (the said J. B. B. meaning) of, &c. in his proper person comes before me, M. (the said M. meaning one of the justices, &c. in and for the said county (the said county of M, meaning), and upon his oath maketh complaint, that on the 3d day of August, A. D. 1846 (the said third day of August in the year of our Lord eighteen hundred and forty-six meaning), he, this deponent (the said J. B. B. meaning), had one fanning mill stolen from his barn (the barn of the said J. B. B. meaning), at &c. of the value, &c. and that the said fanning mill had been taken, stolen and carried away from out the barn of him, the said J. B. B. ; and that he, the said J. B. B., had just cause to suspect, and did suspect, that the said mill was then concealed in the barn of the said J. N. J., as by the said affidavit now filed, 2 Zabriskie, 679. THE STATE V. BERRIAN. 119 Middlesex Oyer and Terminer. The case is stated in full, and the arguments of counsel given in the report of the cause in the Supreme Court. No written opinions were delivered in the Court of Errors, by whom the judgment of the Supreme Court w^s affirmed, and the judgment of the Oyer and Terminer was reversed ; nor does the vote by which it was reversed appear by the minutes of the court. The president of the court (Chancellor Halsted) has furnished the reporter with the following memoranda from an indorsement on his notes. The court resolved unanimously that, as a general rule, the use of figures in an indictment was illegal. The court resolved. Judges Wall and Speer dissenting, that the indictment was not defective for the use of figures, as therein used. But the court resolved, Justice Randolph dissenting, that the indictment in this case was otherwise defective, and therefore affirmed the judgment of the Supreme Court. In America, the weight of authority seems to be contrary to the law as stated in the principal case, and perhaps the application of it, in that case, may be doubted. But at all events, a contrary practice is unclerical, uncertain, and liable to alteration; and the courts which have sustained such practice, have uniformly cautioned against it. See Lazier v. The Commonwealth, 10 Grattan, at pp. 712, 713 ; Commonwealth v. Hutton, 5 Gray, at p. 90. In Finch v. The State, 6 Blackford, 533, and in The State v. Voshall, 4 In- diana, 589, the indictment was held to be defective, because the day of the month, and the year when the offence was alleged to have been committed, were expressed in figures. Where the indictment charged that the crime was com- mitted " on the third day of August eighteen hundred and forty-three," it was sustained. The State v. Lane, 4 Iredell, 113, Ruffin C. J. said: "Another objection is, that the indictment sets forth the time thus : ' On the third day of August eighteen hundred and forty-three,' without saying ' the year of our Lord,' or even using the word ' year.' This, we think, would have been fatal at common law ; and we cannot but express a regret, that there should be, need- lessly, a departure from the ancient forms in a point in which conformity is so easy and contributes so much to precision, eveii though it be not necessary. But we are obliged by previous adjudications to hold, that under the act of 1811, Bev. Sts. ch, 35, § 13, this indictment is sufficient. Indictments in the County and Superior Courts are now placed on the same ground. In The State V. Dickins, 1 Haywood, 406, the time was stated in figures, and held good, because the meaning was as well known to the court as if expressed in letters, and the indictment was therefore ' intelligible,' as required in the act of 1784. So when the caption was ' Fall term 1822,' and the indictment charged the time to be ' the first day of August in the present year,' it was sustained. The State 120 LEADING CEIMINAL CASES. ». Haddock, 2 Hawks, 461. It will be observed, that in neither of those cases did the indictment expressly refer to the Christian era or any other epoch ; but they were, nevertheless, sustained as expressing a certain time, because the court understood them as referring to the era of our Saviour, as that is the universal reference in judicial proceedings here as well as in common usage. This indict- ment was found in the year 1843, and that being in fact the year of the Christian era, it is judicially intended to mean the year of that era." In The State v. Hodgeden, 3 Vermont, 481, in the indictment, the characters and figures used were "a. d. 1830," and they were held to be sufficient. The report of this case is open to the criticism that it does not state in what part of the indictment those letters and figures were used. In The State v. Seamons, 1 Iowa, 418, the offence was charged to have been committed " on the seventh day of November, A. D. 1847." This was held sufficient. See also Winfield v. The State, 3 Iowa, 339. In Rawson v. The State, 19 Connecticut, 292, the allegation was, " the 14th day of May a. d. 1847." And was held to be sufficient. Also, in The State v. TuUer, 34 Connecticut, 280, where the era was not specified, and the dates were in figures. In Hall v. The State, 3 Kelly, 18, the oiFence was charged to have been committed " on the twenty-second day of March in the year eighteen hundred and forty-six." It was objected that the indictment did not state the era, or period, from which the date began. The court said: " It may fairly be presumed to have been in the year of our Lord 1846, or in the year 1846 of the Christian era." See also Engleman v. The State, 2 Indiana, 91. In The State v. Egan, 10 Louisiana Annual, 698, the allegation was, "the 7th day of April in the year eighteen hundred and fifty-four," and was held to be sufficient. In Regina v. Eimpton, 2 Cox C. C. 296, Parke B. doubted whether, in an indictment for perjury, an averment of the materiality of a thing o.ccurring on " Monday, the 29th of June in the year 1846" was sufficient after verdict, as the proper course is either to state the year of our Lord or the year of the monarch's reign ; and he left the prisoner to his writ of error. In several of the United States, figures and abbreviations in the caption of an indictment have been held not to vitiate. In The State v. Gilbert, 13 Vermont, 647, the words " Anno Domini," in the caption, were held sufficient. In Ala- bama an indictment was sustained on the ground of long established usage, in the caption of which, the time of its finding was stated in figures. The State v. Raiford, 7 Porter, 101. In Kelly v. The State, 3 Smedes «fe Marshall, 518, it was assigned for error, that " the day and year in which the court was held, and the indictment found, is stated in figures." The court held without noticing any distinction between the use of figures in the caption and in the body of an in- dictment, that it was sufficient. In Barney v. The State, 5 Yerger, 186, the indictment contained a " precedent statement," as follows : " Circuit Court, November term 1829." This was held sufficient, as the term at which the indictment was found, appeared on record by a distinct entry. The proper dis- tinction between the use of figures and abbreviations in the caption, and in the body of an indictment, was observed. A similar decision was also made in an earlier case in thfe same State. The State v. Smith, Peck, 165. In The State v. Reed, 35 Maine, 489, it was held that a complaint charging an offence to have been committed on the " 14th day of December a. d. 1850," is valid. From the report of the case it does not appear whether or not the THE STATE V. BEBBIAN. 121 magistrate had final jurisdiction. Tenney J. in delivering the opinion, said: " The use of Arabic numeral characters has been long adopted in contracts and other documents, and no want of certainty is perceived to be the result. And the nature and cause of a criminal complaint is not rendered obscure in any degree by reason of dates being in those characters. Such abbreviations as occur in the complaint, which we are considering have been for a long time used, and their meaning is as well understood as if the words which they repre- sent were written at length. It has not been satisfactorily shown, that a com- plaint containing dates in numeral characters, and the abbreviations of ' a. d,' for ' the year of our Lord,' fails to be according to the law of the land. The statutes of England, which have been cited for the purpose of showing the com- plaint defective, are not such as are binding authority here. The acts of the 4th year of Geo. II. ch. 14, and 6 Geo. 11. ch. 26, we are not satisfied have ever been adopted as a part of the common law of this country. The practice which has prevailed in this respect, it is believed, has not been uniform even in this State, and authority is not so clear as to warrant the decision that a complaint for . such a cause is essentially defective, though we think it would be better for crimi- nal pleaders to adhere to the ancient practice which has generally been adopted to frame complaints exclusively in the English language." Commonwealth v. Hagarman, 10 Allen, 401, 402. Commonwealth v. Walton, 11 Allen, 238, 240. In Massachusetts it has been held, that a complaint in a case where the magis- trate had final jurisdiction, is suflSciently certain, in which the time of the offence is expressed by the letters a. d. preceding the words expressing the year, and in which the figure " &" is used in material parts. Commonwealth v. Clark, 4 Gushing, 596. A complaint which states the year of the commission of the offence in figures only, without prefixing the letters "a. d." is insufiicient. Commonwealth v. McLoon, 5 Gray, 91. The offence was alleged to have bepn committed " on the fifteenth day of July 1855." Merrick J. : " The figures ' 1855 ' are not accompanied by any words or letters, qualifying or expressing their meaning, or indicating the particular era to which they refer. If it should be said that, notwithstanding this omission, it is not difficult to con- jecture truly what was the time intended by the pleader who drew the complaint ; the answer is, that this is not enough. The rule of law must be complied with ; it does not allow any thing to be left to conjecture. What was intended should have been intelligibly and unambiguously expressed. Forms and technical rules may seem sometimes to be unnecessarily strict ; but it should be remembered that they were devised as a reasonable security to an individual subject or party, in his contest with the State, when arraigned upon a criminal accusation. They ought not, therefore, to be lightly disregarded or negligently relaxed. To make the allegation of time in the complaint sufficient, there should, at all events, have been words, or at least letters, which have acquired an established use in the English language, so added to or connected with the figures contained in it, as to describe or indicate with certainty the era to which it was intended that they should refer." In Commonweallth v. Hutton, 6 Gray, 89, the complaint, which was held to be insufficient, contained no allegation of time except " the third day of June instant," and no reference to the date of the complaint. And in Commonwealth v. Keefe, 7 Gray, 332, in which the date was rejected as sur- plusage, the complaint did not refer to it, but duly set forth the time of the commission of the offence in words at length. In CommonwealMi v. Hutton, 122 LEADING CRIMINAL CASES. 6 Gray, at p. 90, Metcalf J. quoted the following language of Lord Denman : " On_;;the first impression we always feel desirous to get over objections of this kind,|if we can ; but we must abide by established rules. The objection is one which we cannot avoid giving effect to. We shall thus induce more accuracy in future." The Queen v. Bloxham, 6 Queen's Bench, at p. 633." It has been de- cided that the date of the jurat may be expressed in figures. Commonwealth v. Keefe, 7 Gray, 332. Commonwealth v. Hagarman, 10 Allen, 401. In several of the United States, this rule of pleading has been the subject of legislation. Lazier v. The Commonwealth, 10 Grattan, 708. Cady ». The Com- monwealth, 10 Grattan, 776. Hampton v. The State, 8 Indiana, 336. Johnson V. The State, 2 Butcher, 313. Rex v. Furnital.^ Easter Term 1821. Burglary — Indictment. On an indictment for burglariously breaking and entering a dwelling-house, and then and there stealing goods therein, but omitting to state the intent, the prisoner may well be convicted of the burglary, if the larceny be proved, but not otherwise. But it is the better course first to charge the intent, and then to state the particular felony which has been committed. The prisoner was tried before Mr. Justice Park, at the Lent assizes for the county of Stafford, in the year 1821. The indictment charged the prisoner with burglariously break- ing and entering the dwelling-house of one Thomas Rogers (omit- ting the words " with intent to steal "), and twenty-four knives, &c. of the goods and chattels of the said Thomas Rogers, in the said dwelling-house, then and there found, feloniously and burglari- ously stole, took, and carried away, &c. The indictment contained only this one count. ^ The facts were all clearly proved, both as to the burglary and the larceny, and the prisoner was convicted. I After the learned judge had passed sentence of death upon the prisoner, a doubt occurred to him whether the omission of the words " with intent to steal " (although the indictment afterwards ' charged an actual stealing) would not vitiate this as an indictment for burglary. The learned judge thought it quite clear that if the larceny had been negatived by the jury (as, for instance, if the ' Kussell & Kyan C. C. 445. JONES V. THE STATE. ' 123 property had been laid in the wrong person), although a complete burglary had been, proved, no sentence could have been passed upon an indictment where the burglary was not fully stated. In Starkie Grim. PL vol. ii. p. 414, the precedent there given of an indictment for burglary contains the words " with intent to steal." The judge however was ultimately of opinion, from what was stated in 1 Hale P. C. 559, § 5, and the three following paragraphs, that the conviction in this case was right, although it was evident Lord Hale thought indictments for burglary ought to contain the words "with intent to steal." The judge respited the execution of the sentence for the pur- pose of taking the opinion of the Judges upon this case, that there might be an uniformity of practice in preparing these indictments. In Easter term 1821 all the Judges met and considered this case ; they were of opinion that on an indictment like this, charg- ing that the prisoner burglariously broke and entered a dwelling- house, and then and there stole goods therein, the prisoner might be well convicted of the burglary if the larceny was proved, secus, if not ; but that it was better in all cases of burglary of this sort to charge the intent to steal, as well as the stealing, according to Lord Hale's advice, 1 Hale P. 0. 559. The Judges held the conviction right. Jones v. The Statb.^ December Term 1840. Burglary — Indictment. Upon an indictment for burglariously breaking and entering a dwelling-house, and stealing goods therein, the prisoner may be convicted of the burglary, if the lar- ceny be proved. And in such case it is not necessary to allege an intent, to steal; as proof of the lar- ceny is sufficient evidence of the intention. Writ of error to reverse a judgment of the Court of Common Pleas. ' 11 New Hampshire, 269. 124 ■ LEADING CRIMINAL CASES, At the January term in the year 1839 of the Court of Common Pleas, the plaintiif in error was indicted for burglary. The indictment set forth that tlie said Jones, in the night-time of the 14th day of January 1839, broke and entered the house of one Coifin, at Alton, and stole therefrom a silver watch. Upon this indictment the prisoner was tried in the Common Pleas, convicted, and sentenced to imprisonment for life. Afterwards, this writ of error was brought, and the following error, among others, was assigned ; namely : — That the indictment does not allege any intent with which the said Jones broke and entered the said dwelling-house. 6rot)e,-Attorney-General, for the State. Hale, for the prisoner, cited the following authorities : 2 Hawkins P. C. 164. 1 Raymond 2. 2 Hale P. C. 336. 6 Bast, 474. 2 Bur- row, 1037. 5 Rep. 122. 4 Id. 42. 11 Id. 37. 2 Bast P. C. 474. 2 Term R. 687. 2 Hawkins P. C. 354. 1 Massachusetts, 516. 4 Carrington & Payne, 571. 10 Barnewall & Cresswell, 89. 1 Bacon Ab. 336. 1 Hawkins P. C. ch. 39, § 17. Gilchrist J. The prisoner is indicted for breaking and entering a dwelling-house, in the night-time, and stealing ; and the only ques- tion is, whether the indictment should have alleged an intent to steal. The further allegation of an intent to steal would not have vitiated the indictment ; for we have held, in accordance with all the authorities, that the indictment may allege a breaking and entering with intent to steal and an actual stealing. The State v. Squires, 10 New Hampshire, 37. But it seems to be well settled by the authorities, that in an indictment for burglary, the allegation and proof of the stealing are sufficient, without an averment of an intent to steal. In the case of Rex v. Burnival, Russell & Ryan C. C. 445, the indictment charged the prisoner with burglariously breaking and entering a dwelling-house, and stealing. The burglary and the larceny were both proved, and the prisoner was found guilty. Mr. Justice Park, before whom the prisoner was tried, took the opinion of the Judges upon the 'question, whether the omission of the words " with intent to steal " would vitiate the indictment ; and all the Judges were of opinion that upon an indictment in this form the prisoner might well be convicted of the burglary, if the stealing were proved ; secus, if not ; but that it was better to charge the JONES V. THE STATE. 125 intent to steal, according to Hale's advice — 1 Hale P. C. 559 ; so that, if the theft be unsupported, the prisoner may still be convicted on his evil intention. There are many cases in the books, from an examination of ■which it vrould seem that this form has been followed without exception being taken for the reason now given. Thus in the case of Eex v. Comer, 1 Leach 0. C. (4th ed.) 36, where the prisoner was indicted for breaking and entering and sl^pal- ing, it was held by nine Judges unanimously, that where the felony was laid to constitute the burglary, and not the intention to com- mit the felony, the acquittal of the felony included an acquittal of the burglary also. . • So in the case of Eex v. Butterworth, Eussell & Eyan C. C. 520, it was held that upon an indictment for burglary and larceny against two, one may be found guilty of the burglary and the steal- ing, and the other of the stealing only. And it is held that where an actual stealing is charged in burglary, it must be proved, and proof of an intent to steal is not sufficient. It is necessary to ascertain with exactness the felony actually intended, and it must be laid in the indictment, and proved, agreeably to the fact. Thus where upon an indictment for burglary and larceny in stealing goods, it has appeared that there were no goods stolen, but that the burglary was with intent to steal, it has been holden that the indictment was not supported by the evidence. The King v. Vandercomb and Abbott, 2 East P. C. 519 ; 2 Leach C. C. (4th ed.) 708 ; ante Vol. I. p. 516. Where the indictment charges a burglary, with intent to com- mit a felony, it will be supported by evidence of a felony actually committed ; and it seems sufficient in all cases, where a felony has actually been committed, to allege the commission of it, as that is sufficient evidence of the intention. 1 Hale P. C. 560. 2 East P. C. 514. Eoscoe Grim. Ev. 281. We are therefore of opinion that the indictment is not defective. Judgment affirmed. An indictment for burglary, either at common law or under the statute, in order to be valid to support a conviction, must comprise certain essential points in addition to the ordinary requisites to an indictment, and these essential points we shall now proceed to consider. Hale has furnished us with the follow- ing precedent: Quod J. S. 1 die Julii anno, etc. in nocte ejusdem diei vi et armis domum mansionalem A. B. felonic^ et burglarit^r fregit et intravit, ac ad tunc et ibidem unum scyphum argenteum etc. de bonis et catallis ejusdem A. 126 LEADING CRIMINAL CASES. B. in eadem domo inventis felonic^ et burglarit^r furatus fuit, cepit et asporta- vit ; or if no theft were actually committed, then ex intentione ' ad bona et catalla ejusdem A. B. in eadem domo existentia felonic^ et burglarit^r furandum, capi- endum et asportandum, or &k intentione ad ipsum A. B. ibidem felonic^ inter- ficiendum contrEi pacem etc. 1 Hale P. C. 549. And upon this precedent he has the following remarks, which he divides into five distinct clauses, each of them essential to the constitution of an indictment for burglary : — I. That it is said noctanter, in the night-time, or nocte ejusdem diei, in the night of the same day, for if it be in the daytime it is not burglary. Lewis v. The State, 16 Connecticut, 32. Commonwealth v. Mark, 4 Leigh, 658. Thomas V. The State, 5 Howard (Mississippi), 20. The State ». Wilson, Coxe, 439, 440. n. That it be said burglarit^r, burglariously, for it is a legal word of art, without which burglary cannot be expressed with any kind of other word or cir- cumlocution, and therefore where the indictment is bargalrit^r, instead of bur- glarit^r, it makes no indictment for burglary, — so if it be burgent^r. m. It must be fregit et intravit, " broke and entered," for it is held, that breaking without entering, or entering without breaking, makes not burglary ; yet (Trin. 5 Jac. B. Regis) an indictment quod felonic^ et burglarit^r fregit domum mansionalem, etc. was a good indictment for burglary, that the entry is sufficiently implied, even in an indictment by the words burglarit^r fregit, but the safest and common way is to say, fregit et intravit. Fielding's Case, Dyer, 58, 99. IV. It must be said domum mansionalem, the dwelling or mansion-house, where burglary is committed in a house, and not generally domum, for that is too uncertain, and at large. V. It must be alleged that the prisoner committed a felony in the same house, or that he broke, and entered the house to the intent to commit a felony. 1 Hale P. C. 549, 550. It is to be observed here, firstly, that Hale does not make any mention of the particular day, as being essential in indictments for burglary. And we find a passage in Lord Coke which accords herein with Hale. " At the 12th sessions of the peace, holden at Norwich for the county of Norfolk, anno 32 Eliz. one Syer was indicted for burglary, supposed to be committed 1 Augusti anno 31 Eliz. whereunto Syer pleaded not guilty. And upon the evidence it appeared, that the burglary was committed 1 Septemb. anno 31 Eliz. so as at the time alleged in the indictment there was no burglary done ; and, it was conceived, that the very true day in the indictment was necessary to be set down in the indictment, for that the judgment doth relate to the day in the indictment, and so avoids feoffments, leases, &c. for that as it was also conceived, the feoffee, lessee, &c. when the attainder is upon a verdict, should not falsifie in the time of the felony ; and thereupon the jury found Syer not guilty. And at the same sessions, Syer was again indicted for the same burglary, done 1 die Septembris anno 31 Eliz. when in truth it was done. And he that gave the charge at that sessions doubted whether upon this matter Syer might plead auter fois acquit for the same burglary (for, seeing the offender is allowed no counsell, the court 1 An omission of the words, "ad tunc et ibidem," after the allegation of the intent does not vitiate the indictment. Commonwealth v. Doherty, 10 Gushing, 62. BEX V. FUENIVAL. JONES V. THE STATE. 127 ought to do him justice, and assigne him counsell in favorem vitee, though he demand it not, to plead any matter in law appearing to the court for his dis- charge) ; and thereupon he stayed the proceedings against him, and the assizes being at hand, he acquainted the justices of assize — Wray C. J. and Peryam J. — with this case, and with the doubts conceived thereupon, who answered him, that the like case had then been lately propounded by Peryam J. to all the jus- tices of England ; and by them three points were resolved ; (1) That the Crown was not bound to set down the vely day when the treason, felony, &c. was done, but the day set down in the indictment being before or after the offence done, the jury ought to finde him guilty, if the truth of the case be so ; and if it be alledged before the offence done, to finde the day when it was done in rei veri- tate, for they are sworn ad veritatem dicendam, and then the forfeiture shall relate but to the day in the verdict, which was the day of the offence done, and not to the day in the indictment." Syer's Case, 3 Inst. 230. From the opinion of the Judges in this case it is clear, that in an indictment for burglary, it is not necessary to lay the particular day when the felony was committed, but on proof of its being committed in the night-time of some day previous to the framing of the indictment, it would be suflScient. But an indictment requires that some pre- cise day should be laid, though proof of the day on which the burglary has been committed need not, as we learn from the above passage of Lord Coke, corres- pond therewith. And we observe that the precedent above given from Lord Hale mentions a certain day. Eelyng cites this case of Syers, upon the same point being raised in favor of Sir Henry Vane upon his trial for high treason. " Although the treason of compassing the king's death,'' he says, " was laid in the indictment to be 30th of May 11 Car. II. ; yet upon the evidence it appeared, that Sir H. Vane, the very day the late king was murdered, did sit in council for the ordering of the forces of the nation against the king that now is, and so continued all along until a little before the king's coming in. " It was resolved, that the day laid in the indictment was not material, and the jury are not bound to find him guilty that day, but may find the treason to be, as it was in truth, either before or after the time laid in the indictment, as it is resolved in Syer's Case, 3 Inst. 230. And accordingly in this case the jury found Sir H. Vane guilty^of the treason in the indictment the 20th January, 1 Car. II. which was from the very day the late king was murdered, and so all his forfeitures relate to that time, to avoid all conveyances and settlements made by him." Kelyng, 16. Again, upon the trial of Mr. Townley in 1746 for high treason, his counsel objected, that the overt acts, which were for levying war, were charged in the indictment to have been committed on the 10th October, and on that day only, whereas all the evidence was of overt acts committed on different days subse- ' quent to that time ; but the court overruled the objection. Foster, 8. And in a note subjoined to this case in Foster, whether by the learned judge himself or his nephew, Mr. Dodson, who published the second edition of his work, does not appear, we find " that Lord Balmerino, who had neither counsel nor witness at his trial, insisted on the same point ; and the House, out of their extreme ten- derness in case of life (after the Lord Chancellor had delivered his opinion clearly, that the time is not material, provided the treason be committed before the bill found), put -the question to the Judges; Lord C. J. Lee delivered their 128 LEADING CRIMINAL CASES. unanimous opinion, that the day is not material, provided the treason be proved to have been committed before the finding of the bill." Foster, 9. That the law is the same in cases of murder, we learn from another passage in Hale. "If A. be indicted, that the first of July 21 Car. 11. he robbed or murdered B. and upon evidence it appears, that it was committed another day or year, either after or before the time laid in the indictment, yet this proves the issue for the king." 2 Hale P. C. 291. The above extracts abundantly prove that it is not necessary in burglary to lay the precise day on which the oflfence may have been committed ; and that the indictment may be good, even if, at the day laid, no burglary had actually taken place. The precedent furnished by Lord Hale does not specify the particular hour of the night at which the burglary took place. But elsewhere he says: "Where the time of the day is material to ascertain the nature of the offence, it must be expressed in the indictment — as, in an indictment for burglary it ought to say, tali die circa horam decimam in nocte ejusdem diei felonic^ et burglarit^r fregit, yet by some opinions burglarit^r carries a sufficient expression, that it was done in the night-time." 2 Hale P. C. 179. Kegina i>. Thompson, 2 Cox C. C. 445. " The term burglariously," says Hinman J. in Lewis u. The State, 16 Connec- ticut, 32, 34, " is understood in modern professional language, to imply that the act was done in the night." And it may be remarked obiter, that the words ejusdem diei presuppose the mention of a certain day, at all events, laid in the indict- ment. And that the precise hour should, at all events, be mentioned, we have the authority of East, founded on a case actually decided on this point. " The indictment must also not only state the fact to have been done in the night of such a day, but it ought also to express at about what hour of the night it hap- pened ; though it does not seem necessary that the evidence should strictly cor- respond with the latter allegation. In Waddington's Case the indictment for burglary alleged the fact to have been committed in the night, but did not express at or about what hour it was done. Gould J. held the indictment insuf- ficient as for a burglary, and directed the prisoner to be found guilty of simple larceny only. He said, ' that as the rule then established was, that a burglary could not be committed during the twilight, it was therefore necessary to specify the hour, in order that the fact might appear upon the face of the indictment to have been done between the twilight of the evening and that of the morning.' " Waddington's Case, 2 East P. C. 513. The State v. G. S. 2 Tyler, 195, 200. But see Regina v. Thompson, 2 Cox C. C. 377, Patterson J. In Massachusetts it has been held, in the case of Commonwealth u. Williams, 2 Gushing, 582, that since the passing of statute 1847, ch. 13, defining " the time of night-time in criminal prosecutions," it is sufficient to allege, generally, that an offence was committed in the night-time, without designating the particu- lar hour of the night ; and by such allegation is to be understood the period of night-time as defined in that statute. In this case Dewey J. said: "The alle- gation in the indictment is, that the defendant broke and entered the city hall on the twelfth day of November 1847 ,_ ' in the night-time of said day.' It has been considered proper and necessary, until the statute of 1847, ch. 13, and such are the usual precedents, to state some particular hour of the night in which the burglary was alleged to have been committed. The reason for this seems to EEX V. PUBNIVAL. JONES V. THE STATE. 129 have been, that one might, with a felonioua intent, have broken and entered a building, at a time properly called, in popular language, night-time, and yet not have committed the crime of burglary : the time in which that oflfence can be committed being not so far extended as to embrace the night-time, in the ordi- nary use of that word, but a period when the light of day had so far disappeared, that the face of a person was not discernible by the light of the sun or twilight. But the statute just cited has defined ' night-time' for all purposes of criminal proceedings. Wherever ' night-time ' is now used in an indictment, as descrip- tive of the time of the commission of the oflfence, it is to be understood of the night-time as defined by this statute. The allegation, that the breaking and entering were in that night-time, is virtually an allegation that the offence was committed during the time between one hour after sunsetting on one day, and one hour before sunrising on the next day." In Commonwealth v. Lamb, 1 Gray, 493, it was held, that an indictment on the Rev. Sts. ch. 126, § 5, which imposes a punishment on " every person who shall wilad'y and maliciously burn, either in the night-time or in the daytime," any building therein mentioned, is not defective by reason of its alleging the offence to have been committed in the night-time between the hour of sunsetting on one day and the hour of sinrising on the next day, notwithstanding St. 1847, ch. 13 ; although this error in the indictment would be fatal to sustaining the indictment, as charging the burning a building in the night-time. But that is immaterial, as the punishment author- ized by the statute for burning the buildings therein described, either in the day or night time, is the same. Lastly, the allegation of time must be repeated in the averment of every dis- tinct material fact ; but after the day and year have once been stated with cer- tainty, it is afterwards, in subsequent allegations, sufficient to refer to them by the words " and then" (et adtunc), and the effect of these words is equivalent to an actual repetition of the time. 1 Starkie Crim. PI. 2d ed. 68. 1 Hale P. C. 178. But the word copulative " and," without the addition of " then," would be insuflicient. 2 Hawkins P. C. ch. 23, § 88. Cro. Eliz. 739. n. With regard to the second essential qualification in an indictment for burg- lary, as above laid down by Hale, in the first place every indictment for felony must always allege the fact to haye been done felonicS, feloniously. 2 Hale P. C. 184. And, without the insertion of such word, an indictment for burglary would fail ; nor is the word " feloniously " sufficient, unless the word " burglari- ously" be added. "For," as Hale says, "it is a legal word of art, without which burglary cannot be expressed with any kind of other word, or other cir- cumlocution." 1 Hale P. C. 550; 2 East P. C. 512. In Long's Case, Coke, speaking of the bad Latin which should not impeach judicial writs, says : " The same law of indictments, as if in an indictment it be prcefato Beginos where it should be prmfatce Begince, or prcefatm Begi for prcefato Begi, or the like, foras- much as the word is Latin and significant, and although it be not true Latin, the indictment for such incongruity shall not be quashed. But if the word be not Latin, nor allowed by the law as vocabulum artis (or every art and science has propria vocabula artis), but is insensible, there if it be in a point material, it makes the indictment insufficient, as burglaria, burglaritfir, murdrum, felonic6, and the like, are vocabula artis, known to the law, and therefore if such words, VOL. II. 9 130 LEADING CRIMINAL CASES. or the like, are mistaken in an indictment, so that there is in a material place a word insensible, which is not Latin, nor any word known in law, it makes the indictment vicious and insufficient, as murdredum, for murdrum, or hwgarit&r for burglaritir, felonitir iov felonici. Long's Case, 5 Eep. 121. And how strict has been the attention paid to the word " burglariously," in indictments for burglary, will be seen from the following case. "Richard Vaux brought appeal of burglary against Thomas Brooke, and declared that the defendant domum mansionalem prsedicti Ricardi Vaux felonicfe et burgalit^r fregit, &c." The defendant pleaded not guilty, and by a jury of the county of Bucks, which appeared this term at the bar, he was convicted of the felony and burglary aforesaid, and the defendant's counsel moved, in arrest of judgment, that the declaration was insufficient, because the word hurg- aliter was of no signification, but the declaration ought to be bur'glariter, or burgularitlr, and the offence is called burglary, or burgulary, and not burgalry, for there wants an I between g, and a, and in the latter syllable I is inserted in lieu of r, and burglaritfir est vox artis, as felonici, murdravit, rapuit, excambium, warrantizare, frankalmoign, frank-marriage, and several others, which cannot be expressed by any periphrasis or circumlocution ; and this word burglary is derived from these two words, burgh' and laron, and therefore burglary, or burgulary, is sufficient, but not burgalry, for that wants sense ; and many prece- dents warrants burgularitir to be good, but none was found to warrant burga- liter ; and upon this exception Cur. adv. vult, till the next term ; and in the mean time the plaintiff died ; and that was shown to the court by the defendant's counsel as amicus curiae (6 Mod. 143), and made manifest by sufficient testi- mony, and thereupon the court was moved, that forasmuch as for this felony and burglary he was once convicted at the suit of the party, he could never be charged with the same offence at the suit of the king, that he might be thereof discharged, and upon that the court took advice ; and it was resolved, that if the declaration had been sufficient, then being convicted at the suit of the party, he should not again be impeached at the suit of the king ; but it was resolved that the declaration here was insufficient, and, therefore, he was discharged." Brooke's Case, 4 Rep. 39 ; same case alluded to by Crompton, fol. 34. In Massachusetts, it has been decided, that the statute definition of house- breaking has done away with the common-law requisitions of the offence, so that burglarit^r no longer makes a part of the quo modo of the crime. TuUy v. The Commonwealth, 4 Metcalf, 357. " We call this decision an important one," says George Bemis, Esq. in an interesting article in The Law Reporter, vol. DC. p. 387, "because in connection with a class of cases which have begun to form a Lne of precedents in the Massachusetts courts, Joslyn v. The Common- wealth, 6 Metcalf, 236 ; Devoe v. The Commonwealth, 3 Metcalf, 316 : Com- monwealth V. Squire, 1 Metcalf, 258, the old landmarks are fast vanishing in the jurisprudence of that respectable Commonwealth, before the supposed efficacy of statute phraseology, — phraseology, too, which has hardly changed a whit for the last half century, and under which common-law technicalities have hitherto been deemed indispensable." See also an article by the same writer in The Law Reporter (n. s.) vol. VI. p. 199. I Lambard, in his Justice, says it comes from " Bower," an inner chamber. BEX V. PUBNITAL. JONES V. THE STATE. 131 But if the word burglcmoualy, in the indictment, were merely misspelt, and were idem sonans, as if it were berglariously instead oi burglariously, such error would not vitiate the indictment." Williams v. Ogle, 2 Strange, 889. Rex v. Shakespeare, 10 East, 83. Archbold Crim. PL (14th ed. 181) 174. Lord Hale complains of the strictness necessary to be observed in these tech- nicalities of indictments. "In favor of life," he says, "great strictness has been in all times required in points of indictments, and the truth is, that it is grown to be a blemish and inconvenience in the law and the administration thereof. More oflfenders escape by the over easy ear given to exceptions in indictments than by their own innocence, and many times gross murders, burg- laries, robberies, and other heinous and crying offences, escape by these unseem- ly niceties, to the reproach of the law, to the shame of the government, to the encouragement of villany, and to the dishonor of God. And it were very fit that by some law this overgrown ciiriosity and nicety were reformed, which is now become the disease of the law, and will, I fear, in time grow mortal, without some timely remedy." 3 Hale P. C. 193. Brown d. The Commonwealth, 8 Massar chusetts, at p. 65. Commonwealth v. Bugbee, 4 Gray, at p. 408. But it must be remembered that in Hale's time prisoners had not the benefit of the assistance of counsel in cases of felony to the extent they have now, except in high treason, and, in addition to this, that the net spread by an indictment for burglary is a very wide one, for on failure of proof of the actual burglary, a prisoner may be convicted according to the circumstances of the case, of breaking the dwelling- house and stealing therein, of stealing in the dwelling-house to the value of £5, or of a simple larceny, and that all upon one indictment. m. With regard to the third point mentioned by Hale, the words fregit et intravit, — AnglicS, " broke and entered," are both necessary to support an in- dictment for burglary, for, as we have already seen, the breaking without the entry, and the entry without the breaking, are insufficient. In the indictment under the statute 7 & 8 Geo. IV. ch. 29, § 11, the words Jreaft oMf used there must be strictly followed. " The prisoner was indicted at the Central Criminal Court February 1835, for that he, about the hour of six in the night of the 27th of January, at the parish of St. George, Bloomsbury, being in the dwelling-house of James Henry Henderson, did steal a cloak and other ar- ticles enumerated, and having committed the said felony about the said hour, feloniously and burglariously did break to get out of the said dwelling-house. There was a second count, which charged that the prisoner being in, and having stolen, did break and get out. Clarkson, for the prisoner, objected that the in- dictment was bad, inasmuch as the words of the statute 7 &8 Geo. IV. ch. 29, § 11, were not followed. Vaughan J. and Patteson J. were of the same opin- ion, and the jury were charged that they must confine themselves to the question of whether the prisoner was guilty of the simple larceny." Rex v. Compton, 7 Carrington & Payne, 139. rV. With regard to the fourth point, the word Tiouse would be insufficient to sup- port an indictment for burglary. 1 Hawkins P. C. ch. 17, § 17. But Hawkins Bays in a subsequent part of the same section, " Staundeforde and Anderson mentioned precedents of indictments of burglary in domo without adding man- 132 LEADING CRIMINAL CASES, sionali. However the constant course of late precedents and opinions makes it certainly very dangerous, if not an incurable fault, to omit the word man- sionalis in an indictment of burglary in a house ; and therefore, without question, it ought always to be inserted where the truth of the case will bear it." The term mansion-house, domus mansionalis, used by Hale, has grown into disuse, and has become confined in its application to houses of a larger description than common, and the word dwelling-Jioiise is now generally used. But the word "mansion-house " sufficiently describes a dwelling-house. Commonwealth v. Pen- nock, 3 Sergeant & Kawle, 199. The indictment must lay with preicision whose dwelling-house it is in which the burglary has been committed, and if this be not laid correctly there can be no conviction either for burglary nor for a larceny committed in such dwelling- house, to the value of £5. "At the Old Bailey, February session 1783, the prisoner was indicted for burglary in the dwelling-house of John Snoxall, and stealing goods therein, the property of Ann Lock. It appeared that it was not the dwelling-house of Snoxall, and it was therefore held by BuUer J. and Gould J. that the prisoner could not be found guilty either of the burglary or of steal- ing to the amount of 40s. in the dwelling-house, under the 12 Anne, ch. 7, for it is essential in both cases to state in the indictment the name of the person, in whose house the offences are committed." White's Case, 1 Leach C. C. (4:th ed.) 262; 2 East P. C. 613. So in October 1785 " William Woodward was in- dicted for stealing in the dwelling-house of Sarah Lunns. It appeared in evi- dence that her name was Sarah London. Sergeant Adair, Recorder, held the variance fatal to the capital part of the indictment." Woodward's Case, 1 Leach C. C. 4th ed. 116 note. In Ohio, it is sufficient to lay the ownership of the house in a married woman who lives apart from her husband, and has the occupancy and control of the dwelling. Ducher v. The State, 18 Ohio, 308. In Cole's Case, M. 37 & 38 Eliz. B. R., " an indictment quod shopam cujusdam Ricardi (without adding the surname) burglarit^r et felonies fregit et intravit, it was admitted for the matter by the Court of King's Bench to be good; but doubted whether it was good on account of the omission of surname." Cole's Case, 1 Hale P. C. 558. The reporter however says, it was holden good. Moor, 466 ; 2 East P. C. 613. In Moor it is said that a blank ^ was left for the surname. In 3 Chitty Crim. Law, 1098, it is said, " that there can be little doubt that at the present day such an omission would be considered as material." 2 Russell 47 note 4th ed. " In all cases of this description, if there be any, the slightest doubt, whether the house broken and entered should be described as the dweUing-house of A. B. or C, the pleader should obviate the difficulty by inserting counts alleging it to be the dwelling-house of A. B. and C. respectively." Archbold Crim. PI. 290, 7th ed. The word "of" sufficiently alleges the ownership of the property. Commonwealth V. Williams, 2 Cushing, 682. " Belongmg to one C. G." is also sufficient. Commonwealth v. Hamilton, 16 Gray, 480. Burglary may be committed in a church, at common law. Regina v. Baker, 8 Cox C. C. 681 (1849). In this case Alderson B. said; " I take it to be settled law, that burglary may be committed in a church, at common law. I REX V. PUENIVAL. JONES V. THE STATE. 133 so held lately on circuit. See Regina v. Nicholas, 1 Cox C. C. 218. An indictment for burglary in a church need not lay the offence as committed in a dwelling-house. " An iudictment," says Hale, "quod felonicA et burgla- riter fregit et intravit ecclesiam parochialem de D. eS, intentione, is a good indictment for burglary, for ecclesia is domus mansionalis." 1 Hale P. C. 656. But it is not necessary to say that a church is a mansion-house, for burglary in a church is a distinct burglary of itself. And Coke says : " They be burglars which break any house or church in the night, although they take away nothing.'' 8 Inst. 66. In the case therefore of a burglary in a church, the indictment should lay that the prisoner feloniously and burglariously broke and entered the parish church of the parish to which it belongs, with intent, &c. according to the circumstances of the case. 2 East P. C. 512. 2 Russell on Crimes, 46 note 4th ed. In some of the United States, this offence is now provided for by statute, which makes it a distinct felony to break and enter any church or chapel, and steal any chattel therein. But in a recent case Alder- son B. ruled that the acts of Parliament which particularly relate to offences respecting churches, do not destroy the offence at common law. Regina v. Baker, 3 Cox C. C. 681. Where an out-house having the same protection as the dwelling-house under the statute 7 & 8 Geo. IV. ch. 29, § 13, has been broken into, the offence may either be laid to have been committed in the dwelling-house, or in the building, parcel thereof. " In Garland's Case, the jury found specially that the prisoner broke and entered in the night-time (with intent to steal) , an out-house in the possession of George Shore, and occupied by him with his dwelling-house, mentioned in the indictment, and separated therefrom by an open passage eight feet wide ; and that the said out-house was not connected with the said dwelling- house by any fence including both. In Easter term, 16 Geo. IH. the Judges were of opinion that there should be judgment for the prisoner, for the jury should have found it pared of the dwelling-house if it were so." Rex v. Gar- land, Somerset Lent Assizes 1776, from Mr. J. Gould's MSS. 2 East P. C. 493. So also in Dobbs's Case, the prisoner was indicted for burglary in the stable of James Bayley, part of Ms dwelling-house. Dobbs's Case, '2 East P. C. 613. The parish in which the dwelling-house or church where the burglary has been committed must be stated in the indictment, and proved as laid ; the slightest variance is fatal. Purcell Crim. PI. 64. 2 Starkie Crim. PI. 437 note z. But it has been held that if it be not expressly stated where the dwelling-house is situated, it shall be taken to be situated at the place named in the indictment by way of special venue. Commonwealth v. Lamb, 1 Gray, 493. 2 Russell on Crimes, 47. 4th ed. The prisoner was tried and convicted before Mr. J. Bayley at the Lancaster Summer Assizes 1824, of stealing in a dwelling-house, but a doubt having oc- curred whether the house was sufficiently described in the indictment, the learned judge submitted the point to the consideration of the Judges. ' The indictment stated that the prisoner, on the 6th of August 6 Geo. IV. at Liverpool, in the county aforesaid, one coat, value 40s. of the goods and chattels of Daniel Jack- son, in the dwelling-house of William Thomas, then and there being, then and there feloniously did steal,' &c. The doubt was, whether it should not have been stated, ' in the dwelling-house of William Thomas there situate.' Indict- 134 LEADING CRIMINAL CASES. ments for burglary and arson generally contain such a statement, and so do indictments for breaking a house in the daytime, or demolishing a house. In Michaelmas term 1824, the Judges met and considered this case, and held that the indictment showed sufficiently that the house was situate at Liverpool, and that the conviction was therefore proper. Eex v. Napper, 1 Moody C. C. 44. So also in the case of Regina v. Brookes, who was tried for burglary at the Worcester Spring Assizes 1842, before Mr. J. Patteson. " The indictment al- leged that John Brookes late of Norton-juxta-Kempsey in the county of Worcester, laborer, and others (naming them) on the 4thdayof January 1842, in the night of the same day, with force and arms, ' at Norton-juxta-Kempsey ' aforesaid, in the county aforesaid, the dwelling-house of Thomas Hooke there situate, feloniously and burglariously did break and enter, &c. (charging a burg- lary in the usual form, and the stealing of certain articles therein mentioned) . Whitmore, for the prisoner, submitted that this indictment as to the burglary, was bad, because the place, Norton-juxta-Kempsey, at which the offence was alleged to have been committed, was not described by some word, importing some known division of the county, such as parish, vill, chapelry, or the like. Patteson J. I think that the name of the place, Norton-juxta-Kempsey, is sufficient of itself, without calling it either a parish or a vill, or any thing of that kind." Regina v. Brookes, Carrington & Marshman, 544 ; '2 Russell on Crimes 47, 4th ed. Where an indictment alleges a dwelling-house to be situate at the parish afore- said, the parish last mentioned must be intended. "The prisoner and two others were indicted at the Taunton Spring Assizes 1832, before Mr. J. Park, for that they ' of the parish of Walcot,' in the county of Somerset, being riotously and tumultuously assembled at the parish of St. Peter and St. Paul, in the city of Bath, did then and there feloniously, and with force, begin to demolish, pull down, and destroy a certain house of John Cooper and William Bishop, ' situate at the parish aforesaid.' It appeared that the house, which the prisoners had begun to demolish, was situate in the parish of St. Peter and St. Paul; but it was objected by Rogers for the prisoners, that the parish was not properly laid, because two parishes had been previously laid, and the indictment did not allege (as it ought to have done), that the house was in the parish last aforesaid. He cited as an authority 1 RoUe Rep. 223. On the part of the Crown it was ■urged, that the objection, if of any weight, ought to have been the subject of demurrer, as it was only an ambiguity, and for this was cited WaUbrd v. An- thony, 8 Bingham, 76. It was also contended that the words 'parish aforesaid'' referred to the parish of St. Peter and St. Paul, the last antecedent ; and Rex v. St. Mary's, Leicester, 1 Barnewall & Alderson, 327, was cited as decisive of the point. Parke J. after consulting with Mr. J. Gaselee, stated that the indictment, in his opinion, was sufficient, but still he thought it better to reserve the point. His lordship, on a following day, said he had fully considered the point, and was of opinion, that the parish aforesaid must relate to the last-mentioned parish, and that the indictment was therefore good." Rex v. Richards, 1 Moody & Robin- son, 177. The prisoners were indicted for a burglary at the Old Bailey Sessions 1814, in the dwelling-house of William Alexander Frampton, in the parish of St. Catharine Cree. It appeared in evidence that a warehouse, connected and occu- EEX V. PURNIVAL. JONES V. THE STATE. 135 pied with the dwelling-house, was in St. Catharine Cree, but the dwelling-house itself jras in the parish of St. Andrew Undershaft. The burglary was committed in the warehouse. One of the questions reserved for the opinion of the Judges was, whether the indictment properly laid the burglary to have been committed in the parish of St. Catharine Cree, but the Judges gave no opinion upon this point, having decided the case upon another ground. Rex v. Bennett, Russell, & Ryan C. C. 289. Where a dwelling-house is partly in one parish and partly in another, it has been held to be correct to lay the offence as committed in that parish, in which lies the part of the house broken into. In Regina v. Howell, 1 Cox C. C. 190, the prisoners were indicted for burg- lary at the Central Criminal Court, March 1845, before the late Recorder, upon the following indictment: " The jurors of our Sovereign lady the Queen, upon their oath present, that T. Howell, late of the parish of St. Edmund the King and Martyr in London, and within the jurisdiction of the Central Criminal Court, laborer ; F. Smith, late of the same place, laborer, and R. Franklin, late of the same place, laborer, on the 10th day of January in the eighth year of the reign of our Sovereign lady Victoria, by the grace of God, &c. about the hour of ten in the night of the same day, with force and arms at the parish afore- said, and within the jurisdiction of the said court, the dwelling-house of George Warriner, there situate, feloniously and burglariously did break and enter with intent the goods and chattels, in the. same dwelling-house then and there being, feloniously and burglariously, to steal, take, and carry away ; and then and there with force and arms, two rings of the value of five shillings of the goods and chattels of Felix Gatayes, in the same dwelling-house then and there being found, feloniously and burglariously did steal, take, and carry away, against the peace of our lady the Queen, &c.'' The house in which the burglary was committed was a tavern, of which George Warriner was the proprietor, and Felix Gatayes was a guest occupying a room in the said tavern. The outer door of the house always remained open during the day, and through this the pris- oners had made their way to the room in question, which they entered by means of a skeleton key. The tavern was situated within two parishes, the boundary line which separated them, running through the room of Gatayes. The door of the house, the door of the room, and a greater portion of the room ] itself were in the parish laid in the indictment ; but a chest of drawers from which the rings were abstracted was in the parish of St. Michael, Cornhill. Payne, on behalf of the prisoner Howell, submitted that there was a variance between the local description in the indictment and that proved. The prisoners were alleged to be of a certain parish, and this was referred to subsequently, in describing the dwelling-house as there situate, meaning the parish of St. Ed- mund the King and Martyr ; but it was proved in evidence that the dwelling- house was situate in two parishes, and therefore the allegation, which was a material one, was not sustained. It was true that the part of the house broken into was in the parish laid, but the statement was not that the breaking was in the parish, but that the dwelling-house was so. He then referred to Rex v. Ben- nett, Russell & Ryan C. C. 289, where a somewhat similar point was raised, but not determined. At any rate he was entitled to ask of the prosecutor 136 LEADING CRIMINAL CASES. whether they would rely on the burglary, or, relinquishing that, rest their case on the la cetiy of the goods. B. C. Robinson for the prosecution. It is not less true that the dwelling-house of a party is in a particular parish, merely because some small portion of it is in another parish. Every part material to the present indictment is situated as laid, and this constitutes the distinction between the present case and that of Rex V. Bennett. There the pa t broken was not in the parish laid, but was assumed to be parcel of a dwelling-house situate in the alleged pariah. A single dwelling, part of which is occupied by A., and another part by B., may be taken to be two, so that a burglary in B.'s portion may be alleged to be in his dwelling- house. This fhows that a house is severable when occupied by two persons, and why may it not be so when occupied by one ? As to the goods stolen being located in another parish, it is immaterial, since there is no necessity to allege stealing at all ; breaking, with intent to steal, is the gist of the charge, and as there were other goods in the same room, which were situated in the alleged parish, it will be a question for the jury whether the intent was not to steal them, as well as those which were actually stolen. The portion of the indict- ment therefore which sets out the stealing, may be rejected as surplusage, as far as the burglary is concerned. But still the jury may, if they think proper, convict of the simple larceny, for local description is for such purpose unneces- sary, and a stealing being alleged, the words there situate are superfluous, and may be struck out. The Becorder. The common sense of the matter seems to me to be that the dwelling-house may be laid to be in the parish, where all the acts necessary to support the charge were committed, although some part of it is in another parish ; but it is for you to consider whether it may not be safer to rely on the larceny alone, since, if I am wrong in my view of the point, the whole indict- ment will fail. B. G. Bobinson submitted that he was not bound to elect, and, considering that no property was found on the prisoners, though they were immediately apprehended, the jury might, perhaps, think that the larceny was not sufficiently proved. He deemed it right, therefore, that the whole case should go to the jury. The Recorder (in summing up) said : It appears to me that the indictment is sufficient. The objection relied on is, that the word dwelling-house has rela- tion to the whole house, and that as the whole house is not in the parish laid, there is therefore a variance. But whatever might have been the mode of access, or whether we take the outer door, or the door of the room itself, they are all in the alleged parish. It might have been charged that the dwelling- house was in two parishes, but I doubt whether that could have been correct, inasmuch as the part broken could only have been situated in one. It is true that the local description must be strictly proved, but I think it is here fully established by the evidence. I would, however, assuming that you believe the facts, recommend you to limit your verdict to the breaking with intent to steal, since it is clear that the stealing, if any, was in another parish. Or you may, in your discretion, omitting all reference to the burglary, limit your verdict to the mere stealing. The jury pronounced the following verdict: " Guilty of the offence of burg- REX V. PUENIVAL. JONES V. THE STATE. 137 lary, in the parish in the indictment mentioned; not guilty of stealing the goods.'' The Recorder respited the judgment until he should have an oppor- tunity of consulting the Judges on the point above raised. On a subsequent daj, the Recorder said that he had consulted two of the Judges on the above case, and they were of opinion that the evidence supported the indictment, and that the conviction was good. Regina v. Howell, 1 Cox C. C. 190. In Regina v. Brookes, Carrington &Marshman, 643, the prisoners were indict- ed at the Worcester Spring Assizes 1842, before Mr. J. Patteson, for breaking into a warehouse. ' ' The indictment charged that John Brookes late of the parish of St. Peter the Great, in the city of Worcester, laborer, John Attwood late of, &c. (naming all the other prisoners) the warehouse of Henry Webb and another, there situate, did break and enter, and one hundred knives, &c. of the goods and chattels of the said H. Webb, &c. then and there being found, then and there feloniously did steal, take, and carry away. It appeared in evidence that the parish of St. Peter the Great is partly situate in the county of Worces- ter and partly situate in the county of the city of Worcester. Whitmore, for the prisoners, submitted that the description of the parish, as laid in the in- dictment, was insufficient, and that the locality of the premises being mate- rial to this charge, it must be proved as laid. According to the allegation contained in this indictment, the whole of the parish of St. Peter was situate in the county of Worcester, but, according to the evidence, a part only of that parish was so situate. Pattbson J. I am of opinion that that is so, and the prisoners must be acquitted of the breaking into the warehouse, but they may be convicted of the larceny. Verdict, guilty of larceny. Regina v. Brookes, Carrington & Marshman, 643." So also, in the case of Rex v. Bullock, 1 Moody C. G. 324 note, which was an indictment for breaking into a house and stealing goods, the house was laid to be in the parish of Saint Botolph, Aldgate, and it was proved that the parish was Saint Botolph without Aldgate. The learned judge who tried the case (Littledale J.) directed an acquittal of the capital part of the charge, but allowed a verdict of guilty of the larceny. He afterwards however doubted the pro- priety of the conviction, and reserved the point for the opinion of the Judges. The Judges held, that as there was no negative evidence of there not being such a parish as Saint Botolph, Aldgate, the conviction was right. Where an indictment alleged that a burglary was committed " at the parish of Woolwich," and the prosecutor proved that the correct name of the parish was " Saint Mary, Woolwich," but the parish is called the parish of Woolwich in the Central Criminal Court Act (4 & 5 Wm. IV. ch. 36, § 2), it was held by Parke B. and Bosanquet J. who tried the case (November Session 1839) that as that act showed that the parish was known by the name of the parish of Woolwich, the indicttoent was sufficient. Regina v. St. John, 9 Carrington & Payne, 40. And see Regina v. Frowen, 4 Cox C. C. 266. In all cases where any difficulty is likely to arise respecting the local descrip- tion of the dwelling-house, different counts should be inserted in the indictment, varying it according to the circumstances. The allegation of place, as of time, must be repeated in the averment of every distinct material fact ; but after the place has been once stated with certainty, it is sufficient afterwards, in subsequent allegations, to refer to it by the words 138 LEADING CRIMINAL CASES. "there," or " there situate " (ibid&m in ancient indictments), and the effect of these words is equivalent to an actual repetition of the place. 1 Starkie Crim. PL 2d ed. 58. 1 Hale P. C. 178. 2 Hawkins P. C. ch. 26, § 78. It is however usual, in modern practice, to repeat the words, "in the said dwell- ing-house," or, " in the said dwelling-house then being," and, " at the parish aforesaid, in the county aforesaid." An indictment for house-breaking at the Worcester Summer Assizes 1841, after charging the prisoner with breaking and entering the house in the usual form, charged that he, forty-two pieces of the. current gold coin of this realm, called sovereigns, &c., in the same dwelling-house then and there being found, then and there feloniously did steal, take, and carry away, &c. Greaves, for the prisoner, objected that the words " then and there," were insufficient, and there ought to have been added to them, " in the same dwelling-house," but Col- eridge J. after referring to Regina v. Smith, 2 Moody & Robinson, 115, where Patteson J. had held a similar objection valid, said: " I had occasion to mention that case to my brother Patteson, and he seemed to think the decision was incorrect. I think the present indictment was sufficient." Regina v An- drews, Carrington & Marshman, 121. Where an indictment for burglary, at the Welsh Spring Circuit 1841, charged that the prisoner feloniously and burglariously, by night, the dwelling-house of one John Davies did break and enter, with intent one Alice Davies, in the said dwelling-house then being, violently, and against her will, then and there felo- niously to ravish and carnally to know, &c. (charging burglary with violence under the statute). E. V. Williams, for the prisoner, objected that the indict- ment was insufficient, and that as burglary was defined to be a breaking and entering of the dwelling-house, with intent to commit a felony therein, the indict- ment ought to have alleged the intent to be to ravish Alice Davies in the said dwelling-house, and not merely then and there. Coltman J. who tried the case, said he should certainly not stop the case on this objection, but would re- serve the point, if necessary, for the consideration of the Judges. The case was reserved, but the above point was not considered by the Judges, but they were all of opinion that the breaking and entering a dwelling-house, with intent to commit a rape (being the point submitted to their consideration) was not a crime which included an assault. Regina v. Watkins, Carrington & Marsh- man, 264; 2 Moody C. C. 217. In England, since the 7 Geo. IV. ch. 64, if a burglary be committed within 500 yards of the boundary of a county, the offenders may be tried in the adjoin- ing county. The 12th section of that statute (which repealed the 2 & 3 Ed. VI. ch. 24, § 2, whereby it was required that trial for murder should be in the county where the death happened) purporting to be for the more effectual prosecution of offences committed near the boundaries of counties, or partly in one county and partly in another, enacts, " that where any felony or misdemeanor shall be committed on the boundary or boundaries of two or more counties, or within the distance of 500 yards of any such boundary or boundaries, or shall be begun in one county and completed in another, every such felony or misdemeanor may be dealt with, inquired of, tried, determined, and punished in any of the said counties, in the same manner as if it had been actually and wholly committed therein." An indictment for burglary, which had been found by the grand jury REX V. FUENIVAL. JONES V. THE STATE, 139 for the county of Hereford, at the Spring Assizes 1829, alleged the burglary to have been committed "at the parish of English Brickner, in the county of Gloucester, within 500 yards of the boundary of the county of Hereford." Upon the arraignment of the prisoners at Hereford, it was objected that the indictment was bad, on the ground that the 7 Geo. IV. ch. 64, § 12, only applied to lar- ceny and other transitory felonies, and not to felonies which were local in their nature ; but the learned judge who tried the case (Parke J.) held that the indict- ment was good, the effect of the 7 Geo. IV. ch. 64, § 12, was to give adjoining counties concurrent jurisdiction over 1000 yards ; that the words " dealt with," applied to justices of the peace, who had consequently jurisdiction over 500 yards in the adjoining county to that in which they were qualified to act ; that the words "inquired of" applied to the grand jury ; "tried" to the petit jury, and " determined and punished" to the courts of sessions and assizes. Bex v. Ruck, 2 Russell on Crimes, 49, 4th ed. from MSS. of Mr. Greaves. But see Regina v. Mtchell, 2 Queen's Bench, 636. V. We have now arrived at the fifth qualification, given by Hale as essen- tial to support an indictment for burglary. " It must be alleged that the prisoner committed a felony in the same house, or that he broke and entered the house to the intent to commit a felony." 1 Hale P. C. 650. Here there are two allega- tions, either of which is sufficient to support an indictment for burglary, for we may either say that the prisoner burglariously broke and entered with the intent to commit felony, or if the evidence can support the charge of felony actually committed, we may lay that the prisoner actually committed the felony without laying the intent, for the intent may be inferred from the facts of the case. " The commission of felony," Lord Hale observes, " is sufficient evidence of the intention." 1 Hale P. C, 660. Rex v. Locost, Kelyng, 30. Common- wealth V. Hope, 22 Pickering, 1, 5. First. With regard to the first allegation above mentioned by Hale, where the indictment lays the actual commission of felony, without laying the intent, the actual commission of felony must be proved. One was indicted for burglary and steal- ing goods, and it appeared that there were no goods stolen, but a burglary, with intent to steal, and not being so laid as it ought to have been. Lord C. J. Holt directed the prisoner to be acquitted. O. B. Oct. 1700. 2 East P. C. 514. See also the judgment of BuUer J. in Vandercomb and Abbott's Case, 2 East P. C. 319, 620, 621. So also if an indictment for burglary charge an actual rape, evidence of an assault, with intent to ravish, will not support it. Where an indictment for burglary charges an actual stealing of goods, the owner of such goods must be correctly named, Jones and Bever's Case, Kelyng, 62, although this case has been overruled upon another point. "Where the indictment was for breaking and entering, &c. the house of J. Davis, with in- tent to steal the goods of J. Wakelin, and there was no such person who had goods in the house ; but J. Wakelin was put by mistake for J. Davis, the prisoner was entitled to an acquittal, and it was ruled that the words ' J. Wake- lin' could not be rejected as surplusage, for the words were sensible and material, it being material to lay truly the property in the goods, and without such words the description of the offence would be incomplete.'' Jenk's Case, 2 East P. C. 614 ; 2 Leach C. C. 4th ed. 774. 3 Greenl. Ev. § 17. 140 LEADING CRIMINAL CASES. But it appears that if the name of the goods has once been correctly stated in the indictment, an error in a subsequent part will not vitiate it. In Kegina v. Eudge, Gloucester Spring Assizes 1841, Coleridge J. seemed clearly of opinion that an indictment for murder, which alleged an assault on Martha Sheddon, and that the prisoner, the said Margaret Sheddon, did strike, &c. was not therefore bad. And see Regina v. Crespin, 11 Queen's Bench, 913. 2 Russell on Crimes, 44, 4th ed. note by Mr. Greaves. And in Rex v. Exminster, 6 Adolphus & Ellis, 598, where an assignment of Elizabeth Mathews, as an apprentice to Rev. Thomas Melhuish, mentioned her subsequently as Elizabeth Melhuish, this error in the surname was held by Lord Denman and Littledale J., the rest of the court concurring, not to vitiate the assignment. A bailee may have such property in goods, as to be considered the owner. of them, if an indictment for burglary with intent to steal the goods, or an indict- ment alleging the actual stealing of them, lay the ownership in him. The State V. Ayer, 3 Foster, 301. The prisoner was indicted at the Central Criminal Court, November 1830, before Mr. J. Bosanquet for breaking and entering the dwelling-house of Louis Ryezor, and stealing a watch, the property of David Miers. It was proved by Mr. Miers that the house was taken by his brother-in- law Mr. Ryezor, and that the witness, who lived on his own property, carried on his business of a silversmith there, for the benefit of Mr. Ryezor and his family, but had himself no share in the profits, and no salary. He stated that he had power to dispose of any part of the stock, which was worth near 3,000Z., and that he might, if he pleased, take money from the till as he wanted it, but he should inform his brother-in-law that he had done so. He also stated, that he sometimes bought goods for the shop, but that sometimes his brother-in-law did so ; with respect to the breaking, he stated that a pane of glass in the shop win- dow had been cut for as much as a month before, but that there was no opening whatsoever, as every portion of the glass remained exactly in its place, and that at the time of the theft, he both saw and heard the prisoner put his hand through the glass and take the watch. Horry, for the prisoner, submitted, first, that as Mr. Miers exercised so much dominion over the stock in the shop, he ought to have been described as a partner with Ryezor ; and, secondly, that as the glass of the window had been cut before, there was no breaking. Bosanquet J. said : " Upon this evidence Mr. Miers was a bailee of the stock, and, therefore, in a case of this kind, the property may be well laid in him ; and with respect to the breaking, that is quite sufficient to support the present indictment. Verdict, guilty." Regina v. Bird, 9 Oarrington & Payne, 44. An indictment under the statute 7 & 8 Geo. IV. ch. 29, § 11, for breaking out of a dwelling-house, having committed felony therein, must, if the felony be in having stolen goods, allege the ownership of them exactly, as in an indictment for burglary at common law, and such allegation must be proved as laid. So also, an indictment under the 1 Vict. ch. 86, § 2, for burglary with violence, must state the person against whom violence has been proved, and the proof must correspond with such allegation. " The prisoners were indicted before Alderson B. at the Monmouth Spring Assizes 1838, for burglary with violence, under the 7 Wm. IV. & 1 Vict. ch. 86, § 2. The indictments charged them with having committed a burglary in the dweUing-house of Sarah Williams, and struck David James. The burglary was proved ; but it appeared that the name of the EEX V. PURNIVAL. JONES V. THE STATE, 141 person struck was Jones, and not James. Alderson B., having conferred with Gumey B., said: "We neither of us entertain any doubt on this point. The indictment must allege both the burglary and the striking, and the proof must correspond with the Indictment. Verdict, guilty of simple burglary." Eegina V. Parfitt, 8 Carrington & Payne, 288. In an indictment for burglary containing a charge of stabbing, cutting, or wounding, under the statute 7 Wm. IV. ife 1 Vict. ch. 86, § 2, it is not necessary to state the instrument or means by which the injury has been inflicted ; and such statement, if made, does not bind the prosecutor to prove the violence done by such means. Rex v. Briggs, 1 Moody C. C. 318. In this case, the first count of the indictment charged the prisoners, that they, on the 9th of January &c. at the parish of Hatfield &c. feloniously &c. with a certain stick and with their feet, did strike, kick and wound William Lyall upon his head, with intent to maim him, against the statute, &c. The second count stated the intent to be to disfigure, the third to disable, the fourth to do some grievous bodily harm. The jury found the prisoners guilty of wounding the prosecutor with intent to do some grievous bodily harm ; but they stated that they could not tell whether the wound was caused by a blow from a stick or a kick with a shoe. Upon an objection being taken by the counsel for the prisoners, that although a wound given by a stick might be within the statute 9 Geo. IV. ch. 34, § 12, a wound given by a foot with a shoe on it was not ; and that, if it was, the mode of wounding was not properly described in the indictment, which stated it to have been done with the feet only, Mr. J. Littledale thought it right to reserve the point for the consideration of the Judges. Afterwards, in Trinity term 1831, the case having been argued before all the Judges (except Patteson J.) by Cot- tingham for the prisoners, their lordships unanimously held, that the means by which the wound was inflicted need not have been stated ; that it was mere sur- plusage to state them, and that the statement did not confine the Crown to the means stated, but might be rejected as surplusage ; and that, whether the wound was from a blow with a stick or a kick from a shoe, the indictment was equally supported, and they therefore held the conviction right. Rex v. Briggs, 1 Moody C. C. at p. 322. Secondly. "An indictment for burglary may allege an intent to commit felony, without alleging an actual felony committed. But in this case care must be taken that the actual felony done correspond with the felony laid, as intended to^be done, otherwise the indictment will be bad." 1 Hale P. C. 561. 2 East P. C. 514. But if, in committing the felony laid in the indictment as intended to be committed, a person commit another felony, which results, from or is neces- sarily connected with the felony intended, this will not vitiate the indictment. For, as East observes (2 East P. C. 614), " it is a general rule, that a man who commits one sort of felony, in attempting to commit another, cannot excuse him- self upon the ground that he did not intend the commission of that particular offence. Yet this, it seems," he adds, " must be confined to cases where the offence intended is itself a felony ; " according to the resolution in Dobbs's Case, 2 East P. C. 613, who was indicted for burglary in breaking and entering a stable, with intent to kill and destroy a horse. " His object being not to kill, but to prevent the horse from running. Lord C. B. Parker held, that as his 142 LEADING CEIMINAL CASES, intention was not felonious, but a trespass, the death of the horse, resulting from his act, did not make his offence a burglary." On an indictment for burglary, in the house of D. Williams, with intent to steal goods and chattels therein, it appeared that the prisoner had, in 1843, executed a mortgage in fee of freehold land to D. Williams for 6001., and in 1848 he had executed another mortgage for 2001., by way of further charge on the same land, to D. Williams ; both deeds contained the usual provisos of redemption, and covenants for payment of principal and interest on the sums advanced. The jury found that the prisoner committed the offence with intent to steal the mortgage deeds ; it was objected that the intent was not properly alleged, as, though the mortgage deeds might be the subject of statutable larceny as "valuable securities," they were not " goods and chattels ; " and, upon a case reserved, the Judges assumed, from the finding of the jury, that the prisoner broke ioto the house with intent to steal the mortgage deeds in their uncancelled state ; that finding made it unnecessary to consider whether the securities savored of the realty, or were evidence of the title to real estate, so as not to be the subject of larceny, because being subsisting securities for the payment of money, they were clearly choses in action, and, as such, were not properly described in the "indictment as goods and chattels. Eegina v. Powell, 2 Denison C. C. 403. The same fact, as we have already seen, may be laid with different intents. "In Thompson's Case, the first count laid the fact to be with intent to steal the goods of J. D. ; the second count laid it with intent to kill and murder him. Upon objection made, that there were two distinct capital charges in the same indictment, seven Judges (being all who were present) held the indictment good. They said, it was the same fact and evidence, only laid in different ways." Rex V. Thompson, 2 East P. C. 515. It has been held by two learned Judges, that where an indictment charges a burglarious breaking and entering a dwelling-house, with intent to steal, it need not be particularly stated whose goods they are which the indictment charges the intent to steal. " The prisoner was indicted before Mr. J. Coleridge, at the Hereford Spring Assizes 1844, for burglary. The first count of the indictment charged that the prisoner, &c. the dwelling-house of one Elizabeth Bird feloni- ously and burglariously did break and enter, with intent the goods and chattels in the said dwelling-house then and there being, feloniously and burglariously to steal, take, and carry away, and then and there feloniously did steal five taps and a quantity of wine, beer, cyder, and candles of the said Elizabeth Bird. The second count was exactly similar, but charged a breaking of the dwelling- house of Elizabeth Bird and others, and laid the property stolen to be in Eliza- beth Bird and others. It appeared upon the evidence that the house in question was broken into on the night of the 13th of January 1844, and the goods mentioned in the indictment stolen ; and it appeared that Miss Elizabeth Bird was the sole tenant of the house, but that she and two other ladies lived in it in common, each of the three contributing an equal amount to the establishment, and that the articles which had been stolen had been purchased by Miss Bird, but that, at the end of the year, they would be paid for by the three ladies, when they divided the expenses of the establishment. It was objected by W. H. Cooke, counsel for the prisoners, that neither of the counts of the indictment REX V. PURNIVAL. JONES V. THE STATE. 143 was proved, as the evidence showed that the house of Miss Bird was broken, and the goods of the three ladies were stolen. Coleridge J. (after having con- ferred with Parke B.). We think that, to support the first count of this indict- ment, it is sufficient to prove that the prisoner broke and entered the house of Miss Bird in the night-time, with intent to steal the goods there generally ; and that, by the evidence given in this case, the first count of this indictment is good." Regina v. Clarke, 1 Carrington & Kirwan, 421. The case of Regiua V. Lawes, for a misdemeanor, had been decided on a similar point. The indict- ment charged that the prisoners, " on the 22d day of August 1842, with force and arms, at the parish of Moulsford, &c. the dwelling-house of Richard Par- sons, there situate, unlawfully did break and enter, and then and there unlawfully were in the said dwelling-house of the said Richard Parsons, with intent the goods and chattels, in the said dwelling-house, then and there being, feloniously to steal, take, and carry away, against the peace, &c. The prisoners being con- victed, it was objected by Price, in arrest of judgment, that the indictment was bad, as it did not state whose goods the prisoner intended to steal. Erskine J. (after having conferred with Wightman J.) said : ' My brother Wightman con- curs with me in thinking that the indictment is sufficient.' " Regina v. Lawes, 1 Carrington & Kirwan, 82. ' When the indictment charges an intent to steal, it is not necessary to prove an actual stealing. " If a man," says Hale, " breaks and enters a house, with the intent to commit a felony, though he attains not that intent, but takes or steals nothing, this is burglary." 1 Hale P. C. 662. Dyer, 99. Staundeforde P. C. 30. And Coke, in his definition of burglary, expressly says, "whether his felonious purpose be executed or not." 3 Inst. 68. Josslyn v. The Common- wealth, 6 Metcalf, at p. 239. It is a corollary from this proposition, that the felony intended to be committed need not be technically charged. From the very nature of the case in many in- stances, the crime, in its formal details, could not be given. If the alleged intent were to commit a larceny, but of what particular goods, or the property of what individual, it could not be known unless the larceny was actually committed. The crime consists in the actual breaking and entering a dwelling-house in the night- time, with intent to commit murder, rape, larceny, &c. and nothing more is neces- sary than such intent. On this indictment the prisoner is not charged or punished for the felony actually committed. Commonwealth v. Doherty, 10 Cushing, 62. The decision in Rex v. Purnival, and the recommendation there given, to in- clude in an indictment for burglary both an intent to commit felony and the actual commission of the felony, has been considered to settle the practice in drawing such indictments. See Commonwealth v. Hope, 22 Pickering, 1 ; Com- monwealth V. Tuck, 20 Pickering, 356 ; Josslyn v. The Commonwealth, 6 Metcalf, 236 ; Devoe v. The Commonwealth, 3 Metcalf, . 316 ; Larneji v. The Commonwealth, 12 Metcalf, 240; Crowley v. The Commonwealth, 11 Metcalf, 675; Kite v. The Commonwealth, 11 Metcalf, 681; The State v. Ayer, 3 Foster, 301 ; The State v. Moore, 12 New Hampshire, 42 ; The State v. Squires, 11 New Hampshire, 37 ; Commonwealth v. Brown, 3 Rawle, 207. The passages in Lord Hale, which the Judges referred to, and which influenced their judgment, are extremely interesting, and are fully entitled to be transcribed entire. He says : " If the indictment be qu6d domum mansionalem J. S. felonic^ 144 LEADING CRIMINAL CASES. etburglarit^rfregit et intravit, et adtuncet ibidfim certain goods of J. S. felonicA et burglarit^r furatus fuit cepit et asportavit, the indictment compriseth two offences, burglary and felony, and therefore he maybe acquitted of the burglary, if the case be so upon the evidence, and found guilty only of the felony, and then he shall have his clergy ; or he may be acquitted of the felony, but then, quaere, whether he can be found guilty of the burglary, because, though where the indictment compriseth burglary and felony, the indictment is good, though it be not supposed in the indictment that it was e&. inteutione ad bona furandum, for the act of theft being charged at the same time, it is a sufficient evidence of his intention ; but when he is acquitted of the felony, then there being nothing expressly charged in the indictment that burglaritSr fregit, etc. ea intentione ad bona, etc. felonicfe furandum, it stands single, as if the indictment had been of single burglary, in which case, the clause of ea intentione ad furandum, etc. had been necessary to complete a single burglary. It seems therefore neces- sary in such cases, not only to charge him that in nocte et burglariter et felonic^ domum, etc. fregit et intravit et bona, etc. cepit, but also further to say, eS, intentione ad bona et catalla, etc. in eadem domo existentia felouic^ et burg- lariter furandum, and to add also the particular felony, et adtunc et ibidem unum scyphum argenteum, etc. ; and then and there one silver cup, and then, though he be acquitted of the felony, the rest of the indictment stands good against him as a single burglary, and he may be convicted of it, though acquitted of the felony. And, I think, that as the offences of burglary and felony may be found in the same indictment, so three offences may be found in the same indict- ment, and if he be acquitted for one, he may be convicted of the other two ; and it may be of use to exclude a malefactor from his clergy. Where the offence is great, as namely for burglary and for felony, upon the statute 6 & 6 Edw. VI. ch. 9, for there may be an offence against that statute which will exclude from clergy, and yet not amount to burglary ; the form of the indictment may run thus (Anglic^) : That A. on the first day of February in the year of our Lord &c. in the night of the same day (he omits to mention the precise hour), with force and arms, the dwelling-house of B., &c. feloniously and burglariously did break and enter, with intent the goods and chattels of the said B., in the said dwelling-house, then being, feloniously and burglariously to steal, take, and carry away, and then and there, with force and arms, one silver cup belonging to the said B. in the said dwelling-house, then being, feloniously .and burglari- ously did steal, take, and carry away, the said B. himself, and his wife and children and servants in the said house then being, contrary to the peace, &c. " And note, that such an indictment need not conclude contrcl formam statuti ; it is sufficient that it brings the case so within the' statute as to exclude clergy, aud so upon the statute 23 Hen. VIH. ch. 1. By that statute, ' All persons found guilty of robbing any church or chapel, or other holy place, or of robbing any person in his dwelling-house, the owner of the same house, his wife, children, or servants, then being within, and put in fear and dread by the same, or for robbing any person in or near the highway, and those that are found guilty of abetting, procuring, helping, or counselling thereof, are exempt from the benefit of clergy, except such as are in the order of subdeacon.' 1 Hale P. C. 517. "And upon this indictment, if it falls out upon the evidence that he is guilty of the burglary, but not guilty of the stealing, he may be convicted of the REX V, FUENIVAL. JONES V. THE STATE. 145 burglary, and so ousted of his clergy, though he be found not guilty of the felony. Again, though he be found not guilty of the burglary, because it may be the breach of the house was in the daytime, the dweller, his wife, or servants, being in the house, yet he may be found guilty of the felony within the qualifica- tions contained in the indictment, pursuant to the statute of 5 & 6 Edw. VI., and so ousted of his clergy ; for that is not confined either to the day or night. Again, if upon the evidence it appears not to be burglary, because done in the daytime, nor yet felony so qualified as to exclude from clergy, because either there was no act of breaking, or, if there were, yet the dweller, his wife, or servants, were not in the house, he may be convicted of common larceny, and so have benefit of clergy ; and so much of burglary joined with larceny." 1 Hale P. C. 569, 560, 561. Upon this passage of Hale we may observe, first, that if the indictment charge only what he terms a single or simple burglary (for he uses both expressions), that is, a burglarious breaking and entering in the night-time, with intent to commit a felony, and any one of the requisite proofs to establish the burglary fails, as if the breach or entry, or the time or the place, or the ownership, of the dwelling-house be not made out by the evidence, but an actual felony be clearly proved, still the prisoner cannot be convicted of that felony, for it was not charged in the indictment. Any one of the ingredients of the burglary having failed, the whole indictment falls to the ground, for it only charged a single act of the prisoner, namely, a burglarious breaking and entering into the dwelling- house of A. B., with intent to commit felony, without going on to charge the actual felony committed. This would be the case, not only in a larceny, but in murder, rape, or any other felony. And the converse of the proposition is equally true ; for if an indictment for burglary charge an actual commission of felony, without laying the intent, and there is no proof of the actual commission of the felony, the prisoner must be acquitted of the burglary as well as of the felony, for the indictment contains but one charge, namely, a burglarious breaking and entry into the dwelling-house, and a commission of felony therein, and one part or ingredient of the ofifence charged failing, the whole indictment falls to the ground. And the reasoning of BuUer J. in Vandercomb and Ab- bott's Case, 2 East P. C. 520, is to the same effect. "The crime of burglary," he says, " is of two sorts : first, breaking and entering a dwelling-house in the night-time, and stealing goods there ; secondly, breaking and entering a dwell- ing-house in the night-time with intent to commit a felony, though that felony be not committed. The circumstance of breaking and entering the dwelling- house is essential to both, but it does not of itself constitute the crime in either ; for there must be a felony committed or intended, without one of which the crime of burglary does not exist, and these offences are so distinct in their nature, that evidence of one will not support an indictment for the other. For example, if a man be indicted for breaking and entering a house in the night- time, and stealing goods there, evidence that he broke and intended to steal goods, &c. or to commit any other felony, would not support the indictment.'' Upon this passage. East subjoins a quaere, as follows : " Q. Whether the defini- tion of the crime be not solely resolvable into the breaking, &c. with intent to commit felony, of which the actual commission is such a strong presumptive evi- dence, that the law has adopted it, and admits it to be equivalent to a charge of VOL. n. 10 146 LEADING CRIMINAL CASES. the intent in an indictment ; and therefore an indictment charging the breaking, &c. with intent to steal, is said to be supported by proof of actual stealing, though certainly not vice versa." 2 East P. C. 620. And Mr. Greaves, in a note upon Mr. J. Buller's twofold division of the of- fence of burglary, remarks, "that the report of his judgment has stated the point too largely, as it seems to go to the extent of saying, that evidence of a breaking and entering, and a felony actually committed, will not support an in- dictment for breaking and entering, and a felony intended to be committed." 2 Russell on Crimes, 63 note. 4th ed. We may observe that the learned judge, having laid down his proposition, namely, " that there must be a felony committed or intended, and that these offences are so distinct in their nature, that evidence of one will not support an indictment for the other," goes on to prove the first of these propositions, and apply it to the case then under consideration, but leaves the second proposition untouched. It is beyond all doubt that evidence of a felony intended will not support an indictment charging a felony committed for the reasons we have above given, but take the converse proposition, and how can the intention to commit felony be better inferred than from a felony actually committed ? — as in the case of Rex v. Locost, Kelyng, 30. Not that a felony committed in a dwelling-houSe, after breach and entry, is an absolutely positive proof, amount- ing to certainty, and excluding all other suppositions of such breach and entry being made to commit that felony. A man might open the door of a tavern in London at night, and •enter for the purpose of getting liquor, and seeing silver lying in the bar might steal it ; here the commission of the larceny would be no actual proof that the entry was with intent to steal, although every other of the ingredients of burglary were fully satisfied. But as the human mind, in general, can only be interpreted by actions, the case above put could be only an exception to the rule, and an indictment charging a felony intended can in any ordinary way be only satisfactorily made out by presumptive proof, namely, by evidence of felony actually committed, and the jury must infer the cause from the conse- quence, instead of the consequence from the cause. On the other band, if the indictment charge a burglarious breach and entry with intent to commit felony, and also charge the actual felony committed, then if proof fails of the burglary, as if there be no breach or no entry, or if it be not by night, or the house laid as the dwelling-house be not considered by law as such, or if the ownership of such dwelling-house be not correctly laid, still the jury may convict of the felony ; or if proof fail of the felony, as, e. g., in cases of stealing, if there be no aspor- tation, or of rape, if an assault only be proved, still the jury may convict of what Hale calls the single burglary. The statute of 5 Edw. VI. ch. 9, above referred to by Hale, was as follows : "If any person be found guilty, according to the laws of the land, of robbing any person or persons in his or their dwelling- houses, or dwelling-places, the owner or dweller, his wife, children, or servants, being within the same house or place, or in any place within the precincts thereof, such offender shall not be admitted to clergy, whether the owner or dweller, his wife or children, then or there being, shall be waking or sleeping. And also he that robs any person in any booth or tent in any fair or market, his wife, chil- dren, or servants, then being within the booth or tent, shall be excluded from clergy." 1 Hale P. C. 520. The word robbing here seems to mean stealing BEX V. PUENIVAL. JONES V. THE STATE. 147 from, for the statute says, the punishment .shall be the same, even if the inmates are asleep. This statute has been repealed, so far as it relates to robbing in the dwelling- house, some person being therein, by the 7 & 8 Geo. IV. ch. 27 ; and now by § 6 of 7 Wm. rV. & 1 Vict. ch. 86 (England and Ireland), repealing the 7 & 8 Geo. IV. ch. 29 (England), and 9 Geo. IV. ch. 45 (Ireland), it is enacted, that " whosoever shall steal any property in any dwelling-house, and shall by any menace or threat, put any one being therein in bodily fear, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas, for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years." It is further to be observed upon the passages above cited from Hale, that where an indictment for burglary includes the charge of an actual felony com- mitted, which has been subjected to a higher punishment by statute, it need not conclude " contr^ formam statutl." A fortiori, where a statute has reduced the punishment. This rule is, however, subject to the proviso, that the felony charged in the indictment was a felony before, for if otherwise it would be neces- sary to conclude " contrary to the form of the statute." " If an offence," says Hale, " were felony at common law, but a special act of parliament ousts the offender of some benefit (that the common law allowed him) when certain cir- cumstances are in the fact, though the body of such indictment must express those circumstances, according as they are prescribed in the statute, yet the indictment must not conclude ' control formam statuti.' " 2 Hale P. C. 190. " But if a statute only makes an offence, or alters an offence from one crime to another, as making a bare misdemeanor a felony, the indictment for such new- made offence, or new-made felony, must conclude ' contri formam statuti,' or otherwise it is insufficient." 2 Hale P. C. 192. And with this passage from Hale, accords the case of Ann Davis, given in Kelyng, p. 32. "At the jail delivery for Newgate, holden 31st August 16 Car. H., my Lord Bridgeman, myself, and my brother Wylde, recorder of London, being present, Ann Davis was indicted for murdering her male bastard child, and the indictment was not special, as the statute is, for concealing it, &c. But the in- dictment was — quod infantem masculum vivum parturiit, qui quidam infans masculus adtunc et ibidem vivus existens natus per legem hujus regni Anglise spurius fiiit AnglicS, ' a bastard,' — and then goeth on in the ordinary form, that she murdered it, and doth not conclude ' contri formam statuti.' And it was doubted by us, whether the indictment ought not to be special ; and we caused precedents to be searched, and in 2 Car. I. there was a special indict- ment, but after 4, 5, & 6 Car. I. all the indictments were as , this is. And Mr. Lee, Clerk of the Peace for London, said that the form was altered, and made as it is now by the advice of the Judges, at that time ; who agreed that that clause which is now in the indictment should be put in, and to conclude gener- ally, contri pacem, &c. and not to conclude, contrk formam statuti ; for mur- der was an offence at common law, and the statute declareth, that where the child is concealed, it shall be taken to be bom alive ; and if it be dead, it shall be taken that it was murdered, and so the statute doth not make a new offehoe, but maketh a concealment to be undeniable evidence that she murdered it, and 148 LEADING CRIMINAL CASES. so the court was satisfied, and went on upon the indictment." Davis's Case, Kelyng, 32. See also 2 Hawkins P. C. ch. 25, § 116. It has been decided that the alterations made in the law with respect to burg- lary by the statute 7 Wm. IV. & 1 Vict. ch. 86, as to the hours constituting night, and as to the punishment, do not make it necessary for an indictment for burglary to conclude " contra formam statuti," as the alteration with respect to the hours does not alter the offence itself, and the mere diminution of the pun- ishment does not make that conclusion of the indictment necessary. "The prisoners were indicted before Mr. J. Erskine, at the Oxford Spring Assizes 1843, for burglary. The indictment was in the usual form, charging a burglary with intent to steal, and an actual larceny, but did not conclude ' contrA formam statuti.' Lee, for the prisoners, submitted that the judgment ought to be arrested, because the indictment did not conclude contrary to the form of the statute. He cited Archbold Crim. PI. 9th ed. p. 56. Seeker, for the prose- cution, cited Regina v. Blea, 8 Carrington & Payne, 735. Erskine J. I have considered the objection to this indictment, and am of opinion that the indict- ment is sufficient. By it the prisoners are charged with burglary, the indictment being in the old form, charging a breaking and entering a dwelling-house with intent to steal, and stealing certain goods, and the objection is, that it does not conclude ' contra formam statuti.' The objection was put in two ways : first, on the ground that a recent statute had altered the offence ; and secondly that the punishment had been altered. On the first ground it was said, that the statute 7 Wm. TV. & 1 Vict. ch. 86, had altered the offence by substituting the hours nine and six for the old hours, and that, therefore, the ' contra formam statuti ' became necessary. It appears to me that the offence is not altered by the statute. Burglary is the breaking and entering a dwelling-house in the night- time with intent to commit felony. The common law fixed the test of night as being, when a man's features could not be discerned. This was found to be inconvenient, and the legislature, by the statute 7 Wm. TV. & 1 Vict. ch. 86, § 4, has enacted, ' that so far as the same is essential to the offence of burglary, the night shall be considered, and is hereby declared to commence at nine p. m., and to conclude at six A. M. on the next succeeding day.' This does not at all alter the offence ; and therefore on that ground the present indictment need not conclude ' contrk formam statuti.' The other ground for the objection was, that the punishment was altered by the statute, and a passage from Mr. Arch- bold's work on the criminal law was cited, as showing that any alteration of the punishment made the conclusion ' contrcl formam statuti,' essential to the indict- ment ; and if that passage had been a correct transcript of the passage in Lord Hale, it would seem that the conclusion, ' contrA formam statuti,' was required, even when the punishment was reduced ; and if that were so, the indictment for burglary, horse-stealing, larceny, and several other offences preferred within the last few years, have been all bad. However, or» referring to the passage in Lord Hale, it does not appear to me to point to a case like this, as Lord Hale says : ' If an offence be at common law, and also prohibited by statute, with a corporal or other penalty, yet, it seems, the party may be indicted at common law, and then, though it conclude not ' contrJi formam statuti,' it stands as an indictment at common law, and can receive only the penalty that the common law inflicts in that case. Thus, an indictment for a riot is good, though it conclude not ' contrJi EBX V. PURNI7AL. J0NB3 V. THE STATE. 149 formam statuti,' because a riot is an offence at common law, though prohibited also by acts of parliament under severer penalties. This appears to apply to a case where there had been a common-law offence, and a statute has afterwards prohibited that offence, and given a n,ew punishment. The statute 7 Wm. IV. & 1 Vict. ch. 86, merely alters the punishment by reducing it, and the words of the statute are, ' that whosoever shall be convicted of the crime of burglary, shall be liable to be transported,' &c. And not, ' whosoever shall break and enter a dwelling-house in the night-time with intent to steal, shall be trans- ported,' &c. I am, therefore, of opinion, that this statute, not having altered the offence, and not having prohibited the offence, but merely having reduced the punishment, it is not necessary that the indictment shall conclude ' against the form of the statute,' and the present indictment for burglary is therefore good." Regina v. Polly, 1 Carrington & Kirwan, 77. In a note to the above case the reporter adds, that he had been informed by Mr. Keating, that in the case of Regina v. Andrews, for horse-stealing, tried before Alderson B. at the Oxford Summer Assizes 1839, he took a similar objection to the indictment, which, after time taken to consider, was overruled by the learned baron. The case of Regina v. Blea, referred to in Regina v. Polly by the coun- sel for the prosecution, was decided on a similar point. " The prisoner was indicted before Mr. J. Patteson at the Oxford Spring Assizes 1839, for a lar- ceny committed after a previous conviction. The indictment, after alleging the subsequent felony, stated, that the prisoner at a former assize held at Oxford was convicted of felony. Greaves (amicus curiae) mentioned that at the pre- ceding Hereford sessions, an objection had been taken by J. W. Smith to a precisely similar indictment that it had not concluded ' contr^ formam statuti,' which he submitted was essential to enable the court to inflict the heavier pun- ishment under 7 & 8 Geo. IV. ch. 28, § 11, and that the. objection had been overruled by the court, who were however anxious to know if they had done right. Patteson J. I do not think there is any thing in the point. The indict- ment is clearly good." Regina v. Blea, 8 Carrington & Payne, 735. But where the felony charged in an indictment for burglary, as either actually committed, or intended to be committed, is not a felony at common law, but is made so by statute, it is necessary that the indictment should conclude " contri formam statuti." " In the case of Rex v. Pearson, Old Bailey, May 1831, where an indictment charged the prisoner with stealing a bank-note, upon which charge he was found guilty, judgment was afterwards respited by Littledale J. upon its having been ascertained that the counts charging a common larceny of the note did not conclude ' contrary to the form of the statute,' and the case was reserved for the consideration of the fifteen Judges, who held those counts bad on that account." Rex v. Pearson, 5 Carrington & Payne, 121 ; 1 Moody C. C. 313 ; 4 Carrington & Payne, 578. Applying this case to an indictmentTor burglary, to break and enter a dwell- ing-house by night, to steal a bank-note or other security for money, would clearly not have been burglary at common law, for to constitute burglary there must have been a felony either actually committed or intended to be committed ; but to steal a bank-note was no felony at common law ; the statute therefore made the stealing of a bank-note a felony. And according to Hale, where the statute creates a new felony, there the indictment must conclude " contr^ formam 150 LEADING CRIMINAL CASES. statuti." Therefore an indictment for burglary charging an intent to steal a bank-note, or charging the actual stealing of it, must conclude " contra formam statuti." Mr. Archbold however thinks that such conclusion is not necessary as to the burglary. He says: " If bank-notes or other valuable securities be stolen, conclude against the form of the statute, &c. for although this is not necessary as to the burglary, yet if that part of the charge fail, such a conclusion would be deemed to be niecessary, in order to convict for the larceny." Arch- bold Crim. PI. 316. 11th ed. Therefore, qusere. The passages cited at length from Hale have furnished us with the above observations relative . to the care necessary to' be taken in drawing indictments for burglary, both at common law and under the statute. The difficulty of the subject gave rise to the solemn recommendation of the Judges in Furnival's Case, following the advice of Lord Hale, that in indictments for burglary, both the intention to commit felony and the felony actually committed should be charged ; nevertheless, an indictment laying the intent only, or the actual felony only, is still good, if it be made out by the evidence. In other points, indictments for burglary follow the same rules as govern other indictments. Commonwealth v. Geby and Wipe.^ October Term 1854. Indictment — Allegation in the Disjunctive — " Or " Used in the Sense of " To Wit." A complaint or indictment averring an unlawful sale of " spirituous or intoxicating l liquor," is bad for uncertainty. When the word " or " in a statute is used in the sense of " to wit," that is, in explana- tion of what precedes, and making it signify the same tiling, a complaint or indict- ment, which adopts the words of the statute, is well framed. A COMPLAINT, made to a justice of the peace alleged that the defendants, on the 18th of June 1854, at Canton, " without any au- thority or license therefor duly had and obtained according to law, did sell spirituous or intoxicating liquor to one Patrick G. White," &c'. The defendants, being found guilty by the justice, appealed to the Court of Common Pleas, and there pleaded that they would not contend with the Commonwealth, and this plea was received by the court. They then moved in arrest of judgment, " because said complaint does not charge the violation of any statute of this Commonwealth, substantially in accordance with the requirement ' 2 Gray, 501. COMMONWEALTH V. GRET. 151 of law." Mellen C. J. being of opinion that the question of law arising upon this motion was so doubtful as to require the decision of this court, reported the case, with tlie consent of tlie defendants. E. Wilkinson, District Attorney, for the Commonwealth. B. Sanford, for the defendants. Metcalp J. It is a general rule, that an indictment, infor- mation, or complaint must not charge a party disjunctively, so as to leave it uncertain what is relied on as the accusation against him. 2 Hawkins P. C. ch. 25, § 58. 1 Chitty Grim. Law, 231. 1 Starkie Grim. PL 2d ed. 245. Thus an indictment, which averred that S. made a forcible entry into two closes of meadow or pasture, was held to be bad. Spear's Gase, 2 RoUe Ab. 81. So of an information which alleged that N. sold beer or ale without an excise license. The King v. North, 6 Dowling & Ryland, 143. See also Rex V. Morley, 1 Younge & Jervis, 221 ; Ex parte Pain, 5 Barne- wall & Cresswell, 251 ; Rex v. Sadler, 2 Chitty Rep. 519 ; Davy V. Baker, 4 Burrow, 2471. When the word " or " in a statute is used in the sense of " to wit," that is, in explanation of what precedes, and making it sig- nify the same thing, a complaint or indictment, which adopts the words of the statute, is well framed.^ Thus it was held, in Brown v. Commonwealth, 8 Massachusetts 59, that an in- dictment was sufficient which alleged that the defendant had in his custody and' possession ten counterfeit bank-bills or prom- issory notes, payable to the bearer thereof, and purporting to be signed in behalf of the president and directors of the Union Bank, knowing them to be coiinterfeit, and with intent to utter and pass them, and thereby to injure and defraud the said president and directors ; it being manifest from St. 1804, ch. 120, § 2, on which the indictment was framed, that " promissory note " was used merely as explanatory of " bank-bill," and meant the same thing. So in The State v. Gilbert, 13 Vermont, 647, an information was held sufficient which alleged that the defendant feloniously stole, took, and carried away a mare " of a bay or brown color ; " the court saying that the colors named in the information were the same. And if spirituous liquor and intoxicating liquor were the same, and the word " intoxicating " had been used in St. 1852, ch. 822, as a mere explanation of the word " spirituous," the com- plaint in the present case would have been rightly drawn. But the two words are not synonymous. All spirituous liquor is > The State v. Ellis, 4 Missouri, 474. 152 LEADING CRIMINAL CASES. intoxicating ; yet all intoxicating liquor is not spirituous. In com- mon parlance, spirituous liquor means distilled liquor ; and such, we believe, is its meaning in the statute. Fermented liquor, though intoxicating, is not spirituous. A complaint or indictment on the statute should charge the de- fendant, either with selling spirituous liquor, or with selling intoxi- cating liquor, or with selling spirituous liquor and intoxicating liquor. The latter form is usually adopted ; and it is well settled that it is a proper form, and that proof of the defendant's having sold either spirituous liquor or intoxicating liquor, as well as proof of his having sold both, will support the indictment. 1 Bast P. C. 402. Angel v. Commonwealth, 2 Virginia Cas. 231. The State v. Price, 6 Halsted, 203. As the complaint against these defendants leaves it uncertain whether they are charged with having sold spirituous liquor, or intoxicating liquor which is not spirituous, we must hold it, upon the authorities above cited, to be insufficient to sustain a judgment.^ Judgment arrested. Regina v. Waters.^ January 30, 1849. Indictment — Aider ly Verdict. The prisoner was charged in the first count, " that she in and upon a certain infant female child bom of the body of her the said S. W. and of tender age, to wit, of about the age of two days, and not named," feloniously made an assault, &c. and caused to take poison, and so murdered her. In the second count, " that the said, S. W. in and upon the said infant female child so bom of the body of her the said S. W. and not named as aforesaid, &c. feloniously did made an assault, and that she, the said S. W., the said infant female child in and upon a heap of ashes, &c. wilfully, &c. did cast, &c. and did then and there leave the said infant female child, &c. in the open air, &c. exposed to the cold air, &c. of which said exposure and of the chilling thereby caused, the said infant female child then and there died, and so, &c. Hdd, 1. That there is a difference between an indictment which is had for charging an act which as laid is no crime, and an Indictment which is bad for charging a crime defectively. The latter may be aided by verdict, the former cannot. > The State ». Colwell, 3 Rhode Island, 284. » 1 Denison 0. C. 856. 3 Cox C. C. 300. Temple & Mew C. C. 67. 2 Car- rington & Kirwan, 866. EEGINA V. WATERS. 153 2. That the words " said infanffemale child so bom of the body of her the said S. W." did not incorporate by reference the description of the child given in the first count ; namely, that it was of tender age. 3. That the second count was, therefore, defective in not showing that the child was unable to take care of itself. 4. That had the act of the prisoner charged in that count been a non-feasance, the indictment would have been bad after verdict. 5. That as it was a misfeasance, and the death of the child was alleged to have been caused thereby, the defective statement in the indictment must be taken to be sup- plied by the verdict. The prisoner was tried before Baron Rolfe, at the Decem- ber session of the Central Criminal Court 1848, on a charge of murder. The first count of the indictment charged that the prisoner, " in and upon a certain infant female child, born of the body of her, the said Sarah Waters, and of tender age, to wit, of about the age of two days, and not named," feloniously and of her malice aforethought, did make an assault, and it then went on to charge that she caused the child to take poison, and so murdered her. The second count of the indictment was as follows: And the jurors aforesaid, upon their oath aforesaid, do further present that the said Sarah Waters afterwards to wit, on the day aforesaid and in the year aforesaid, with force and arms, at the parish aforesaid in the county aforesaid, and within the jurisdiction of the said court, in and upon the said infant female child, so born of the body of her the said Sarah Waters, and not namedj as aforesaid, felo- nioTxsly, wilfully, and of her malice aforethought, did make an assault. And that the said Sarah Waters, with both her hands the said infant female child, in and upon a certain heap of dust and ashes, there situate and being in the open air, there feloniously, wilfully, and of her malice aforethought, did cast and throw ; and that the said Sarah Waters feloniously, wilfully, and of her malice aforethought, did then and there leave the said infant female child in and upon the said heap of dust and ashes in the open air, there, as aforesaid, exposed to the cold air for a long space of time, to wit, for the space of twelve hours, by means of which said exposure ^ to the cold air, as aforesaid, the said infant female child became mor- tally chilled, benumbed, and frozen in her body, of which said exposure to the cold air, and of the mortal chilling, benumbing, and freezing in her body thereby occasioned, the said infant female 1 Conf. Begina v. Ridley, 2 Campbell, 653, qucere, the soundness of the dictum of Lawrence J. respecting the effect of the word " exposed." 154 LEADING CRIMINAL CASES. child then and there died ; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said Sarah Waters, the said infant female child, in manner and form last aforesaid, feloniously, wil- fully, and of her malice aforethought, did kill and murder, against the peace, &c. The prisoner was also charged, on the coroner's inqu isition, as follows : — That Sarah Waters, late of the parish of St. Mary, Whitechapel, in the county of Middlesex, on the 21st day of November in the year aforesaid, at the parish last aforesaid in the county afore- said, the said female child from her body, by the providence of God, did bring forth alive ; and that the said Sarah Waters, after- wards, to wit, on the 22d day of November in the year aforesaid, at the said parish of St. George, Hanover Square in the said liberty in the county aforesaid, and within the jurisdiction of the said Central Criminal Court, in and upon the said female child so alive, feloniously, wilfully, and of her malice aforethought, did make an assault ; and that the said Sarah Waters, the said female child so being alive, then and there did take and carry to a certain dunghole, in a certain mews there situate, and the said female child, so being alive, then and there feloniously, wilfully, and of her malice aforethought, in the said dunghole did hide, secrete, and conceal, and the said female child, so being alive, and so being hidden, secreted, and concealed, she, the said Sarah Waters, then and there feloniously, wilfully, and of her malice aforethought, did desert and leave exposed to the inclemency of the weather, and the said female child, so being alive, and so being hidden, secreted, and concealed, to nourish, sustain, and support, she, the said Sarah Waters, feloniously, wilfully, and of her malice aforethought, did then and there wholly neglect and refuse. By means bf which said hiding, secreting, concealing, and deserting, and leaving ex- posed to the inclemency of the weather, of the said female child by the said Sarah Waters, and also, by reason of the said neglect and refusal of the said Sarah Waters, the said female child to nourish, sustain, and support, the said female child then and there instantly died. And so the jurors aforesaid, upon their oaths aforesaid, do say, that the said Sarah Waters, her the said female child, in man- ner and form aforesaid, feloniously, wilfully, and of her malice aforethought, did kill and murder against the peace, &c. At the trial the jury found the prisoner guilty of manslaughter, REGINA V. WATERS. 155 on the second count only of the indictment, and also on the. coroner's inquisition. A motion was made, in arrest of judgment, on the ground that the second count of the indictment stated no crime, that 'the age being laid under a videlicet, it was consistent with all which is stated in the count, that the child might be of the age of twenty years, and capable of taking care of herself, and so able to have prevented the ill effects of the exposure, which is the sole cause of death alleged. The learned baron thought the objection good, and did not think it safe to rely on the coroner's inquisition, because the name of the -child is not there stated, nor any reason given for its omis- sion, and even in the indictment it seemed to him doubtful whether the statement that the child had not been named was sufficient to dispense with the statement of its name, for there was nothing to show that it might not have required a name by repu- tation. As to the necessity of stating the name, see Regina v. Biss, 2 Moody C. C. 93, and Regina v. Stroud, 2 Moody CO. 270. The learned baron requested the opinion of the Judges whether either the second count of the indictment or the coroner's inquisi- tion was sufficient to warrant a judgment for manslaughter. On the 20th January 1849, the case was argued before Lord Den- man C. J., Parke B., Alderson B., Coltman J. and Coleridge J. Clerk, for the Crown. (The arguments are fully given in the judgment. Regina v. Willis, 1 Denison C. C. 80, was cited. It was also said, that in the indictment the prisoner was averred to be a single woman, though this averment did not appear in the case as stated to the court.) Afterwards on 30th January 1849, Pollock C. B., Parke B., Al- derson B., Rolfe B. and Platt B. being present, Parke B. after stating the facts of the case, read the following judgment. If the second count of the indictment had charged the prisoner with causing the death of the deceased by a mere non-feasance — the neglect of her maternal duty towards her child, it would have been bad ; because the indictment ought to have stated the child to be of such an age, or in such a situation, as to be unable to take care of itself. Supposing an averment that the child was of ten- der years would have imported such an inability, there is no aver- ment in this count that the child was of tender years, for the 156 LEADING CRIMINAL CASES. . reference in the commencement of it to the first count does not import that description. It contains no more than an averment that the child was a female, born of the prisoner's body, and not named. See opinion of Mr. Justice Patteson in Regina v. Martin, 6 Carrington & Payne, 217.^ But this count charges the prisoner with a misfeasance, a wrongful act, in assaulting the child, and casting and throwing her on a dust heap, and if the death of the child is traced to this act, the offence of manslaughter is complete. Is it then traced to this wrongful act ? It is alleged that the prisoner, having cast and thrown the deceased on the heap of dust, left her there, that is, permitted her to continue there, exposed to the cold air, by means of which exposure she was benumbed and died. The expo- sure therefore is charged against the prisoner, and the death is attrib- uted to the exposure. It is not expressly averred in this case, that the child was of such tender years, or so feeble that she could not walk away and take care of herself — but that is implied, for if she had been sufficiently old, or strong to do so, the death would not have arisen from the exposure by the prisoner, but from the act of the child in not walking away and taking care of herself. Thus, it is established, that if, in an action on the case, a neglect is charged against the defendant, by reason whereof the plaintiff had sustained damage, the question, whether the plaintiff could have avoided that damage by the exercise of ordinary care, is al- ways open on not guilty, and after verdict, it is presumed that the jury have found the fact of the neglect, and also found that the consequential damage was not caused by the want of ordinary care in the plaintiff. Bridge v. Grand Junction Railway Company, 3 Meeson & Welsby, 248. Goldthorpe v. Hardman, 13 Meeson & Welsby, 37T; 14 L. J. (n. s.) Bxch. 61. In this case the jury could not have found the prisoner guilty, without actually negativing the power of the child to take care of herself, and so to escape the consequences of the unlawful act of the prisoner ; and consequently after verdict that fact must be implied. I think therefore that the count is good in this re- spect. ' There the first count described the child as E. E., an infant above the age of ten and under the age of twelve years ; the second count merely described her as " the said B. R." Patteson J. held that the second count ought to have contained an express averment that the said E. R. was " then and there above the age of ten years and under the age of twelve years." See Rex v. Cheeve, 4 Barnewall & Cresswell, 902 ; 7 Bowling & Ryland, 461, that the word " said" does not incorporate a previous description. BEGINA V. WAVERTON. 157 A doubt occurred to the learned judge, whether the description of the child as being " not named " was sufficient. " Not bap- tized" would not have been enough, but "not named," which means that she had acquired no name either by baptism or usage, appears to be quite sufficient. Regina v. Waverton.i November 21, 1851. Indictment — Aider hy Verdict — Reference from one Qount to another. After verdict, defective averments in the second count of an indictment may be cured by reference to sufficient averments in the first count. Any qualities or adjuncts averred to belong to any subject in one count of an indict- ment, if they are separable from it, shall not be supposed to be alleged as belong- ing to it in a subsequent count which merely introduced it by reference as the same subject "before mentioned." This was an indictment for a nuisance in not repairing a high- way, found at the Cumberland Summer Assizes 1850. It was removed by certiorari into the Queen's Bench, and was tried at the Summer Assizes for the county of Cumberland, held at Carlisle, before Mr. Justice Williams, on the 6th of August 1851. The indictment contained three counts : — 1st Count. The jurors for our lady the Queen upon their oath present, that before the day of the taking of this inquisition, to wit, on the first day of January in the thirteenth year of the reign of her present Majesty, and long before there was, and from thence hitherto hath been and siill is, a certain common Queen's highway in the said county used for all the subjects of our said lady the Queen to go, return, pass, repass, ride, and labor on foot and on horseback, and with cattle, carts, and carriages, at their will and pleasure, and that a certain part of the said last-mentioned common Queen's highway, situate, lying, and being in the town- ship or district of Waverton, otherwise called Waverton High and ' Court of Queen's Bench. 17 Queen's Bench, 662. 2 Denison C. C. 339. 5 Cox C. C. 400. 158 LEADING CRIMINAL CASES. Low, in the parish of Wigton, in the county aforesaid, called the Yevens Highway, leading from and out of the highway from the village of Waverton towards the town of Mary-port in the county aforesaid, at or near a place called Parkside, on the last- mentioned highway, and extending from thence towards and unto the highway leading from Lesson Hall towards the town of Ireby in the county aforesaid, at or near Waterside in the township or district of Waverton aforesaid, and containing in length 1350 yards or thereabouts, and in breadth four yards or thereabouts, on the day and year aforesaid, and from thence continually hitherto until the day of the taking of this inquisition at the parish and in the township or district last aforesaid, in the county aforesaid, was and is yet very ruinous, miry, deep, broken, and in great decay for want of due reparation and amendment of the same, so that the liege subjects of our said lady the Queen, during the time last aforesaid, could not go, return, pass, repass, ride, and labor with their horses, cattle, carts, and other carriages, in, through, and along the Queen's common highway aforesaid, as they ought and were wont and were accustomed to do, without great danger of their lives and the loss of their goods, to the great damage and common nuisance of all her Majesty's liege subjects, going, return- ing, passing, repassing, riding, laboring, in, through, and along the Queen's common highway aforesaid. And that the inhabitants of the said township or district of Waverton, in the said parish of Wigton, in the county aforesaid, have from time whereof the memory of man is not to the contrary, hitherto been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend, that part of the highway aforesaid, so as aforesaid being ruinous, miry, broken, and in decay, when so often as there should be occasion. And that the said inhabitants of the said township aforesaid have not yet done the same, to the evil example of all others in like case offending, and against the peace, &c. 2d Count. That within the parish of Wigton aforesaid in the county aforesaid, from time whereof the memory of man is not to the contrary, there have been and still are divers townships or districts whereof the township or district of Waverton, otherwise called Waverton High and Low, during all the time last aforesaid hath been and still is one, and that the inhabitants of the said RE6INA V. WAVERTON. 159 township or district of Waverton, in the parish aforesaid, from time whereof the memory of man is not to the contrary, have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and still of right ought to repair and amend, when and so often as it hath been or shall be necessary, such and so many of the common highways situate and being within the township or district of Waverton aforesaid as would otherwise be repairable and amendable by the inhabitants of the said parish at large, and that the said part of the same common highway hereinbefore mentioned to be ruinous, deep, miry, broken, and in decay as aforesaid, was a common highway, which but for the said prescrip- tion or usage would be repairable and amendable by the inhabitants of the said parish of Wigton at large. And that by reason of the premises, the inhabitants of the township or district of Waverton aforesaid, in the parish aforesaid, during all the time last afore- said, ought to have repaired and amended, and still ought to repair and amend, the same part of the said common highway so being ruinous, deep, miry, broken, and in decay as aforesaid, when and so often as it hath been and shall be necessary, and that the said inhabitants of the said township aforesaid have not yet done the same, to the evil example of all others in like case offending, and against the peace, &c. 3d Count. The same as the second ; with the exception that it averred that the inhabitants of the several and respective town- ships, whereof Waverton was one, situate in the parish of Wigton, were liable to repair the said highway. Plea. Not guilty. The jury having found the defendants not guilty on the first count, and guilty on the second and third counts, a rule nisi was obtained in the Queen's Bench on the 4th of November, to arrest the judgment on the second and third counts, on the ground that these counts were bad, in not containing any sufficient allegation that the highway, the subject of the indictment, was situated within the township or district of Waverton, or that the road was out of repair. On the 13th November 1851, this case was argued before Lord Campbell 0. J., Patteson J., Coleridge J. and Wightman J. *S'. Temple, and Pickering, for the Crown. Knowles Q. C, Ather- ton Q. 0. and Unihamk, for the defendants. 160 LEADING CRIMINAL CASES. Temple. After verdict, the second and third counts are sufficient, even if the court should hold that the first count cannot be referred to. The second count says, " that the said part of the same com- mon highway hereinbefore mentioned to be ruinous, deep, miry, broken, and in decay as aforesaid, was a common highway, which, but for the said prescription or usage, would be repairable or amendable by the inhabitants of the said parish of Wigton at large." That, after verdict, is equivalent to a direct averment that the high- way was ruinous and out of repair. Posterne v. Hanson, 2 Wms. Saund. 60 c, and 61 m, note 9. 5th ed. Eex v. Somerton, 7 Barne- wall &^Cresswell, 463. Eex v. Boyall, 2 Burrow, 832. By the Statute of Jeofails, after verdict the second and third counts are sufficient. 1 Wms. Saund. 228. Secondly, the first count contains express averments that the highway was ruinous, and although the jury have found a verdict for the defendants on the first count, yet it may be referred to for the purposes of description. Pattbson J. Is not each count a separate indictment ? Temple. Not for all purposes. Keference may be made in one count to a preceding one. Regina v. Craddock, 2 Denison C. C. 21. If the first coiint may be referred to, then the objections to the second and third counts are cured ; the words being, the said part of the same highway being ruinous and in decay " as aforesaid." But these words may be rejected as surplusage, if the first count cannot be referred to. The defendants have been found guilty of not repairing the highway when necessary ; it is impossi- ble that the jury could have found that verdict without being satisfied that the road needed repair, and without evidence that the road was situate in the township of the defendants. In the case Regina v. Waters, 1 Denison C. C. 356, ante p. 152, a [defec- tive statement of an act of misfeasance was held to be supported by the verdict. Knowles Q. 0. for the defendants. Every count of an indictment should charge the offence with certainty. Lord Mansfield, 1 Term R. 63, said : " It is necessary in every crime that the indictment charge it with certainty and precision, alleging all the requisites which constitute the' offence." LoED Campbell C. J. Lord Mansfield was not there speaking of an indictment after verdict. Knowles. There is no statement in the second or third counts that the road is out of repair. All that is said is, that this is the BEGINA V, WAVERTON. 161 part of the highway which has before been described as ruinous. The words " so being ruinous " are merely equivalent to saying " so stated to be ruinous." Although reference may be made in one count to another for some purposes, a substantial part of a charge cannot be made out by reference to a preceding count. In Regina v. Waters, 1 Denison C. 0. 356, ante p. 152, the words " the said infant female child " were held not to import from a preceding count a description of the child as being of tender age. Coleridge J. But here the words of reference are, " so being ruinous as aforesaid." Knowles. These words only point out the portion of the road to which the prosecutor refers. It is necessary that there should be an averment that the road was out of repair at the time that the indictment was found by the grand jury. Poynt's Case, Cro. Jac. 214. Johnson's Case, Cro. Jac. 609. Rex v. Hazell, 13 East, 139. Regina v. Martin, 9 Oarrington & Payne, 215. Again, there is no allegation that the road is situate in the township of Waverton. Rex v. Upton-upon-Severn, 6 Carrington & Payne, 133. Lord Campbell C. J. It is averred affirmatively to be so in the first count, and that averment is referred to in the second count. Knowles. So large a reference cannot be made from one count to another. Cur. adv. vult. On the 21st November, the judgment of the court was delivered by Lord Campbell C. J. The second and third counts of the indictment in this case are drawn very inartificially ; but we think that after verdict they may be supported.^ The allegation to which our attention was directed, when the motion was first made for arresting the judgment, certainly does not sufSciently charge that the road was out of repair, namely, " that the said part of the same common highway hereinbefore mentioned, to be ruinous, &c. as aforesaid, was a common highway," &c. This is only a description of the high- way, and not an allegation that it was actually out of repair. But there follows an allegation, that the inhabitants of the township " ought to repair and amend the same part of the said common highway, so being ruinous, &c. as aforesaid, when and so often as • " Both the judgment and the marginal note," says Mr. Greaves, " treat this case as if the question being raised after verdict made a difference ; but it is clearly erroneous so to treat it." 1 Russell on Crimes, 614 note. 4th ed. VOL. n. 11 162 LEADING CRIMINAL CASES. it hath been and shall be necessary, and that the said inhabitants of the said township have not yet done the same." Here we have a clear and specific reference to the first count, which contains a formal allegation, that this part of the highway was out of repair. There are many authorities to show that one count of an indict- ment may refer to another, and that under such circumstances the maxim applies. Verba relata inesse videntur. The objection that the second and third counts do not show the part of the highway out of repair to be in the township, admits of a siinilar answer. The first count alleges, " that a certain part of the said highway situate, lying and being in the township of Waverton, &c." (describing it, and stating its length and width), " was, and yet is ruinous," &c. ; and the second and third counts allege, " that the said part of the same common highway herein- before mentioned, to be ruinous," &c. was a highway, which the inhabitants were bound to repair. It has been determined that any qualities or adjuncts averred to belong to any subject in one count of an indictment, if they are separable from it, shall not be supposed to be alleged as belonging to it in a subsequent count, which merely introduces it by reference as tlie same subject "before mentioned." But the local situation of the part of the highway described must necessarily and invariably belong to it, and if once described as being in a particular township, when there is afterwards enough to identify it as being what is so described, a repetition of the allegation, that it is within the town- ship, seems not to be strictly necessary. We must very much regret tl;p negligence in framing indictments, which causes such discussions ; but, we are glad that in this case it has not led to a failure of justice. The rule for arresting the judgment must be discharged. " It is a novel doctrine in criminal cases," writes Mr. Greaves, " that a defec- tive indictment is cured by verdict. Lord Hale says, ' None of the statutes of jeofails extend to indictments, and therefore a defective indictment is not aided by verdict,' 2 Hale P. C. 193 ; and no authority is known for such a doctrine in other cases." 1 Russell on Crimes, 676 note. 4th ed. Commonwealth v. Morse, 2 Massachusetts, at p. 180. Brown v. The Commonwealth, 8 Massachusetts, at p. 66. " It is a well settled rule of law," said Shaw C. J. " that the stat- ute respecting amendments does not extend to indictments, that a defective indictment cannot be aided by a verdict, and that an indictment, bad on demur- rer, must be held insufficient upon a motion in arrest of judgment. The plain rule of the common law, as well as the express provision of the Declaration of Bights, is, that no man shall be held to answer for any crime or offence until the same is fully and plainly, formally and substantially made known to him, REGINA V. GARDNER. 163 that he may have every advantage of previous notice in making hig defence, both upon the matter of fact and law." Commonwealth v. Child, 13 Pickering, at p. 200. " A verdict cannot cure an insufficient indictment,'' said Wilde J. in Commonwealth v. Collins, 2 Cushing, at p. 547. And see Commonwealth v. Bean, 14 Gray, at p. 54. " If the count shows a crime within the terms of the statute," said Wightman J. " though defectively, so as to be bad on demurrer, it is good after verdict. Regina v. Waters goes on that distinction." Eegina v. Bowen, 13 Queen's Bench, at p. 795. And in Regina v. Craddock, 2 Denison C. C. at p. 34, the same learned judge observed that after verdict an indictment must be construed ut res magis valeat quam pereat. In Lutz V. The Commonwealth, 29 Pennsylvania State, 441, which was an indictment for murder, judgment was affirmed on two grounds : " First, that the omissions in the indictment are immaterial ; secondly, that they are of a nature to be supplied and cured by the verdict." Woodworth J. . " The nomi- natives, the conjunctions, and the punctuation might have been better, but the matter is all there, and in sufficient order to import the crime, and nothing else than the crime, of which the prisoner was convicted." See also The State v. Gove, 34 New Hampshire, 510; note of the reporter to Eegina v. Webb, 1 Denison C. C. 348. Regina v. Gardner.^ May 3, 1856. Indictment — Remoteness — False Pretences. The prisoner, by falsely pretending that he was a naval officer, induced the prose- cutrix to enter into a contract with him to lodge and board him at a guinea a week, and under this contract he was lodged and supplied with various articles of food. Held, that a conviction for obtaining the articles of food by false pre- tences could not he sustained, as the obtaining of the food was too remotely the result of the false pretence. The following case was reserved and stated for the considera- tion and decision of the Court of Criminal Appeal by the chairman of the General Quarter Sessions for the county of Kent. At the General Quarter Sessions of the Peace for the county of Kent, holden at Maidstone, on Thursday the 3d day of January 1856, before the Right Honorable Charles, Earl of Romney, James Bspinasse, and Henry Shovell Marsham, Esquires, and others, her Majesty's justices of the peace for the said county, ' Dearsly & Bell C. C. 40 ; 7 Cox C. C. 186. 164 LEADING CRIMINAL CASES. William Gardner was tried upon an indictment charging him as follows : that he did, on the 13th day of November 1855, unlaw- fully, knowingly, and falsely pretend to one Ellen Henrietta Brunsden, that the name of him, the said William Gardner, was William Edgar De Lancy, and that he, the said William Gardner, was paymaster of the ship called the Duke of Wellington, and that the said ship was then lying at Portsmouth, and (the said William Gardner being then dressed in naval officer's uniform) that he, the said William Gardner, was the son of a half-pay ofi&cer, who was living at Chelsea, and that his brother was a lieutenant-colonel in the army, by means of which said false pretences the said William Gardner did then and there obtain of and from the said Ellen Henrietta Brunsden twenty pounds weight of bread, twelve pounds weight of meat, three pounds weight of butter, one pound weight of cheese, three pounds weight of sugar, six quarts of beer, and ten quarts of coffee, and other articles of food, together of the value of thirty' shillings, of the goods and chattels of the said Ellen Henrietta Brunsden, with intent then and there to cheat and defraud, whereas in truth and in fact the name of the said William Gardner was not William Edgar De Lancy, and whereas in truth and in fact the said William Gardner was not the paymaster of the said ship called the Duke of Wel- lington, nor was the said ship then lying at Portsmouth. And whereas in truth and in fact the said William Gardner was not the son of a half-pay officer who was residing at Chelsea, but was the son of one William Gardner, a collector of rates at Sheerness ; and whereas in truth and in fact the said William Gardner had not a brother, who was a lieutenant-colonel in the army ; against the form of the statute, &c. The evidence ou the part of the prosecution, as far as is material for the purpose of this case was, that on the 13th day of November last the defendant, wearing the dress of a naval officer, engaged a lodging of Ellen Henrietta Brunsden (the prosecutrix) at the rate of ten shillings per week ; that on the 17th day of November the defendant expressed himself to prosecutrix as being comfortable, and that he should be likely to remain some time, and stated that he was paymaster of the Duke of Wellington, and his name was De Lancy, that the defendant continued a lodger till the 25th of November, and then expressed a wish to become a boarder, and an arrangement was accordingly entered into that he should become a boarder at a guinea a week, that the prosecutrix supplied REGINA V. GAEDNEE. 165 the defendant with board, consisting of cooked meat, tea, sugar, bread, butter, cheese, and beer, for the six days following, but the defendant did not pay her any thing for the lodging or board. Upon the case for the prosecution being closed, it was submitted by counsel for the prisoner that the contract for board was a mere addition to the first contract for lodging, and that what the defend- ant in fact obtained by the false pretences was an alteration of the first contract, and not goods within the meaning of the statute. The Chairman overruled the objection, and left the case to the jury, who returned a verdict of guilty. Counsel for the prisoner then applied to the court to reserve the case for the opinion of the Court of Criminal Appeal upon the objection taken, alleging that a case similar to this was then before the court for decision. The court thereupon postponed passing sentence on the prisoner, but ordered him to be detained in custody. The opinion of the court is requested, whether the objection taken by the prisoner's counsel is valid in law ? Eomney, Chairman. This case was argued on 26th April 1856, before Jervis C. J., Coleridge J., Cresswell J., Erle J. and Martin B. Horn appeared for the Crown, and Eibton for the prisoner. Bibton, for the prisoner. The conviction was wrong. It is important to observe the dates. When the false statement was made, neither mon'ey, chattel, or valuable security was obtained by it ; and obtaining lodging by a false pretence is not an offence within the statute. On the 26th November, when the contract to board was obtained, no false pretence was made. Coleridge J. Would it not be a question for the jury, whether there was not a continuing false pretence ? Rihton. To obtain a contract by a false pretence is not within the act. It is not obtaining goods. Here, if any thing besides the lodging was obtained by the false pretence it was not food, but simply a new contract to supply board, and that would not be within the statute. The board might have been supplied, not in consequence of the false pretence made when the contract for the lodging was obtained, but in consequence of the prisoner's manners and conduct after that time, and whilst he was a lodger. Coleridge J. Yes ; but your point is, that there was no evidence to go to the jury, even supposing the interval between the false pretence and the contract had only been an hour. 166 LEADING CEIMINAL CASES. Rihton. It is quite clear, that to obtain lodging alone would not be within the statute. Here the contract is for board and lodging united, and it is doubtful whether in any case obtaining board and lodging would be within the statute. It would always be difficult to separate the two so as to show that the articles of food were obtained by means of the false pretence ; but here, at all events, the evidence fails altogether to connect the obtaining of the food with the false pretence. Morn, for the Crown. It is indisputable law that the interven- tion of a contract is no answer to a charge of obtaining goods by false pretences if the contract be part of the fraud. Here the prisoner has obtained goods by means of his false pretences, and the fact that the contract was to pay for the board and lodging together does not make it less an obtaining of goods. In Regina V. Kenrick, 5 Queen's Bench, 49, the money was obtained upon the sale of horses which the prosecutor was induced to buy by false pretences. Cresswell J. That is a remarkable case. Sir P. Thesiger, who appeared for the Crown, abandoned the counts for obtaining the money by false pretences. Jervis C. J. That case is now under consideration in Regina V. Burgon, Dearsly & Bell C. C. 11, and Regina v. Roebuck, Dearsly & Bell C. C. 24. Morn. The decision in Regina v. Kenrick was acted upon and affirmed in Regina v. Abbott, 1 Denison C. C. 273 ; 2 Carrington & Kirwan, 630. Where money was borrowed from the drawer of a bill by the acceptor for the alleged purpose of paying it, and upon a false pretence that he was prepared with the residue, it was held to be within the statute. Rex' v. Crossley, 2 Moody & Robinson, 17, and so it was held where a baker delivered short weight to the poor, and presented tickets as if he had delivered full weight according to his contract, Regina v. Eagleton, Dearsly C. C. 615. The decision in Regina v. Codrington, 1 Carrington & Payne, 661, cannot be con- sidered law unless it can be distinguished from the subsequent cases of Regina v. Kenrick and Regina v. Abbott, on the ground that the false pretence was not sufficiently proved. Jeevis C. J. The difficulty in the case of contracts is, where the party deceived gets not the consideration which he expects, but something like it. Morn. In this case the false pretence is clearly proved ; it was REGINA V. GARDNER. 167 a continuing pretence, and the prosecutrix acting upon it was eventually induced to supply the prisoner with board as well as lodging. It is objected that lodging is not within the statute. Land is not within the statute ; but suppose, by a false pretence, I get an estate and a purse of gold ? The articles of food which the prisoner obtained were chattels within the meaning of the statute ; and the fact that the prisoner gained lodging as well as board cannot make any difference. The question whether the food was obtained by the false pretence was for the jury, and they have found that it was. Hibton ve^lied. Cur. adv. vult. The judgment of the court was delivered on 3d May 1856, by Jervis C. J. In this case, which was argued before us on Saturday last, the court took time to consider, principally with a view of first taking into consideration the cases of Kegina v. Roebuck and Regina v. Burgon, which have just been disposed of. It was an indictment for obtaining goods under false pretences, the circumstances being, that the prisoner represented himself to be the paymaster of the Duke of Wellington, of the name of De Lancy, upon which he made, with the prosecutrix, a contract for board and lodging, at the rate of one guinea a week, and he was lodged and fed as the result of the contract in consequence of the engagement so entered into upon that which was found to be a false pretence ;' and the question which was submitted to us was, whether it was a false pretence within the statute ; or rather whether the conviction was right ? That we have considered, and on consideration we are of opinion that the conviction was not right, because we think that the supply of articles, as it was said upon the contract made by reason of the false pretence was too remotely the result of the false pretence in this particular instance to become the subject of an indictment for obtaining those specified goods by false pretences. We therefore think the conviction should be reversed. Conviction quashed. The doctrine of remoteness, which is one of the most important in the entire range of the criminal law, has received little or no attention from the text- writers, with the single exception of Mr. Bishop, who has discussed it in Chapters XX. and XXX. of his Commentaries on the Criminal Law, and incidentally elsewhere in that book. It is purposed in this note to illustrate this doctrine by a reference to such cases as have fallen within the observation of the writer. 168 LEADING CEIMINAL CASES. In the principal case it was held that the conviction was wrong, because the supply of articles, as it was said upon the contract made by reason of the false pretence, was too remotely the result of the false pretence in this particular instance to become the subject of an indictment for obtaining those specified goods by false pretences. So where an indictment alleged that the prisoner pretended that he was a member of the naval reserve, and entitled to receive thirty shillings for a quarter's payment next day, whereby he obtained board and lodging at fourteen shillings a week, and sixpence in money. The prisoner went to a lodging-house, and represented that he was a member of the naval reserve, and was entitled next day to receive thirty shillings for a quarter's payment; believing this representation, the prosecutor agreed to let him have board and lodgings at his house for a week at fourteen shillings. The prisoner then said he was short of cash, and asked the prosecutor to lend him sixpence, which he did. The prisoner remained some days, and it was then discovered that his statements were false. Hill J. said that this case could not be distinguished from Eegina v. Gardner; for although the prisoner obtained money or goods from the prosecutor, he did it by means of a contract, and he obtained the contract only by means of the false pretences. It is too remote to say that he obtained the money or goods by false pretences. Eegina u. Bryan, 2 Foster & Finlason, 567 (1861) . A conviction for obtaining a chattel by false pretences is good, although the chattel is not in existence at the time the pretence is made, provided the sub- sequent delivery of the chattel is directly connected with the false pretence. Whether or not there is such a direct connection is a question for a jury. Regina V. Martin, Law Rep. 1 C. C. 56 ; 10 Cox C. C. 383. Bovill C. J. : " It is obvious that there are many cases within the mischief of the statute where the thing obtained is not in existence when the false pretence is made. Thus a man, by false pretences, may induce a tailor to make and send him a coat, or a friend to lend him money, which may consist of bank-notes not printed when the false pretence was made on which the loan was granted. So also a man might obtain coals which were not got, and therefore not a chattel in the eye of the law at the time of making the pretence. It is absurd to say that the chattel obtained must be in existence when the pretence is made. The pretence must, indeed, precede the delivery of the thing obtained ; but at what distance of time ? What is the test ? Surely this, that there must be a direct connection between the pretence and the delivery, — that there must be a continuing pre- tence. Whether there is such a connection or not is a question for the jury. In Regina v. Gardner, the prisoner obtained, at first, lodgings only, and, after he had occupied the lodgings more than a week, he obtained board; and it was held that the false pretence was exhausted by the contract for lodging, the obtaining board not having apparently been in contemplation when the false pretence was made. It is true that in Regina v. Bryan, 2 Foster & Finlason, 667, the contract was for board as well as lodging ; but there the indictment was for having obtained sixpence as a loan some time after the contract for board and lodging had been entered into ; and it is clear that the obtaining the loan was as remote from the false pretence under which the contract for board and lodging had been entered into, as the obtaining of the board was from the false pretence made in Regina ». Gardner. In the present case, when the false pretence EEGINA V. GARDNER. 169 was made and the order given, it was never contemplated that the matter should rest there ; and we have no difficulty in holding that there was a continuing pre- tence, and a delivery obtained thereby." Willes J. . "I wiU only add that, since the cases of Regina v. Abbott, 1 Denison C. C. 273, and Regina v. Burgon, Dearsly & Bell C. C. 11, it is impossible to contend seriously that the case is not within the statute because the chattel is obtained under a contract induced by the false pretence." Upon the trial of an indictment for a nuisance to a harbor by erecting and continuing piles and planking in the harbor, and thereby obstructing it and rendering it insecure, it was found by a special verdict, that " by the defendant's works, the harbor is in some extreme cases rendered less secure ; " and it was held that the defendant " could not be made criminally responsible for conse- quences so slight, uncertain, and rare, as were stated by this verdict to result from his works." Rex v. Tindall, 6 Adolphus & Ellis, 143, and 1 Nevile & Perry, 719. In Regina v. Russell, 3 Ellis & Blackburn, 942, on the trial of an indictment for obstructing a navigable piece of water, the jury were asked whether they thought the erection would prove a " material nuisance," in which case they were to find a verdict of guilty ; but were told that if they thought the "nuisance" was so slight, rare, and uncertain, that the defendant ought not to be made criminally liable for it, they should acquit him, and the jury said that they considered the erection, " although a nuisance, was not sufficiently so to render the defendant criminally liable," and thereon an acquittal was entered; it was held by Coleridge and Crompton JJ., and semble by Lord Campbell C. J., that the charge was to be understood as meaning, not that a party may legally commit a small nuisance, but that an obstruction might be so insignificant as not to constitute a nuisance ; and that the jury must be under- stood as finding that the obstruction was so insignificant; and that, therefore, there was not a misdirection warranting a new trial. By an old act, an ancient highway running over the land of Lord Stourton was made a turnpike, and afterwards collieries were worked on each side of the road, and railways made from time to time across the road for the conveyance of the coals from the collieries. In the 1 & 2 Geo. IV. a new act was passed for repairing the same road. One of the former railways was continued and new railways made afterwards across the road for the same purposes as before. By a clause in this act a penalty, recoverable on summary conviction, was imposed on any person who made any railway across the road " without the consent of the trustees or legal authority : " and it was held that the making and continuing of the railways was indictable, and that no inference could be drawn to the contrary from the facts of the case or the words of the last act. To do the work complained of the turnpike road was dug into, but filled up again and restored to its former state, except that the railroad remained, forming a- groove of wood, adapted to the wheels of the railway carriages, and so far sunk into the road that the highest part of it was on a level with the road ; and, upon a special case empowering the court to draw inferences as a jury, after a verdict of guilty, it was held that the court could not pronounce the injury created by this work to be too slight and uncertain to be indictable. Regina «. Charlesworth, 16 Queen's Bench, 1012; 4 New Ses- sions Cases, 703 ; 5 Cox C. C. 174. See Regina v. Train, 2 Best & Smith, 640. 170 LEADING CRIMINAL CASES. Where an inquisition alleged that the defendants were trustees under an act of Parliament, and that it was their duty to contract for the repair of a road, and also to repair the road, and that they did feloniously neglect to contract for the reparation of the said road, and did feloniously neglect to repair the same, and that W. B. being riding in a barrow along the said road, the defendants by their neglect to contract for the reparation of the said road, and by their neglect to repair the same, did cause one wheel of the said barrow to fall into a large hole in the said road, and the said W. B. to be thereby thrown with great violence from the said barrow upon the ground, whereby he was killed ; it was held that the inquisition was bad. Lord Campbell C. J. : " Not only must the neglect, to make a party guilty of it liable to the charge of felony, be personal, but the death must be the immediate result of that personal neglect." Here the death was not the direct consequence of the neglect charged. Kegina v. Pocock, 17 Queen's Bench, 34, 39. Ante Vol. I. p. 65. In eases of neglect of children of tender years it must be both alleged and proved that the health was injured. In Regina v. Phillpot, Dearsly C. C. 179, the indictment alleged that the prisoner was the mother, and had the care of an infant female child unable to support itself, and that it was the duty of the prisoner to support the child, but that the prisoner unlawfully neglected to support it, and unlawfully abandoned it without necessary food for a long space of time, whereby the .child was greatly injured and weakened. The prisoner was the wife of a seaman, and received a portion of his pay, and was able to work and get her living if she chose ; she left the child without food from Monday evening till Thursday morning, and but for the attention of a poor neighbor, the child must have suffered most severely, and might probably have died for want of food, and though it did suffer in some degree from want of food, it was not to any serious extent ; and it was held that the conduct of the prisoner in absenting herself, irrespective of any actual injury to the child, was not a misdemeanor at common law, and therefore it was necessary to prove the averment that the child was greatly injured and weakened ; and that the evidence that the child had suffered "to some but not to any serious extent" was not suflScient ; as it did not show any injury to the health. Jervis C. J. : " We may adopt the language of the Judges in Bex v. Friend, Russell & Ryan C. C. 20. That in order to constitute an offence indictable as a misdemeanor, it is necessary to state a breach of duty or contract in refusing or neglecting to provide for an infant of tender years, unable to provide for itself, and that the health of the infant has been injured by the neglect." See Regina v. Cooper, 1 Denison C. C. 459 ; Regina v. Hogan, 2 Denison C. C. 277. To the doctrine of remoteness may be referred the opinion of Bramwell B. in Regina v. Moah, Dearsly & Bell C. C. 650. In this case, the false making of a letter of recommendation, with intent fraudulently to obtain a situation as a police constable, was held, Bramwell B. doubting, to be a forgery at common law. Bramwell B. : "The letters are of no validity in themselves, and I do not know but that the office might have been obtained without them, although they may have had an operation on the mind of him to whom they were pre- sented. It seemed to me at the trial no more than if I were to produce a letter purporting to be from the Duke of Wellington, inviting me to dine, and say, See EEGINA V. GABDNER. 171 what a respectable person I am." In Regina v. Hodgson, Dearsly & Bell C. C. 3, which was a case of forging a diploma of the College of Surgeons, the con- viction was quashed on the ground that the prisoner had no intent, in forging or in uttering, to commit any particular fraud, nor was there in fact any person defrauded. Jervis C. J. : " The intent must not be a roving intent, but a specific intent." Acts remotely leading towards the commission of a crime are not to be con- sidered as attempts to commit it. " The mere intention to commit a misdemeanor is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanor are indictable. Acts remotely leading towards the commission of the oflfence are not to be considered as attempts to commit it, but acts immediately connected with it are." Judgment in Regina v. Eagleton, Dearsly C. C. at p. 538. But as Wightman J. observed at p. 551: "Every case must be taken with its own peculiar circumstances ; it is impossible to lay down an exact rule." In the course of the argument, Maule J. said at p. 525 :- "The doubt may arise — what is an attempt? Must it not be a proximate attempt ? Does a man, intending to murder, attempt to do so if he buys a dagger and poison, but uses neither the one nor the other? if a man intends to commit an offence at a distant place, getting into a railway train, or putting on his shoes, or shaving himself in the morning, would not be an attempt to do so." The case of Regina v. Roberts, Dearsly C. C. 539, well illustrates this principle. The prisoner, with the intent to coin counterfeit half-dollars of Peru, caused to be made and procured at Birmingham dies necessary for the purpose of making such counterfeit coin, but which would not alone produce it; but the prisoner intended to procure the rest of the necessary apparatus for the purpose and with the intention of using the entire apparatus, when procured, in making the counterfeit coin. The jury found that the prisoner intended to make only a few of the counterfeit coins in England by way of trying whether the apparatus would answer before sending it out to Peru to be there used in making counter- feit coin. And upon a case reserved, it was held that the conviction was right. Jervis C. J. : " This is not an indictment for an attempt to commit a statutable offence, as was the case in Regina v. Williams, 1 Denison C. C. 39, where the charge was an attempt to administer poison. Here there is no direct attempt to coin ; but the indictment is founded on a criminal intent, coupled with an act im- mediately connected with the offence. It is difficult, and perhaps impossible, to lay down a clear and definite rule, to define what is, and what is not such an act done, in furtherance of a criminal intent, as will constitute an offence ; at all events I shall not attempt to do so. Many acts, coupled with the intent would not be sufficient. For instance, if a man intends to commit a murder, and is seen to walk towards the place of the contemplated scene, that would not be enough ; but although it is sometimes difficult to say whether a case comes within or ranges without the line, it is not difficult to say that the act done in this case is one which falls within it. Nobody can doubt that the prisoner was in posses- sion of machinery necessarily connected with the offence, for the express purpose of committing it, and which was obtained and could be used for no other purpose." Parke B. : "I quite agree that if the prisoner had gone to Birmingham merely to procure dies, that would be too remote. I quite agree with the law laid down 172 LEADING CEIMINAL CASES. in Regina v. Eagleton, that an attempt at committing a misdemeanor is not an indictable attempt unless it is an act directly approximating to the commission of an offence, and I think this act is a sufficient approximation. I do not sfie for what lawful purpose the dies of a foreign coin can be used in England, or for what purpose they could have been procured except to use them for coining. The acts done are clearly sufficiently leading to the offence to be indictable." The court seem to have been clear that making a few specimens to ascertain whether they would answer the purpose would have been a felony within the statute ; and that even making a few specimens to put in a cabinet would be so also. In Regina v. Taylor, 1 Foster & Finlason, 511, the prisoner was indicted for attempting to set fire to a stack of corn with a lucifer match. Pollock C. B. told the jury " that it was clear that every act cbmmitted by a person with the view of committing the felonies mentioned in the 9 & 10 Vict. ch. 25, § 7, was not within the statute ; as, for instance, buying a box of lucifer matches with intent to set fire to a house. The act must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner under such circumstances that he has the power of carrying his intention into execu- tion. If two persons were to agree to commit a felony, and one of them were, in execution of his share in the transaction, to purchase an instrument to be used in the course of the felonious act, that would be a sufficient overt act in an indictment for conspiracy, but not in an indictment of this nature." " The dictum in italics seems to be erroneous,'' writes Mr. Greaves, " for there is no doubt that a man may be guilty of an attempt to commit a crime, though he be pre- vented by superior force from doing so." 1 Russell on Crimes, 1054. 4th ed. " There is a great difference,'' said Blackburn J. "between preparations ante- cedent to the commission of an offence and an attempt to commit the offence, as in the case of merely going to buy a gun wherewith to commit a murder." Re- gina u. Cheeseman, 9 Cox C. C. at p. 103. Commonwealth v. Bean.^ October Term 1853. Indictments upon Statutes. An indictment upon Rev. Sts. ch. 126, § 42, for malicious destruction of glass, must aver the glass to be part of a building. An allegation that it was " in " a certain building is not sufficient. The defendant was indicted upon the Rev. Sts. ch. 126, § 42, which enacts that every person who " shall maliciously or wan- tonly break the glass, or any part of it, in any building not his own, or shall maliciously break down, injure, mar or deface any ' 11 Gushing, 414. COMMONWEALTH V. BEAN. 173 fence belonging to or enclosing lands not his own, or shall mali- ciously throw down or open any gate, bars or fence, and leave the same down or open, or shall maliciously and injuriously sever from the freehold of another any produce thereof, or any thing attached thereto, shall be punished by imprisonment in the county jail, not more than one year, or by fine not exceeding one hundred dollars." The indictment averred that the defendant, " with force and arms, wilfully, maliciously, wantonly, and without cause, did break and destroy the glass, to wit, two panes of glass of the value of ten cents each, in a certain building there situate, not his own, but which building then and there belonged to and was the property of one Dorcas B. Prentice,